[cc-licenses] Version 4:0: second draft suggested change to definition of "noncommercial"
andrewrens at gmail.com
Thu Apr 12 00:42:42 EDT 2012
On Apr 12, 2012 12:35 AM, "Anthony" <osm at inbox.org> wrote:
> On Mon, Apr 9, 2012 at 9:46 PM, Andrew Rens <andrewrens at gmail.com> wrote:
> > Whether we want to or not treat people differently depending on their
> > motives it is simply unworkable.
> Well, that is precisely what the NC licenses attempt to do: "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."
To give the drafters of the NC clause their due "directed towards" is an
attempt at an objective standard. I am of the view that a far more certain
standard can be achieved.
> > How can a Licensor enforce a licence when
> > the question of whether the licence has been infringed or not is not
> > to normal methods of proof such as whether money actually changed hands
> > instead rests on the state of mind of the defendant?
> Well, once an author has shown a prima facie case of copyright
> infringement, the burden of proof shifts to the "defendant" to show
> that their use falls within the terms of the license.
And the Defendant then simply alleges that his primary intent was not to
make a profit. There are circumstances in which that claim could be
disproven e.g.na profit and loss statement of a Defendant company, but
there are far too many instances in which it is simply impossible for the
Plaintiff too disprove the Defendants testimony about the state of his own
> I certainly agree with you that it makes things very messy.
> But that's what the NC licenses say. Whether or not one is in
> violation is wholly dependent on their *intent*, not whether or not
> money actually changes hands. (Whether or not money actually changes
> hands certainly can be indicative of intent, however.)
That is why a more certain standard would be better.
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