Sustaining grant-funded software

As I've written before, I am impressed by the Our Courts foundation, web site, and materials. My children found the interactive games compelling, and I'm considering using the volunteer guides in their schools.

I'm disappointed by their decision to use CC-BY-ND-NC as the license for the materials, in particular the inclusion of the NC (no commercial use allowed) and ND (no derivative works allowed) restrictions. The definition of "non-commercial" appears intuitively obvious, but as the discussions at creativecommons.org have demonstrated, its full import is still unclear. When coupled with ND (no derivatives), it's almost unnecessary; since no one can make a derivative work, anyone trying to commercialize the unchanged content would have to compete with Our Courts, which is providing the same work at no cost. The economics apparently wouldn't encourage such an attempt. There's also a compelling argument that restricting commercial use is unnecessary to protect the freedom of works and is incompatible with the principles of free software and free culture.

However, the use of ND is a bit more of a concern to me; it means that adopters can't adapt the materials if appropriate: altering vocabulary to address a different grade level, translating to another language, adding fact patterns or rights to the card hand-outs in the volunteer guide. Each potential improvement is a derivative work prevented by the license. Further, it means the games can only be re-distributed intact; downstream recipients, programmers and content developers, cannot add a new fact pattern to "Supreme Decision", or add/alter fact patterns to "Do I have a Right?" (DIHAR), add/change lawyers, add/change law firm upgrades, add rights, translate, etc.

I will guess that their team has plans to create more and different resources (games, materials, etc.); I look forward to them as they arrive. However, as they move forward, older resources will tend to ossify. By removing the no-derivative (ND) restriction (and perhaps by replacing it with SA) they may in fact improve the chance that these materials stay relevant and become more widely adopted, as they are adapted to new statutory environments, and are translated into Spanish, Chinese, and other languages. I recommend they use the CC-BY-SA to make it possible for Our Courts to foster an ecosystem around the content, and leverage their investment in those impressive materials by taking advantage of the enthusiasm and efforts of a wider, engaged community.

No grant-funded project wants to think about what happens when the soft money runs out - but funding doesn't last forever. Until Our Courts figures out an economic model that's self-sustaining, they run the risk that when they can no longer afford to publish and improve their materials, that investment and hard work disappears. They might take a look at the Connexions repository as an example of a project which uses the CC-BY license, thereby ensuring that their materials will continue to be updated and useful by the community even if their own funding should run out.