Ad-based revenue of website containing cc material
james.grimmelmann at yale.edu
Mon Aug 9 19:53:56 EDT 2004
At 04:21 PM 8/9/2004, Haig Shahinian wrote:
>Regarding creative commons licensed work using the non-commercial clause:
I speak neither as a lawyer nor on behalf of CC. I speak only as me, an
under-educated law student who is often wrong.
>Suppose I were to offer said cc-licensed works on a website which
>contained advertisement and the corporate entity that legally owns the
>site generates revenue from these ads. The cc-licensed material would
>be free and open to anyone visitng the site, maybe free reg. requirements.
>Would this be considered infringement?
It might. One major issue is what the ads are for. If they're something
like Google ads that are for unrelated outside services, that seems more
commercial than ads for other content on the site. It sounds as though the
ads are external, since they're generating revenue.
The relevant language in the license refers to whether the use is
"primarily intended for or directed toward commercial advantage or personal
monetary compensation." There has been very little judicial interpretation
of such language, so it's very hard to say whether a site with ads would
trigger it or not. A great deal might depend on the specific facts of the
case, and also perhaps the judge's mood.
>Does it make a difference whether the corporate entity owning the site
>is structured as non-profit or for-profit?
This may not be particularly important. If it were for-profit, the
relevant facts would be whether the non-commercial content was generating
ad revenue that could be directed elsewhere (very very bad) or whether it
was generating goodwill for the company (also fairly bad). A purely
philanthropic use ("presented by foo.com as a public service") might be
Non-profits could still raise these concerns, though, which is why I'm not
sure the corporate structure is the key issue. A cancer-research
non-profit making money by selling ads on someone else's CC-NC music, for
example, doesn't look too much better than a for-profit doing the same. It
would probably be less worrisome if a non-profit was getting goodwill out
of "giving" away CC-NC content, but that's just my speculation.
>Most, if not all, the revenue goes towards hosting and operating costs.
The difference between "most" and "all" could be significant. In my mental
reconstruction of a hypothetical judge hearing such a case, the difference
feels like it makes a difference.
My recommendations if you want your use of CC-NC content to pass muster --
and you so totally should not treat this as legal advice -- are the following:
You could make some money from ads, provided that it plowed all the money
back into the hosting and operating costs OF HOSTING THE CC-NC CONTENT
ITSELF. This should not be a case where having the content up helps you
defray other costs you'd pay anyway. It really should be something where
you can point to the books and say "we run a net loss on providing this
content." If it's a for-profit behind the content -- or a non-profit that
does something unrelated to the content -- the site had better not smell
like a promotion for your other work. Any "presented by" link should be
modest and seem like an "about this site" page, rather than a prominent
ad. And in any event, the ads ought to be modest and not distracting from
the other content: the page really and genuinely MUST seem like it's
content with a couple of ads, not like some ploy designed to increase ad
Doing the above is no guarantee that you're okay, but personally, I think
these precautions, taken in combination, indicate that the "primary intent"
of the use of the content is NOT the advertising.
Enough disclaimers for you? Do others on the list have other takes on the
More information about the cc-licenses