NonCommercial and recovering costs

Evan Prodromou evan at wikitravel.org
Tue Jun 22 17:31:17 EDT 2004


On Tue, 2004-06-22 at 15:41, James Grimmelmann wrote:

> >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."

Wow! I can't tell you how exciting it is to hear that. The vagaries of
NonCommercial are one of the most frequently asked questions on this
list.

> 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.

I kind of figured that. If I had my own printer, I could do it. If I had
my own bookbinding machine (Hmm... that'd be fun!) I could do it.

I figure I could also make books for other people and give them away,
either for myself or as a service (a la the Internet Bookmobile). (There
have been some questions about whether I could do this to promote my
business -- say, by giving away copies of a book at the store.)

I also believe that if I started a Free Media Cooperative* in my
hometown, where dues-paying members supported the coop, we could have
shared printing facilities and make copies for ourselves or others
there.

> The murkier question is whether the Internet cafe or the printers is 
> engaged in a "commercial" use.

I should have been more clear: that was my main question.

> 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.

So, I am not a lawyer, and I don't know anything worth knowing, but I
wonder if there's any way to think of my use of this printing service as
a "tool" to get the job done, in the same way as I use my own LaserJet
printer or bookbinding machine to get the job done. It's just that this
tool is made of people and runs on money. B-)

> 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?

I don't really think nc is a good idea, so I'm gonna have to slip my
head into the NonCommercial-licensors space for a second to try to
understand it.

I think one intention of NonCommercial licensors is not to allow someone
else to get filthy rich off of their work without the creator getting a
penny.

<rant>
I personally think this is kinda short-sighted and it's one of the main
reasons I wouldn't suggest nc to a creator. Having some experience with
small-scale publishing, I know that not a lot of people are getting
filthy rich off of it. Many authors of books, for example, would be
better off having someone publish and distribute their book for free,
rather than having to pay the publisher to print it!

Stories of musicians who spend tons of dollars in releasing albums is
another case. Having someone take your work and try to sell it, with no
risk or obligation on the creator's part, is a _net_gain_ for the
creator! Zero income is better than a loss.

The other logical error is not understanding that astronomical profits
usually only come from monopolies. Since the Big Evil Company that would
exploit your work wouldn't have a monopoly on the content, others could
eat their lunch by selling identical copies cheaper. This kind of
pressure would push things down close to cost; a look at
http://www.cheapbytes.com/ shows how low this can go. Most Big Evil
Companies won't even touch non-monopoly business ventures.
</rant>

Anyways, for the person who's worried about "giving away" their work and
then seeing it on the shelves at every Waldenbooks in the country, the
single printer making a single copy for me is probably not a problem.

But there's another class of people who use NC: creators who see it as a
de facto restriction on the medium of use. Printing out an entire book
on your own is time-consuming and expensive (paper, toner, whatever);
these folks figure you'll get a taste for the book in electronic form,
but after a couple of hours of eye-strain you'll get sick of that and
buy the paper volume from their publisher. So, I think, for these
people, taking out the de facto barrier would be a problem.

> (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.)

I think this is more or less the same as the above.

> (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?)

Here's where I think we cross some kind of rubicon, although I can't say
it makes any legal sense or difference. To me, there's a difference
between myself using a company as a tool to get a task done, and a
company offering a menu of services or goods. I realize that that
probably doesn't have much legal bearing, but I'd see them as different
beasts.

> 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.

Thank you a jillion for doing this; sorry I can't provide any more
feedback.

~ESP

* Yes, this would be a real cool idea.

-- 
Evan Prodromou <evan at wikitravel.org>
Wikitravel (http://wikitravel.org/)
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