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cc-licenses - Share-revenues as an alternative to Non-commercial

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Subject: Development of Creative Commons licenses

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  • From: "David Christie" <dc AT samizdat.org>
  • To: "CC Licenses List" <cc-licenses AT lists.ibiblio.org>
  • Subject: Share-revenues as an alternative to Non-commercial
  • Date: Tue, 3 May 2005 14:13:53 -0700

I've been lurking on this list for a while and reading the archives. This is my first post. I'm primarily interested in innovative open-source software licenses.

Has anyone here been involved in discussions of an alternative to the CC Non-commercial license, analogous to the way Share-alike is an alternative to No-derivatives?

I'm thinking of something like "Share-revenues", designed to (a) grant commercial rights, but (b) oblige commercial users to share part of their revenue with the copyright holder.

Please point me at any discussions or innovative licenses that may relate to this.

The devil is always in the details, so I will explain how I think such a license could work, for anyone interested. IANAL. I write "west coast code" not "east coast code".

The basic principle is that the copyright holder grants the right to commercial use, but is entitled to a per centage of the revenues thereof. In the absence of an additional contract between copyright holder and licensee, this right is for some fixed per centage of licensee's gross revenues -- say, 10% of everything earned using the copyrighted material. (The 10% is fairly arbitrary as you will see, and open to debate; perhaps even the use of a specific per centage is not the best approach; IANAL.)

This will be controversial, but I suggest a license that claims a per centage not merely of direct revenues from the copyrighted work, advertising that it hosts, etc., but of all the licensee's gross earnings facilitated in any way by use of the copyrighted material. This is nearly punitive, and deliberately so. (If you run my software to power your corporate web site, am I entitled to 10% of your entire corporate revenue?) But in practice it means we can ignore the details of how such revenue would be measured and reported, especially the difficulty of determining what per centage of the customer's revenue is "facilitated" by using the software (or other work), because in practice, 10% of gross revenues is unacceptable. It is much more than most customers can afford, and far too much to make using the work competitive (e.g. compared to proprietary products).

Therefore, in most cases commercial users and copyright holders will negotiate a separate commercial contract specific to the customer's use and their respective business models, which defines specifically (and bounds, i.e. reduces) the customer's obligations under the revenue requirement of the license. Such contracts may be crafted specifically for each relationship, and their terms may vary. They are not software licenses per se but contracts bearing on the agreed interpretation of the "Share-revenues" provision of the license. They are not an alternative license (this is not a dual-licensing scheme).

Absent such a contract, the license is written to give the copyright holder as much leverage in court as possible to garnish up to 10% the licensee's gross revenues (or at least that fraction of it facilitated in any way by the use of the copyrighted work). The contract specifically gives up these punitive rights, replacing them with something more acceptable. Thus "Share-revenues" defaults to something much like "Non-commercial", in practice, in the absence of a separate commercial contract between vendor and customer. [Honestly, I've no idea if such a license provision could be enforced without at least a click-thru license, and we don't want those; that's one of many issues for a lawyer to work on.]

The point is to have the "Share-revenues" license punt on specifying an actual commercial contract that stipulates exactly how revenues are to be shared. A commons license cannot specify such arrangements and still be one-size-fits-all. The freedom to engage in an endless variety of commercial relationships is what free markets (supposedly) guarantee; the license should not constrain that. Also the commons license should not require user acceptance (by click-thru or other means), while the revenue-sharing contract would no doubt require both parties to sign it.

I would also like to see "Share-revenues" mean "from any compensation", rather than exempting non-profit organizations/uses entirely as CC Non-commercial (apparently) does. This is another reason why I suggest basing it on gross revenues. The rationale is that the ability to contract the revenue sharing model should be preserved in all relationships, including those between the copyright holder and non-profits that earn revenue from the use of the work, tax-supported organizations such as governments, etc. The copyright holder is free to grant special contracts to such customers, even at 0% revenue recovery if he likes.

One final point: unlike dual-license schemes which make the work available to paying customers on one set of terms, and to non-commercial users on another, "Share-revenues" is egalitarian: it would be a provision of a single commons license available to everyone. Only the separate revenue sharing contracts would vary. Thus, commercial and non-commercial users would have the same rights and responsibilities. For example, commercial users as well as non-commercial would be bound by "Share-alike", if it was part of the license. [Nothing here prevents the copyright holder from also using dual-licensing, for example to exempt some commercial users from Share-alike, but it is not required.]

I'm sure this idea could be improved, but you see where I'm going with it no doubt.

I'm also interested in other ideas in this vein.





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