Can you use “free culture” works in an LMS?

So there is a slick new interface on the Creative Commons Choose a License page. Nice work. One of its features is informing the user whether or not the selected license is a “free culture” license.

Let’s ignore that as of now we still lack a clear definition of what “non-commercial” means (I understand the pending 4.0 versions attempt to clarify that). And I won’t get into the not-so-subtle value judgment that is applied when people select an NC license (see image above). Though I will note here that I think Heather Morrison, in her wonderfully named Imaginary Journal of Poetic Economics has forwarded rationales (examples here, here and here) in favour of NC licensing that strike me as worth addressing.

The CC license wizard links to the Freedom Defined wiki, which is fine as far as it goes. I poked around a bit to see how a “real” free culture license would define its terms, such as BY-SA.

It listed the following among its list of restrictions:

No DRM or TPM [DRM – Digital Rights Management, TPM – Technological Protection Measures] – You must not restrict access to the work using technical measures, or otherwise attempt to impose limitations on the freedoms above.

So, to finally get to the point stated in the title of my post, if you were to take a “free culture” resource, and stick it in a lesson in a password-protected Learning Management System, would you be violating that license? Seeing that CC BY and BY-SA licenses forbid access control prohibition – is it possible that CC licensed resources cannot be used in password-protected spaces at all?

32 thoughts on “Can you use “free culture” works in an LMS?

  1. It’s an interesting question. The relevant language, I believe, from the CC legal code states:

    You may not impose any effective technological measures on the Work that restrict the ability of a recipient of the Work from You to exercise the rights granted to that recipient under the terms of the License. This Section 4(a) applies to the Work as incorporated in a Collection, but this does not require the Collection apart from the Work itself to be made subject to the terms of this License.

    In my non-legal reading, I think this reads as that you can distribute the CC-licensed resource how you want (including from within password spaces) but you can’t build into the resource any DRM or other schemes that restricts other people from distributing the resource under the same license conditions. Thus, I might be able to upload a CC-BY article or mp3 file into a LMS, but I can’t modify the article or file itself in a way that restricts further distribution.

  2. Thanks Will… I had always muddled along under a similar (if not so well-expressed) understanding of CC. But the language on the Free Cultural Works wiki seems to go a bit further:

    The “no technical restrictions” dictate is apart from “free format”, and indicates “no technical measures are used to limit the freedoms enumerated above”… That’s pretty broad language. The reading you propose may well still hold, but I don’t see language on the wiki anywhere to support this kind of password exception. At best, I think it is kept ambiguous.

    Besides password protection, LMSs would obviously have to make it relatively easy for users to download free culture resources that have been incorporated into courses… In my experience, such access to source files in a course presentation is not always a given. There might also be implications for other rules set out within a course environment.

  3. Of course, the language I am referring to is on the “Free Culture” definition, not the CC license. But CC seems to be inviting this ambiguity by linking to the wiki off of its “Choose License” wizard and the endorsement of “free culture” that is communicated.

  4. Perhaps the question comes down to applying a free culture license to an object versus reusing an object with a free culture license. If you go back to the essential freedoms of Free Culture Licenses, a key freedom is:

    The freedom to redistribute copies…..There must also not be any limit on who can copy the information or on where the information can be copied.

    Thus, I would say that free culture licensed works can be used in the LMS , but that perhaps it’s possible, due to the technical restrictions of a system, that objects within a closed LMS may not be able be licensed in such a way (thus no SA files…?). I agree that the technical measures clause is ambiguous – does it apply to the object itself, the environment/system where the distributed, or some either/or combination?

  5. Again, I think your reading makes sense Will, thanks.

    I’m not trying to create confusion, just honestly reflecting my own misgiving how things are used. I’ve always unequivocally advised people in LMSs to use open content — if only to promote the reuse of underused materials, and also in the hopes it might help edge people to open practices themselves.

  6. I will never understand why CC gave into the zealotry and madness of the Free Culture License crowd. Who cares how a random third party categorizes Creative Commons’ licenses? I know I could not possibly care any less.

    The most blatantly inaccurate part of the whole mess is FCL giving guidelines for licenses that meet their standards that are obviously not obeyed by the CC licenses. The CC licenses say nothing about DRM, and yet here the FCL folks go creating minor confusion with someone as knowledgable about this stuff as you. I wish CC would dump the FCL designations. NOTHING good results from them.

  7. David – not sure I know where you stand here. Maybe you should get over your fear of saying what you really think…

    As I noted above in response to Will, I hope I am not seeming willfully perverse by raising this issue. It strikes me as much as an issue of communication as anything. As indicated by the number of people linking to this on Twitter, and knowing that at least a couple people from Creative Commons have seen my query… It’s interesting that so far Will has been the only person to venture an interpretation in response.

  8. The final sentence in the Freedom Defined section on CopyLeft is “Strong copyleft also forbids linking or integration the subject work into larger works/projects that are not also licensed with a license with compatible copyleft terms. Weak copyleft lacks such a ‘viral copyleft’ requirement.” Implies that it is only ‘strong copyleft’ which might suffer in a closed LMS and that non ‘strong copyleft’ material can be used in a work or project that doesn’t have a compatible license. Will’s interpretation holds water for me and I would see making a file downloadable from the LMS (typically using the same license) as being permissible. Seems to fit the ‘Collection’ definition used by CC and it is not seen as an adaption. Anyone who can get to the file can download and use the file. Would TRM be more the equivalent of bundling that file into another object where I can’t easily extract it and use it? Say in a flash object or something compiled LMS activity.
    The CC Legal page has this “You may not impose any effective technological measures on the Work that restrict the ability of a recipient of the Work from You to exercise the rights granted to that recipient under the terms of the License”, and I read this to mean that as long as I can get to the file (at which point I become a recipient) then I must be able to exercise the rights granted, in this case to remix, reuse and distribute. If I can’t get to it then I’m not a recipient.

    Of course I’m not a lawyer and I’ve never even heard of Boston Legal.

  9. I would suggest that if someone creates a work which will be available *only* within an on-campus LMS, the same applies. However, If you make an existing Free Cultural Work part of a collection on a password-protected LMS accessed via a *public* network, that is publishing, and copyright applies (incl. CC). I think Nigel’s interpretation is sound. Assuming it is technically possible for each LMS user to download the work separately, in a patent-free format (ie not bundled with non-free works, or in formats which prevent copying, or editing to create derivatives) both the CC license requirements and the Free Culture definition would be satisfied.

    This is analagous to the question of whether a person who builds a customized version of a Free Software licensed package is obliged to share their changes. If they only use the program they’ve written on their own computer, or a private network, they don’t. Since it isn’t published, copyright (incl. FS licenses) simply doesn’t kick in. It’s when they publicly distribute the new program (or offer a service to the public using it, in the case of the GPLv3 and AfferoGPL) that the obligation kicks in to make source code of their changes publicly available.

    As for David’s ad hominem attacks against the “Free Culture License crowd”, he seems to ignore that the work done on FreedomDefined by Eric Moller (with assistance from Stallman, Lessig, Angela Beesely and others) was a major stepping stone in the relicensing of WikiMedia sites (incl. Wikipedia) to be CC-compatible. No small achievement for our movement.

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