Free Culture Pitfall: Bait-and-Switch Free Licensing

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Last year, as I was checking the licensing and attribution on the tracks in my soundtrack library for Lunatics, I came across a bizarre and rather disturbing practice: bait and switch licensing as a ploy to sell music. This is a truly weird idea, if you understand what a free-license means, and it's deeply unethical, but here's what I think is going on: the artist (or more likely, some intermediary, such as a small record label) gets the idea of using a "free" loss-leader to try to draw people into buying a commercial/proprietary album. This is okay in itself, but the problem lies in that confusing word, "free".

They're not thinking of "free" as in "freedom", but as a price. So, they think they can give a work away and then take it back. Legally of course, this is nonsense with a Creative Commons license -- once you've released under a By or By-SA license, you cannot switch the license to By-NC-SA or "All Rights Reserved". Once the work is out there, it's free.

But how do you prove that? That's the part where this gets unethical: The standard answer is that I check the "verification URL" -- but the producer has given me their sales website as that URL. And they have changed the license since I downloaded! Oops.

How can you protect against such a threat? I'm not sure if there is any absolute way, but I decided to give myself a little bit of evidence by using a screen-capture tool to grab the webpage of album pages as viewed in my browser. Of course, I'm entirely capable of fabricating such evidence, so I'm not sure how solid it would be in court. But at least it's something.



Jacopo Nespolo's picture

Over here in Italy there is a thing called "data certa", which is basically a stamp on a picture that certifies it was created before or on a certain date. It is also becoming more widespread the use of special cryptographic signatures for timestamping digital documents. Both methods award legal value to the documents. Of course this comes for a fee, but maybe in your case, if you plan to use those songs in Lunatics, it could be worth it. I found a website offering it for 9.68 including VAT per file, but I am sure you can find it for a lot less.

openuniverse's picture

No Jason, the solution to people revoking free licenses (it's on the cusp of fraud, really) is not to go the non-free route. And contacting the rights holder "directly" is often next to impossible, that's one big reason to use free licenses in the first place.

It's pure douchebaggery to pretend to offer your work under a free license, then hide the fact that you did. This means people think they'll be able to share and remix your work, and they might, and then you'll remove the evidence that you allowed it?

Just save people the trouble and don't release it at all, under any license (including all rights reserved.) The media cartels are so intent on destroying the lives and livelihoods of anyone that reuses culture (and who doesn't?) that it's actually better to just NEVER PUBLISH than publish something non-free. I mean, I don't appreciate people playing crap on the radio that can't be used... for the same reason you wouldn't (as a programmer) appreciate someone reading NTKERNEL source code to you. Now you can't legally work on an alternative.

I'm not saying everyone that commits this (almost?) licensing fraud is a douchebag. I think it's more likely they (usually) don't know what they're doing. There's an element of innocence to much of it... but it's still douchebaggery, it creates real liabilities for your fans, and it plagues Jamendo, which sucks as I'm a HUGE Jamendo fan. ARTISTS! ***STOP DOING THIS***. (It happens on bandcamp, too.) Artists need better teachers.

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Terry Hancock's picture


Terry Hancock is co-owner and technical officer of Anansi Spaceworks. Currently he is working on a free-culture animated series project about space development, called Lunatics as well helping out with the Morevna Project.

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