NonCommercial and recovering costs

Todd A. Jacobs nospam at codegnome.org
Fri Jun 25 13:54:31 EDT 2004


On Thu, Jun 24, 2004 at 01:20:28PM -0400, Evan Prodromou wrote:

> I realize that. I'm just wondering if paying someone to do the
> reproduction or distribution would count as NonCommercial use on their
> part.

No, but it *may* constitute contributory infringement if *you* are doing
something for which you are unlicensed.

> Another, weirder example: I pay a Web presence provider for a Web
> site, onto which I've put works under a *-nc-* license. Is the
> presence provider making money off this distribution? Yes. Are they
> doing it primarily for commercial advantage? Yes.

Again, I think you're creating linkages where none exist. The web
hosting company is providing you with connectivity, bandwidth, or
whatever--in other words, a service which is not directly related to
whatever licensed works you may or may not be distributing. So, under
the DMCA's safe harbor provisions, they would have *no* liability
provided they obeyed any properly issued DMCA take-down notice. Note
that under the DMCA, this has no bearing on whether or not you are
actually infringing.

Your questions as to whether the activity itself (on the part of the
provider) is infringement is of course subject to legal interpretation,
but since the service would withstand the test of "substantial
non-infringing use," I don't think a non-DMCA case could be made.

The problem you're having is that you're turning this into a logic
exercise, and not construing this in accordance with applicable case
law. If you follow your logic to it's conclusion, there would be no end
to infringement or liabilities. The phone company could be contributing
to infringement based on your use of the phone lines, or Dell might
become a defendant because you used one of their computers to post the
material. Maybe the power company providing electricity to the host
computer is contributing to the infringement, too.

I'm not saying that our legal system couldn't become that silly, but I
don't think it has--yet.

> Are they involved in the distribution to the point where they're a
> party to the license? _That_ I don't know.

They will never be a party to the license under any of the scenarios
you've outlined. I think you're confusing issues of contributory
infringement with licensing violations.

-- 
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