Development of Creative Commons licenses

[James Grimmelmann <james.grimmelmann AT yale.edu>]

At 04:21 PM 8/9/2004, Haig Shahinian wrote:
> Regarding creative commons licensed work using the non-commercial clause:

I speak neither as a lawyer nor on behalf of CC.  I speak only as me, an 
under-educated law student who is often wrong.

> Suppose I were to offer said cc-licensed works on a website which
> contained advertisement and the corporate entity that legally owns the
> site generates revenue from these ads.  The cc-licensed material would
> be free and open to anyone visitng the site, maybe free reg. requirements.
>
> Would this be considered infringement?

It might.  One major issue is what the ads are for.  If they're something 
like Google ads that are for unrelated outside services, that seems more 
commercial than ads for other content on the site.  It sounds as though the 
ads are external, since they're generating revenue.

The relevant language in the license refers to whether the use is 
"primarily intended for or directed toward commercial advantage or personal 
monetary compensation."  There has been very little judicial interpretation 
of such language, so it's very hard to say whether a site with ads would 
trigger it or not.  A great deal might depend on the specific facts of the 
case, and also perhaps the judge's mood.

> Does it make a difference whether the corporate entity owning the site
> is structured as non-profit or for-profit?

This may not be particularly important.  If it were for-profit, the 
relevant facts would be whether the non-commercial content was generating 
ad revenue that could be directed elsewhere (very very bad) or whether it 
was generating goodwill for the company (also fairly bad).  A purely 
philanthropic use ("presented by foo.com as a public service") might be 
less objectionable.

Non-profits could still raise these concerns, though, which is why I'm not 
sure the corporate structure is the key issue.  A cancer-research 
non-profit making money by selling ads on someone else's CC-NC music, for 
example, doesn't look too much better than a for-profit doing the same.  It 
would probably be less worrisome if a non-profit was getting goodwill out 
of "giving" away CC-NC content, but that's just my speculation.

> Most, if not all, the revenue goes towards hosting and operating costs.

The difference between "most" and "all" could be significant.  In my mental 
reconstruction of a hypothetical judge hearing such a case, the difference 
feels like it makes a difference.

My recommendations if you want your use of CC-NC content to pass muster -- 
and you so totally should not treat this as legal advice -- are the following:

You could make some money from ads, provided that it plowed all the money 
back into the hosting and operating costs OF HOSTING THE CC-NC CONTENT 
ITSELF.  This should not be a case where having the content up helps you 
defray other costs you'd pay anyway.  It really should be something where 
you can point to the books and say "we run a net loss on providing this 
content."  If it's a for-profit behind the content -- or a non-profit that 
does something unrelated to the content -- the site had better not smell 
like a promotion for your other work.  Any "presented by" link should be 
modest and seem like an "about this site" page, rather than a prominent 
ad.  And in any event, the ads ought to be modest and not distracting from 
the other content: the page really and genuinely MUST seem like it's 
content with a couple of ads, not like some ploy designed to increase ad 
traffic.

Doing the above is no guarantee that you're okay, but personally, I think 
these precautions, taken in combination, indicate that the "primary intent" 
of the use of the content is NOT the advertising.

Enough disclaimers for you?  Do others on the list have other takes on the 
language?

James