NonCommercial and recovering costs

James Grimmelmann james.grimmelmann at yale.edu
Tue Jun 22 20:11:23 EDT 2004


At 02:31 PM 6/22/2004, Evan Prodromou wrote:

>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.)

This case is related to the banner-ad cases, where an archive of CC content 
is supported by (or generates surplus revenue by) having advertising tied 
to it.

>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.

This is also an interesting case, since it involves charging for access to 
a pool of content, but the overall enterprise is not profit-making.  The 
language in the licenses about file-sharing (receipt of other copyrighted 
works is not considered "commercial advantage or private monetary 
compensation") strikes me as relevant.

> > 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.

Yeah, so I figured.  But I didn't want to FUD anyone by accident, so I 
wanted to be clear that this law student reads the license as licensing 
personal copies before setting off into less clear territory.


>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-)

Yeah.  Sean had a similar sense.  So have some other people I've talked to.


> > 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.

Thanks.

>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.

Hmmm.  Useful point.

>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.

In a sense, what you do when you write a license is figure out where to 
draw the lines that make legal differences.  The question is whether those 
are a good distinctions to draw, ones where everyone can look at a company 
or a service and agree on which side it falls.

This "tool" vs "menu" idea is interesting.  I'll think some more on it.


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

No, thank you.  This has been very helpful.

James




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