NonCommercial and recovering costs

James Grimmelmann james.grimmelmann at yale.edu
Tue Jun 22 15:41:55 EDT 2004


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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