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cc-licenses - Re: NonCommercial and recovering costs

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Subject: Development of Creative Commons licenses

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  • From: James Grimmelmann <james.grimmelmann AT yale.edu>
  • To: Discussion on the Creative Commons license drafts <cc-licenses AT lists.ibiblio.org>
  • Subject: Re: NonCommercial and recovering costs
  • Date: Tue, 22 Jun 2004 12:41:55 -0700

At 11:45 AM 6/22/2004, Evan Prodromou wrote:
So, I'm wondering about making print-out versions of NonCommercial works
for personal use.

For example, I'd like to print out a copy of Cory Doctorow's
_Eastern_Standard_Tribe_ to read. I don't have a printer at home, and
I'd really rather read it in a book format rather than as a bunch of
8-1/2x11 pages.

My question: is it OK for me to go to an Internet cafe and print it out
(paying a per-page fee)? Is it OK for me to take the PDF to a printer
and have them print it out, for a fee?

I'm not offering legal advice or stating official CC interpretation, but I have been working through the caselaw on the meaning of "commercial advantage."

You are pretty clearly licensed to make this sort of copying. The purpose of your use isn't to make money; there isn't a "commercial" or "monetary" gain on your part that could even plausibly be pointed to. The old pre-1976 caselaw is pretty solidly on your side.

The murkier question is whether the Internet cafe or the printers is engaged in a "commercial" use. My reading of the license and the caselaw are that this question is ambiguous. The old cases endorsed a principle whose limit was that only activities done purely out of charitable motives were exempt. On the other hand, while the nexus between the copying and their profit seems direct at first (they get paid a for the act that constitutes the copying), the evenhandedness of their actions (they'll print anything you give them, without looking at the contents) seems like a very strong counter.

Bottom line: I don't _think_ it's in violation of the license, but this isn't an open-and-shut case like it is for you the reader.



Now, for my question. Do folks on this list think it _should_ be a violation of the NonCommercial license for the Internet cafe and the printers to make these copies?

(Related question: how about large numbers of copies? For example, if a professor were to assign _EST_ to her class, and have Kinko's run off copies for all 150 students.)
(Second related question: how about editorial discretion? What if Kinko's was the one who recommended _EST_ to the professor in the first place? What if the Internet cafe recommends _EST_ to its customers and reminds them that they cant print for 3 cents a page? If it offers to sell them pre-preinted copies?)

Basically, I'm thinking about what it would take to modify the NonCommercial language to stake out a clearer position on these issues of distribution. All advice and opinions welcomed.

James





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