More on Licensing MOOCs

After reading yesterday's post about MOOCs, a colleague asked me why I preferred BY-SA licensing to BY-NC-SA licensing. Now that looks like a technical question about lawyerly alphabet soup, but it is actually a basic question about what HarvardX is trying to accomplish. The faculty should be discussing the nature of the HarvardX intellectual property policy, and if we don't, we'll have another explosion like the one that happened this year when Harvard unwisely sent around detailed proposed revisions to its IP policies and then had to pull them back for reconsideration after a faculty explosion.

To begin with, we need some consensus on what we are trying to accomplish with HarvardX and with our membership in EdX. I think it is fair to assume that among our goals are (1) to extend our educational reach, that is, to spread learning to more of the world; and (2) to cover our costs and to make a profit that can be used to support our traditional educational, research, and scholarly functions. Harvard has articulated other goals, such as to develop tools, and data on teaching and learning that can improve undergraduate education, but I want to focus on the first two, which I don't think are in any way inconsistent with the others.

Now I am not sure some professors even realize that (2) is a goal. Some professors are diffident about any talk of "business models" and so on, but also bemoan the budgetary cutbacks they have experienced to their educational and scholarly efforts. HarvardX presents a potential new revenue source. Of course there are alternatives. Maybe some alum would want to pay the full cost of HarvardX and we would not have to worry about receiving revenues from it. Maybe Harvard could save some money elsewhere and use it to pay for HarvardX. Realistically, I think it makes more sense to try to get HarvardX to pay for itself and more, but that is an assumption. After all, Harvard could in theory decide that undergraduate tuitions should subsidize HarvardX in the long run, and not the other way around. So while I want to mark (2) as an explicit assumption which has not been explicitly stated as far as I know, I hope it will not be controversial.

And of course precisely what policies might work the best to achieve both goals (1) and (2) also depend on how big a profit, per (2), Harvard wants to generate from HarvardX. It's very unclear, to me at least, whether more revenue would come from trying to get a little bit of money from a lot of people or a lot of money from a few people. That is not the only consideration; the latter would, of course, be in tension with goal (1). Tradeoffs everywhere, and doubtless different MOOC providers are going to be experimenting with different approaches.

Now to the question of Creative Commons licenses. A BY-SA license lets other parties use the materials as long as they are attributed to the creator (Harvard in the case of a MOOC) and as long as the derivative materials carry exactly the same BY-SA license. This assures proper credit is given where it is due, and encourages others to add to the "creative commons," the wealth of publicly available raw materials that others can use to construct other creative works.

Now relaxing copyright in this way, it may be argued, carries some risks. Some professors might lose their jobs, the fear voiced by the philosophers at San Jose State University. That is an interesting moral question related to the frictionless information universe, about which I would love to hear Professor Sandel expound a bit more. But that is not today's topic.

Once we make our materials openly available, someone could do something with our creation that we don't like, and we would have surrendered our right of disapproval. True, that is part of the loss of control that comes with greater openness. But even without surrendering any of our copyrights, we are not immune against fair use by others, including harsh criticism and parody. Movie and book reviewers do not need studio or author permission to quote from a work in the process of ridiculing it. We should have enough confidence in the quality of our works to think that they will be used more for good than for harm if we relax control of them.

Another objection is that someone else might make money from some derivative of our works. That may be seen as somehow morally offensive: if anybody is going to make money from our works, goes our instinct, it should be us. That objection is addressed by a separate Creative Commons license, BY-NC-SA, that adds the following "noncommercial" clause:

You may not exercise any of the rights granted to You in Section 3 above in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation.

Why not use this license instead?

One problem with this language is that it is not clear what exactly it excludes. If materials under such a license get used by the profitable Extension School of Podunk University, is that disallowed, or is it allowed because Podunk U is a nonprofit even if its Extension School tries to turn a profit to be used by other programs of the university?

But another problem with the "NC" clause is that it is not clear why, morally, we should care whether the derivative use is commercial or not. Just to take two extreme examples: Would it really be morally good for our materials to be used by Ohio State University, whose president receives a salary of $1.9 million, plus use of a private jet and other amenities, but morally bad for our materials to be used by a small-scale Mongolian entrepreneur trying to offer a technical education to impoverished Mongolians by creating a private technical institute that charges modest tuitions and turns a small profit?

In fact, the whole element of moral indignation that leads to resistance of the simple BY-SA license is introducing into American copyright an element of "moral rights" that is part of the European, but not American, copyright tradition. Under the US Constitution, the purpose of copyright is not to guard the moral rights of the creator, but "To Promote the Progress of Science and the Useful Arts." And that, surely, should be Harvard's objective, per (1) above, in whatever license it cuts for use of its MOOCs.

Under a simple BY-SA license, any for-profit that made a derivative work using Harvard materials would have to acknowledge that they came from Harvard (but then wouldn't most students prefer to get the materials from their original source?), and would also have to make their modifications and enhancements available to others, commercial or noncommercial, on the same basis. I doubt that for-profits would see taking Harvard materials as a viable business model on those terms. But if one did, and somehow produced educational products that were so superior to ours and could make them available so much more cheaply that it could overcome the natural market resistance to picking Unknown Corp's products over Harvard's, well, more power to them. We shouldn't be using legal barriers to win a game we can't win on the merits.

I expect that a lot of lawyerly thought has already gone into the license terms and business models. I have no real expectation that Harvard will go with a BY-SA license; probably it will come up with its own license terms. But the faculty here and elsewhere are only now coming to grips with the force of the MOOC tsunami, as I suggested in yesterday's post. Since they are not merely actors in this drama but the actual agents of change, they should be engaged in a realistic conversation about the program's means and ends, and what they think about hypotheticals like the ones I have posed.