If there's a unifying spice blend in this platter of sausages, it is that they all relate — in the end — to something (especially the arts, whatever the hell that means) being a special snowflake not subject to other considerations. And "entitled" to whinge about it when those considerations are imposed.
- We'll start with the egregiously-misnamed "Creative Commons License." It's misnamed because the CCL is a covenant not to sue — revocable and/or evadable under a wide variety of conditions — and not a license. For starters, the "licensee" has none of the rights associated with licensees, such as an equitable right to nondisparagement by the licensor… (Interestingly, one can say much the same about the purported "license" granted by publishers for static content like e-books and downloaded music/video, but that's for another time.) As one of the proponents now notes, the CCL has bugs in addition to its features. (n.b. It took me about three minutes to spot this particular bug in 2005. I was shouted down when I pointed it out, primarily because I was directly associated with Ellison v. Robertson and therefore must have intended to close down the entire internet.)
The fundamental problem with the CCL — indeed, with copyright in particular and intellectual property law in general — is failure to distinguish viewpoints and interests along two distinct axes, in favor of shoving intellectual property into the familiar confines of real-property law structures. The obvious failure is that IP law is written by, concerning, and in relation to transferees, not actual individual creators (and this matters are great deal, even for collective creations like a motion picture). The less-obvious, but probably more damaging, failure is that IP law fails to engage with the distinction between creative process and creative product. Whether it could do so successfully is questionable; it doesn't even try. And the CCL, if anything, is worse than core IP law on this second axis, however much it represents in concept some at-margins improvements on the first one.
- At least Terry Pratchett's estate seems to recognize that the arts — even speculative fiction — live in the real world. Of course, it's also worth considering Jack Monroe's background as an influential, but not determinative, issue. There's that "process versus product" thing again!
- Of course, the closest the transferee population tends to get is "2-4-6-8-time-to-reappropriate" cheerleading. Which, I suppose, beats outright theft. Perhaps not by much, when the wrenching from context is sufficiently severe.
- Returning to that first axis for a moment, consider the difficulty Jane Austen had getting published. Hidden in here, though, is one of the reasons that I keep referring to "commercial publishing" instead of "traditional publishing": If one reads between the lines, one sees that the expectation for publication was a vanity-publishing deal. That's right: Vanity publishing is "traditional publishing." And, if one actually delves into the depths of excessively consolidated media conglomerates that include substantial "publishing" activity, one will find that's arguably comparable.
The fundamental problem is that transferees can numerically identify a risk-basis to the freeflow financial capital behind them. Creators of intellectual property can't… and it's made worse by mistreatment of IP creation as a "purely labor" activity by tax codes the world round. Since there are numbers associated with the transferee's concerns — however unreliable and all-too-often entirely fictional — that makes them appropriate subjects for policy arguments and drowns out policy arguments on the process side of things. (Disturbingly parallel to judicial blindspots about judicial conflicts of interest.)