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cc-licenses - Re: Use cases for NonCommercial license clause

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  • From: Mia Garlick <mia AT creativecommons.org>
  • To: Discussion on the Creative Commons license drafts <cc-licenses AT lists.ibiblio.org>
  • Subject: Re: Use cases for NonCommercial license clause
  • Date: Sun, 24 Apr 2005 15:13:47 -0700

evan, firstly, apologies for taking a while to respond to your email...i've been on the road....secondly, this is a great idea and kinda where my mind was heading as well. i agree with you that it's important to try to clarify a little more what 'noncommercial' means given CC licenses are supposed to be about clear signaling & it's difficult for licensors and licensees alike to know the scope of their rights and obligations if there is an ongoing uncertainty over the meaning of a key term.

that said, obviously, it is not possible to set out a definitive list for all time because whether something constitutes a commercial or a noncommercial use or not will always depend on the circumstances of the person making the use, the context of that use, purpose etc. so, for example, something done in an educational setting will be viewed differently to something done in a corporate setting and will depend on such things as whether money changes hands directly or indirectly etc.

one difficulty that CC has in being able to give a definitive answer on a set of specific instances is that this tends towards being legal advice, which is something that CC is not in the business of providing. in keeping with this, i can only give advice on specifics to my client - who is CC. i can explain what the clause was intended to do but not how it can be specifically applied.

however, some benchmarks of examples of uses that towards being a commercial or noncommercial use would obviously be useful for those who choose the noncommercial license option.

maybe we need to think about setting up a panel of legally trained experts who can develop something akin to "The Common Law of Creative Commons" to review and opine generally on whether they think each of these scenarios comes within the noncommercial designation or not. i am happy to work with you to set this up. let me know offlist.

Mia Garlick
General Counsel
543 Howard St., 5th Floor
San Francisco CA 94105-3013
United States
Tel: 415-946-3073
Fax: 415-946-3001
http://creativecommons.org/

Please note: the contents of this email are not intended to be legal
advice nor should they be relied upon as or represented to be legal
advice. Creative Commons cannot and does not give legal advice. You
need to assess the suitability of Creative Commons' tools for your
particular situation, which may include obtaining appropriate legal
advice from a licensed attorney.
On Apr 19, 2005, at 10:11 AM, Evan Prodromou wrote:

I think it might be useful to get some response from Mia or others at
CC about some common "commercial" uses. Here's some possible uses to
compare against the NonCommercial licenses, and consider whether they
comply or not. I've put my ideas about compliance in square brackets
afterwards.

(Assume that the parties are otherwise compliant -- say, by giving
attribution and license notification.)

* A publishing company downloads a by-nc 2.0 book from the
Internet, makes a print run of 100,000 copies, and sells it in
bookstores across the country. [no]

* An individual downloads a by-nc 2.0 book on her computer and
reads it. [yes]

* An individual downloads a by-nc 2.0 book on her computer, prints
it on her printer, and reads the printed version. [yes]

* An individual downloads a by-nc 2.0 book on her computer and
emails the file to a friend. [yes]

* ...and shares it with the world on her Web site. [yes]

* ...and shares it with the world through a P2P network. [yes]

* An individual downloads a by-nc 2.0 book on her computer, prints
it on her printer, and gives it to a friend. [yes]

* ...and lets the friend use her printer and computer to print it
himself. [?]

* ...and sells the printed copy to a friend for the cost of
materials (paper, toner, electricity, ...). [?]

* ...and sells the printed copy to a friend for the cost of
materials, plus her time in finding and printing the book. [?]

* ...and sells the printed copy to a friend for the cost of
materials, plus her time in finding and printing the book, plus
a 10% profit. [?]

* ...and trades the copy with a friend for another printed book. [?]

* ...and trades the copy with a friend for a blender. [?]

* An individual downloads a by-nc 2.0 book on her computer and prints
it on her printer. She takes it to her local photocopy shop and
makes a copy herself, which she gives to a friend. [yes]

* ...and pays the staff of the photocopy shop to make a copy for her,
which she gives to her friend. [yes]

* ...and pays the staff of the photocopy shop to make 100 copies for her,
which she gives to all her friends and family. [yes]

* A photocopy shop has a computer by the front desk. You can
browse by-nc 2.0 books you like on the computer, and then pay the
photocopy staff to make a printed copy of one or more for you. [no]

* A photocopy shop has a Web site. You can browse books you like
on the Web site, and then fill out an online form for the book
you want. The shop then FedExes you a copy. [no]

* A photocopy shop downloads a by-nc 2.0 book and makes 100
copies, which they put in a display by the front door. You can
buy a copy from them at the counter. [no]

* ...which they put in a display by the front door. You can take
as many as you want. [no?]

* ...which they put in a display by the front door. The cover
says, "Courtesy of the Fakename Copy Shop." [no?]

