NonCommercial and recovering costs

James Grimmelmann james.grimmelmann at yale.edu
Tue Jun 22 19:55:56 EDT 2004


At 02:24 PM 6/22/2004, Sean Redmond wrote:

>Isn't the cafe or printer just performing a service that is totally 
>unrelated to the license? If it were a violation for a internet cafe to 
>charge a fee for printing, then even if you were going to print it 
>yourself at home, wouldn't it be violation for Hammermill to charge you 
>for the printer paper?

The distinction is that the copy service is the one actually producing the 
physical copy.  Even on the broadest reading of "copy," Hammermill isn't 
making copies.

I think that you're intuitively on to something: the copy shop isn't really 
any more involved with the production of the copy than Hammermill is: both 
of them are really just helping me, the reader, make a copy.  It's just an 
artifact of the copyright law we have that the copy shop does something 
directly regulated and Hammermill doesn't.  One idea might be that a good 
NonCommercial license would respect an intuition to treat the copy machine 
and the paper-making machine analagously.

>>(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 used to work at a Kinko's branch that handled most of the course packets 
>for a large University. IIRC, we didn't do a lot of checking but  the 
>policy was not to abet violations of fair use (i.e. no copying of whole 
>books) and professors had to sign off on the fact that they weren't using 
>more than was fair when they placed the order.

That's because Kinko's was successfully sued for making wholesale course 
packs.  Basic Books v. Kinko's Graphics Corporation, 758 F. Supp. 1522, 
available at 
http://fairuse.stanford.edu/primary/cases/c758FSupp1522.html.  One way of 
phrasing Evan's original question, then, might be whether people using 
NonCommercial licenses  want to see Kinko's overturned or respected with 
respect to their works.


>That would depend on the interpretation of "primary" in 4b:
>
>"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."
>
>If an internet cafe prints out a bunch of copies, they're certainly not 
>violating the spirit of the license if the give it away.

One of the tricky things here is the sordid history of copyright 
law.  "Commercial advantage" is a phrase with a special meaning in 
copyright law; it summons up a long line of cases over whether public 
performances of copyrighted works were for profit or not.  Restaurants and 
dance halls that featured live music were regularly considered to be 
copyright infringers, even if they didn't charge for the music itself and 
made their money selling drinks.  So you probably have to ask what the 
relationship between the copies and the cafe's money-making activities 
is.  If the "free" copies go mostly to customers, that's different from a 
stack of books sitting out on the street corner.

I'm not a lawyer.  I'm not your lawyer.  I'm not Creative Commons's lawyer.

James




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