Development of Creative Commons licenses

[Mia Garlick <mia AT creativecommons.org>]

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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