* ...which they put in a display by the front door. You can take
one free with any purchase of $10 or more. [no?]

* ...which they donate to a local children's literacy program. [no?]

* ...which they donate anonymously to a local children's literacy
program. [no?]

* An individual downloads a by-nc 2.0 book on her computer and
and shares it with the world on her Web site. Every download
costs $0.99. [no]

* ...and shares it with the world on her Web site. People have to pay
$5.95 a month to get a membership to the "downloads" section of
her Web site. [no]

* ...and shares it with the world on her Web site. Payments aren't
required, but she has banner ads on every page. [?]

* ...and shares it with the world on her Web site. Payments aren't
mandatory, but she has a "Support this site!" Paypal donation
link on the every page. [?]

* An elementary school teacher downloads a by-nc 2.0 play from the
Internet. Her drama class performs the play for the rest of her
school during an assembly. [yes]

* Her drama class performs the play for parents, charging $7 per
ticket. [no]

* A local theater company performs a by-nc 2.0 play, charging $35
per ticket. [no]

* A local theater company performs a by-nc 2.0 play for free to
the schoolchildren at an assembly. [no?]

* A local theater company performs a by-nc 2.0 play for free to
the schoolchildren at their theater. [no?]

* A costume company downloads and prints a number of scripts for
by-nc 2.0 plays. They rent the printed scripts to teachers. [no?]

* A costume company downloads and prints a number of scripts for
by-nc 2.0 plays. If elementary school teachers rent costumes for
the play, they get to use the scripts for free. [no?]

* A photocopy shop downloads a by-nc 2.0 image of a bee from the
Internet. They put it in advertisements in the local paper,
saying, "Bee Smart! Use Fakename Copy Shops!" [no]

* A Girl Scout troop downloads a by-nc 2.0 image of a bee from the
Internet. They put up flyers in their neighborhood: "Bee nice!
Don't litter!" [yes]

* ... "Bee nice! Buy Girl Scout Cookies!" [no]

* ..."Bee nice! Don't litter! (Brought to you by Girl Scout Troop 45,
who make those delicious cookies)" [no]

* "Bee nice! Donate money to the Girl Scouts!" [no]

* "Bee nice! Donate your time to the Girl Scouts!" [yes?]

* An individual downloads "Eastern Standard Tribe" (a by-nd-nc 2.0
book) on her computer. She pays a vanity press to make 100
bound copies, at her expense, which she then distributes
to friends and family as gifts. [yes]

* An individual downloads "Eastern Standard Tribe" (a by-nd-nc 2.0
book) on her computer. She has a personal vendetta against Cory
Doctorow dating to a cocktail party in 1997. So she
painstakingly makes 100,000 bound copies by hand, which she then
distributes freely, glutting the market. Doctorow is bankrupted.
[yes]

* An individual downloads "Eastern Standard Tribe" (a by-nd-nc 2.0
book) on her computer. She has a personal vendetta against Cory
Doctorow dating to a cocktail party in 1997. So she pays a
vanity press to make 100,000 bound copies, at her expense, which
she then distributes freely, glutting the market. Doctorow is
bankrupted. [yes]

* Fakename Publishers download "Eastern Standard Tribe" (a by-nd-nc 2.0
book), printed by their arch-rival. They make 100,000 bound copies
which they distribute freely, glutting the market. Doctorow and
his publisher are bankrupted. [no]

* A non-profit children's literacy group downloads a copy of a
by-nc 2.0 book. Staff makes 100 copies on the group's copy
machine, which they give away to local orphanages. [yes]

* ...which they sell to local orphanages for the price of
materials. [no]

* ...which they sell to local orphanages for the price of
materials and labor. [no]

* ...which they sell to local orphanages for the price of
materials and labor and a 10% profit. [no]

* ...which they give away to the public to raise awareness of
reading. [yes]

* ...which they give away to the public as a gift with every
donation of $50 or more. [no?]

* ...which they sell to the public for a profit. [no]

* ...which they give away to the public with a "suggested
donation". [no?]

* A children's literacy group downloads a copy of a by-nc 2.0 book.
A photocopy shop donates time and material to make 100 copies of
the book, which is given away to the general public to raise
awareness of reading. The back cover says, "Labor and material
donated by Fakename Copy Shop." [yes]

* A public library has computers and a printer. Printouts and
computer usage are free. An individual uses a computer and prints
out a by-sa 2.0 novel for herself. [yes]

* An Internet cafe has computers and a printer. Printouts cost 5
cents a page. An individual rents a computer and prints out a
by-sa 2.0 novel for herself, and pays for the time and print
costs. [yes]

* A public library sells copies of by-nc 2.0 books. [no]

OK, I'm exhausted from all those. Sorry for such a long list, but it's
a really complicated subject. There are probably a lot more edge cases
that need exploration.

~Evan
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