[cc-licenses] Does this case falls under CC Attribution-NonCommercial 2.5?

Mia Garlick mia at creativecommons.org
Thu Sep 7 07:34:25 EDT 2006


hey christoph,

the relevant intention as to what NC means here is yours - if you  
feel that this is a commercial use then you can argue that it is.

two things that may assist you - in the recent Dutch case about the  
applicability of CC licenses held that a commercial publisher  
violated the NonCommercial license limitation when they used CC NC  
licensed images in a magazine that was then sold to the public: see  
here: http://creativecommons.org/weblog/entry/5944 (not this is not  
to suggest that this Dutch decision is binding on someone operating  
in another country).

also, the current draft of the Draft NonCommercial guidelines would  
deem this use to be commercial: http://lists.ibiblio.org/pipermail/cc- 
licenses/2006-January/003125.html (guidelines are at the end of the  
posting).  tell us if you think these guidelines accurately reflect  
your view of what NonCommercial means.

i do work for CC but CC cannot give legal advice or represent you  
(we're not a law firm)...happy to try to find you a lawyer if you  
need it...

all the best,
	

Mia Garlick
General Counsel
543 Howard St., 5th Floor
San Francisco CA 94105-3013
United States
Tel: 415-946-3073
Fax: 415-946-3001
http://creativecommons.org/

Please note: the contents of this email are not intended to be legal
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advice from a licensed attorney.


On Sep 7, 2006, at 3:54 AM, Christoph Boecken wrote:

> Hi,
>
> I provide a template design (hosted on my own domain) for the  
> blogging system WordPress, which is licensed under CC By-NC 2.5,  
> which means that it's not allowed to use the design for commercial  
> purposes. The relevant part of the license is quoted below:
>
> "[...]You may not exercise any of the rights granted to You in  
> Section 3 above in any manner that is primarily intended for or  
> directed toward commercial advantage or private monetary  
> compensation. The exchange of the Work for other copyrighted works  
> by means of digital file-sharing or otherwise shall not be  
> considered to be intended for or directed toward commercial  
> advantage or private monetary compensation, provided there is no  
> payment of any monetary compensation in connection with the  
> exchange of copyrighted works...[...] CC By-NC 2.5, Section 4, Part b.
>
> Today I found out about a hosting provider, providing bloggers a  
> platform with pre-installed WordPress for a monthly fee. They also  
> pre-install my template design on every new blog hosted there,  
> along with others.
>
> So, my question is: Is this a violation of the license? After all,  
> the provider doesn't use the theme directly to make money, it's  
> more passive through the monthly fee for hosting. I don't exactly  
> understand the relevant part of the license, so if anyone could  
> help me out, I'll really appreciate it.
>
> Thanks in advance, Christoph
> -- 
>
>
> Der GMX SmartSurfer hilft bis zu 70% Ihrer Onlinekosten zu sparen!
> Ideal für Modem und ISDN: http://www.gmx.net/de/go/smartsurfer
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