At the Copynight gathering the other night, someone suggested that the Creative Commons might not be working out as well as Lawrence Lessig thinks, at least for music. Apparently in his experience (the speaker, not Lessig), when he's tried to use music released under one of the CC licenses, on the occasion when he's mentioned it to the artist, the artist has tried to insist on other terms.
You can't do that with a CC license. One of the advantages of a CC license is that it makes clear from the outset what the terms are under which others can permissibly use the work, saving everyone the trouble of having to separately negotiate everything every time someone wants to use it (in a way that copyright law does not already permit them to use it.) As an extra upside for the artist to release the work under a CC license is that the work can be indexed in a library of like-released work, in this case a library of songs, thus giving the musician behind it extra exposure for his work because there will be people who look in that library JUST BECAUSE it is full of work that they can easily use under the CC license.
Now, you *can* change your mind at any point about your licensing terms. You can move the work to a more restrictive CC license, or you can stop releasing the work under a CC license at all. BUT – anyone who used the work under the previous, more expansive license still can. You can't change the terms for those people retroactively. The restrictive license will apply only to people who use the work after the change in terms. Of course, realistically it will be pretty hard to keep track of who used what work and when, so it's not really a good idea to try to do this. Furthermore, because another CC advantage is that it can minimize disputes because the terms are so universal, changing things up puts the risk of disputes back into play. It's better to think carefully at the outset what terms you want to use, and then stick with them. Or start with a more restrictive CC license, and if you change it, change it to one more expansive in its permissions. There are actually several CC licenses to choose from: some let anyone do anything with the work, but others are more restrictive (for instance, prohibiting commercial use but allowing all other). So a musician using a CC license can be selective about who gets to use the work, and how, even though they will not separately negotiate with each person who wants to use it.
(Of course, they still can negotiate separately with anyone who wants to use it in a way not already allowed by the license. Using a CC license does not lock an author into ONLY releasing the work under those terms, but those terms need to be honored for anyone using the work to whom they apply.)
After relating his tale of musicians repeatedly (and impermissibly) trying to renegotiate the terms of their CC-licensed work, he came to the conclusion that musicians and law just don't mix. It's a tremendous over-simplification, but I think he might largely be right.
There had been an earlier discussion that evening about the merits of having lawyers run companies, versus MBAs. I'd seen something on the Internet about this before, where it was suggested that a lawyer might be more likely to keep the company out of Enron-type trouble, since they'd be more likely to know the law. But lawyers would probably be much more risk-averse. So much so that they would be less likely to take the kind of gambles necessary to really grow the company. Though they would be completely comfortable navigating rules, lawyers themselves are often perhaps tempered thinkers, seeing the boundaries and wanting to stay within them lest they incur some risk of litigation.
But a musician, a creative person, depends on pushing boundaries and discovering new things. Limitations are anathema to creativity, hence why law is anathema to musicians in general. It's the very opposite of their essence: while their creativity wants to wander freely, the law wants to rein them in.
Of course, I think the law in general is mystical and labyrinth to most non-lawyers. But most laymen can generally avoid having to deal with it too much. Sure they deal with it in basic transactions, marriage, taxes, etc. But for the most part, if a lay person tries to stay out of trouble he will never have to really learn too much about the law.
A musician, being a musician, on the other hand, must confront the law at every corner. Even the very act of expressing their art runs headlong into a gigantic, international scheme of intellectual property law. Plus to support their craft they necessarily will have to deal with sophisticated contract law – signing agents, record labels, even fellow bandmembers. To do this successfully they really need to understand the law's nuances, but how can they be expected to? The law is not often the area they've spent their efforts mastering. Yet they must, because otherwise as they practice their craft they will run smack into some sort of legal limitation that can stymie their creativity.
I think there are some musicians for whom the law itself poses a creative challenge that they get excited to meet. Some of the pioneering musicians using CC licenses, perhaps. For them it seems like they are learning a new, exotic instrument, wanting to stretch the law to its fullest lengths as part of a creative exercise. But for most artists I think the law is just an obstacle, an inconvenience that they are forced to master in some way lest they become victimized by those who have.