On Non-Fungible Tokens, Faces of Our Leadership, and Supporting Artists

by Bradley M. Kuhn and Karen M. Sandler on December 23, 2021

We were certainly surprised this week to be told that we (Karen and Bradley) were “for sale” at approximately US$200 each. It's not us personally that's for sale, of course. Rather, the sale is for financial derivative products that are based on digital images of us. Because of the connection to these financial derivative products (called NFT) to our work on ethical technology and FOSS generally, we share herein our analysis of the situation. And, in the unlikely event you were thinking about buying one of these risky financial derivatives — we give our recommendation for an alternative way that you fund both Software Freedom Conservancy and the artist who took the photographs in question while avoiding derivative products entirely.

Basic Backstory

Photo © 2017 by Peter Adams, licensed CC BY-SA

On 2017-03-04, we (Karen and Bradley) sat for a photo shoot with a photographer named Peter Adams, who later released one photo from each of our shoots as part of a larger work called “Faces of Open Source”. We were surprised to learn that we were the only FOSS leaders (among those who had been photographed at that point) to raise the question of FOSS licensing for the photographs themselves. Sadly, Adams was not interested in licensing the series under a Free license. We nearly declined to continue with the photo shoot, but Karen had a compromise idea: if Adams agreed to license one good photo of each of us back to us under CC-BY-SA, we would agree to sit for the photo shoot. We both agreed to sign a release of copyright claims. Rarely do subjects/models hold copyrights anyway on photos (unless it's a selfie), so we determined, especially given that we were in town for the Southern California Linux Expo, this photo shoot was not much different (ethically and morally speaking) than walking around the conference and being photographed candidly, in which case we'd also not hold copyright. We did not relinquish any other of our rights and permissions, but we did agree that our photos could be part of the “Faces of Open Source” art project. We were really happy with the photos, and were glad we had CC-BY-SA photos to use. We appreciated that Adams took the time to prepare them for us.

Non-Fungible Tokens (NFTs)

There has of course been much discussion about NFTs and how they operate on a blockchain. We suspect most of our readers already know the technical details of how NFTs work. What we'd like to focus on is the high level description and how it relates to works of authorship and FOSS licenses.

First and foremost, note that, to our knowledge and understanding, sale of an NFT is generally unrelated to the copyright questions of the image. The NFT is (roughly) a cyptographically-signed checksum of the image. “Owning an NFT” simply indicates that — on some blockchain somewhere — a group of people who participate in that blockchain have cryptographically verified that the particular checksum is associated with you. NFT hawks liken this to “owning” the underlying work, but this is not true. Consider it this way: the “underlying holding” is the photograph itself, which has a financial value based on (a) the fame of the subject, and (b) the artistic ability of the photographer to get a good/intriguing photo of that subject. The NFT, by contrast, isn't the photo, it's “bragging rights” of having others identify that you paid some amount money for the blockchain participants to assent to your “ownership” of a checksum of that photo. The NFT's value, thus, may move in the same direction of the value of the copyright of the photo (or, say, a physical print of that photo), or it may not; there is no way to know. Moreover, we suspect, given the novelty of NFTs, that financial experts don't even yet have reliable equations to understand how NFTs financially relate to their underlyings (as exist for other financial derivatives like futures contracts and stock options). While many people investing in NFTs understand their nature and understand what they are spending money on, we also think there's a predatory component of this industry that exploits people who don't have a good understanding of how NFTs work. We fear that many other people spend money on NFTs without really understanding what they are buying.

Photo © 2017 by Peter Adams, licensed CC BY-SA

Meanwhile, one need not have a copyright holdership or even a license to create an NFT of any given image. We could sell NFTs of the same images if we wanted to, even though we don't hold the copyright. We could sell NFTs of the extremely similar color images (shown here) that Adams' licensed under CC-BY-SA. But, we aren't going to do any of that. We think selling NFTs of these images is a silly thing to do.

A Few of the Problems with NFTs

NFTs have many problems, and we aren't going to list them all here, as many are outside the scope of ethical technology. However, the most concerning problem is that most NFT blockchains use “proof of work” systems to verify transactions, which costs computing resources (including intensive use of processors, that produces heat, wastes electricity, and risks wearing out the processors more quickly than more traditional uses). While NFTs are not yet widely adopted (and thus the costs in this regard are currently nominal) most researchers believe that long-term and widespread use of “proof of work” is ill-advised (for environmental and other reasons).

For our part, we probably would not have commented publicly on our concerns about these issues. But, Adams made NFTs for specific images of us, and there is mostly nothing we can do about it — other than state our opinion of it. We would be remiss if we didn't point out that other laws besides copyright are involved here. We are left wondering whether use of one's faces to promote NFTs in this manner could be construed as a violation of California's Right to Publicity Law, and standard releases often don't broadly grant any rights to endorse products like NFTs. (In this case, our rights releases were wholly narrowed to the “Content”, which here is the actual photo, and we were the “models”). It's unclear how far a right to publicity would extend as a legal matter, and we have no intent to explore that. We agree with others in the “Faces of Open Source” series that Adams made a mistake (ethically and morally) by not asking the subjects to agree to have their names associated with the sale of NFTs (particularly given the serious ethical technology considerations about NFTs).

Getting Artists (and Developers) Paid

One of the mission goals of Software Freedom Conservancy is to fund developers to work on FOSS (related to our member projects and initiatives). We believe strongly that folks who do Free Culture works should, similar to those who do Free Software work, get paid for that work. What's more, even though Adams chose not to make “Faces of Open Source” a Free Culture project (opting instead for a traditional proprietary model), we still think Adams should get some compensation for his work — especially for the two photos he licensed as CC-BY-SA. But we think NFTs is the wrong approach.

We originally proposed selling photos in this blog post as a method to raise funds for Adams' work, but Adams wrote to us and indicated that he had not been experimenting with NFTs as compensation for his past work but rather to both help fund future Faces of Open Source photo shoots and raise money for FOSS organizations like ours. So Adams and we all suggest that if you like FoOS, please donate to our current fundraising campaign and other organizations doing good work in this space.

The Hate-Mail We Expect

We know that many of our Sustainers and fans believe deeply that NFTs and other blockchain-related technologies like cryptocoins are world-changing technologies. We remain neutral on that point; we admit that we simply don't know how important these technologies will be long-term. However, we do encourage everyone to consider the ethical implications of technology like this. Plowing ahead with any technology simply because it's new and exciting often leads to unintended dystopian consequences (such as already occurred advertising-based, algorithm-controlled platforms from MMAGA companies).

Finally, this is of course not a full analysis of all the moral and ethical implications of NFTs. We do think NFTs might have some interesting use-cases, such as academic institutions verifying transcripts and degrees of students to third parties (and Karen loves some of the silliness connected with many NFT offerings). If done fully with FOSS, we don't object to further research and consideration of how NFTs can be used for good purposes. However, we approach with skepticism the notion that financial derivative transactions should receive the primary use-case focus around new technologies, as has happened with NFTs. We should evaluate all new technologies first and foremost with a question of how they can improve the lives of the most disadvantaged and underrepresented individuals.

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