[cc-community] What does NC means?

Terry Hancock hancock at anansispaceworks.com
Sat Nov 10 15:09:03 EST 2007


jonathon wrote:
> The hard case is whether or not _apparent_ gratis distribution is
> automatically non-commercial.

Actually what screws things up is the innovation that made commercial
broadcast television a success in America when no one thought it would
be -- advertising.

Without that example of an obviously commercial business operating on
purely gratis distribution of media, no one would've imagined that
trying to recover money from advertising materials which happened to be
delivered on the same channel as the media is being distributed could in
any way be considered "commercial use".

Yes, newspapers did it before, but then, people still paid for those,
and most people imagined (whether it was true or not) that the
publishing industry subsisted on sales.

It's very easy to draw a line with "non-commercial" if it just means
that you don't charge any money to access the media. But if you have to
look at all ancillary and auxillary ways someone could in principle make
money which has some -- however tenuous -- relationship to the value of
the media, then it's hopeless.

Why?

Because ALL production that you make is in some tenuous way related to
ALL of your activities: maybe you learned from it, maybe it made you
popular, maybe people formed a habit of asking you where to find media,
maybe it just made you look like a good citizen that others want to support.

Even if none of that is the reason you did it, you still are "profiting"
by your actions.

In fact, one might ask what is the point of Creative Commons licensing
if the only works that can be licensed are ones which are totally
worthless in all respects to all entities?

My point is that there *is* a hard line for "non-commercial" -- but the
license explicitly crosses it. And after that, there are no hard lines,
just extremely fuzzy gray areas.

And if one takes the conservative choice and assumes that all gray areas
are forbidden, then there's nothing left. The only ways in which the
work can still be used are the ones permitted by fair use -- and then
only because (depending on your theory) the license exempts "fair use"
by name or because, due to "fair use", it isn't binding to begin with.

In other words, NC licensing is completely equivalent to All Rights
Reserved -- except for the fuzziness.

In fact, what NC exactly replicates is the unspoken law of fan
distributions: "you probably won't get sued if you don't make a whole
lot of money in any way that clearly relies on the work or that the
author notices as a problem".

But it achieves *nothing* by encoding this because it is legally crafted
to exactly encode the same uncertainty, vagueness, and LEGAL RISK that
using the unwritten law carries.

Some people have lauded it as a "signalling device" -- but honestly
there are better ways of doing that. Either by picking a free or
semi-free license with well-defined limits of the authors' claims (which
actually is better), or by simply saying "be good" or some such
nonsenses -- which is exactly as good (or bad) as using NC.

Some people point to Magnatunes as a success with NC licensing. But it
would work just fine without the NC clause -- they could just as easily
use an ARR license on the works. At most they just need to license the
work to be used on more than one device or "passed to a friend". The NC
license really doesn't help that much.

At one point I thought it was meaningful too, but after seeing so many
different interpretations of what NC means, I can only conclude that
there is NO consensus: the union of opinions is the universe and the
intersection is the null set.

Cheers,
Terry

-- 
Terry Hancock (hancock at AnansiSpaceworks.com)
Anansi Spaceworks http://www.AnansiSpaceworks.com



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