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cc-licenses - Re: NonCommercial and recovering costs

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Subject: Development of Creative Commons licenses

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  • From: James Grimmelmann <james.grimmelmann AT yale.edu>
  • To: Discussion on the Creative Commons license drafts <cc-licenses AT lists.ibiblio.org>
  • Subject: Re: NonCommercial and recovering costs
  • Date: Tue, 22 Jun 2004 16:55:56 -0700

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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