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Why I'm not Impressed with Most Discussions of NFT Licenses

Now that the market for cryptocurrencies and NFT's are falling apart like toilet paper umbrellas in a monsoon, the biggest players in that space are doing whatever they can to "create value" for purchasers and to "resolve future issues," for those who paid thousands of dollars to own a .jpg of a monkey. As a result, if you follow news in the crypto/NFT space, you will be inundated with companies describing and posting their new licenses. Often those licenses are "creative commons" licenses. A license, in this context, is the set of rights that come with the purchase of a digital object. A "creative commons," license is a specific type of license that is, under some set of specific restrictions, available to the public to use for their own purposes, commercial or private, without paying a fee, provided that you follow a certain set of rules. The question of what licenses come with a digital copy of a thing are probably about three minutes younger than digital purchases themselves. If you want to know why they matter think about someone who sells books selling a .pdf copy of that book and how angry they would be if the first person they sold a copy to started selling copies of the .pdf for half price.

Not that license.

A creative commons license lets you resell the material using creative commons content, but usually you have to note somewhere in the final product that you're using the creative commons content, what that content is, that it's under license, and that license is available for anyone to review on a web link. Often you don't have the right to copyright anything in the creative commons license, though sometimes you're allowed to, so, if you created a picture book using that art, you'd own all the text, but the art is non-exclusively owned.

Before we get into this, it's important to note that most Intellectual Property (IP) rights people talk about are exclusive or exclusionary rights. I don't want a copyright on my book so that I can photocopy it and give it to my friends. I want a copyright so that I can stop others from doing that same thing. A copyright is the right to stop others from publishing a work of art. A trademark is the right to stop others from using a name, phrase, image, color, color scheme, or similar symbolic representation of a player in the market from being used by others. A patent is the right to stop other people from making or doing a thing that required a technological innovation. For this conversation, we're only interested in Copyrights and Trademarks. But I thought I should give a little background.

Inherent to the purchase of a digital document are, arguably, no exclusive rights at all. You have, when you purchase a digital book, the right to read it. You may also have the right to print a copy for personal use. You (usually) don't have the right to publish new copies and sell them. You certainly don't have the right to stop anyone else from doing any of the above.

Because of the unique nature of NFT's, purchasers of NFT's have, in many cases, believed that their ownership of an NFT included some or all of those rights. In some cases, ownership of those rights were implied. In some cases they were expressed. In other cases they were insane presumptions that did not apply at all. Now, you might notice I never described any as "transferred," "provided," "given," "bought," or "sold." I don't use those words because their use would imply that they happened, and in order for that to happen, the person transferring the rights would have to own them to begin with.

We're talking specifically about Copyrights at this moment. Yuga labs was the first NFT to provide an expressed license to own the images of its products to the people who bought them for those people to use. Their most recent license variation also entitles those people to pursue lawsuits to protect IP rights without Yuga being part of the suit. When Yuga did this, they gave owners of their NFT's absolutely nothing.

I don't mean those buyers got nothing of value. The exclusive right to print a particular ape on a t-shirt, pair of jeans, or other location may have some value or not. The market can make that call. But, the exclusive right to do any of those things wasn't transferred, shared, or provided by Yuga, because Yuga didn't own one. American Copyright law is an interesting thing, but it only protects artistic creations by human beings. If G-d himself writes a book and you just publish it, you can't get a copyright issued. If your pet dog paints something, you can't get it copyright protected. And if you design a computer program to make pictures by pulling together random elements into an image, you can't get copyright protection for any of those pictures. The EU has similar rules, as does England which is no longer part of the EU. I'm pretty sure most of Asia does as well, but don't quote me on that.

This doesn't mean that there are no such things as Copyright protectable NFT's. If you paint a painting and photograph it, you can copyright that. If you design something using Blender and digitally scan it into a set of visual files then put them up on the blockchain, you may be able to copyright those. But if you design a series of graphic elements and then have a computer pick from them randomly to design a visual "Mr. Potato Head" like the Cryptopunks, Bored Ape Yacht Club, or any other such project, you will find that you don't have anything you can copyright.

And if you don't have the ability to exclude others from copying and publishing a thing, you can't manufacture the right to exclude others by offering it to someone. Yes, they could offer their buyers the right to put their images on stuff and use those images for commercial purposes, but, so what? I can put those images on stuff and use them for commercial purposes. I just can't do so exclusively.

They can share Trademark rights, but that doesn't limit things to the image I bought technically. The Bored Ape Yacht club is a Trademark. If I have an unclear right to the market things using their project's name, I can put whatever images I want under it. This is something that Yuga created as a possibility when they created their open license.

How does all this relate to license discussions you may ask? Simple. I read multiple articles a week on this topic, some are short, some are long, some are descriptive, some include links to license agreements. But I don't ever see anyone talking about these and acknowledging that, the copyrights that they are offering, denying, discussing, or otherwise limiting, probably aren't theirs to give. And the fact that someone can read these and see all these changes just means that people can keep thinking that they own something when they buy this stuff.

And that disgusts me. Because honest reporting should clear up that there is no such right.

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