Development of Creative Commons licenses

[James Grimmelmann <james AT grimmelmann.net>]

Jake McKee wrote:
> Thanks for the info, James. After reading through that info we're still
> assuming that "commercial" has been previous defined and agreed on. The
> flowchart, for instance, starts with "Is the user non-commercial".

The flowchart condenses the information available in the guidelines.
The guidelines on that question take care to sepll out what it means for
a user to be "non-commercial:"

"(1) Is the person making use of an NC-licensed work an “allowable NC
user” under the noncommercial license condition? Allowable NC users are:

(a) an Individual
(b) a Nonprofit educational institution/library,
(c) a Nonprofit organization as defined under US or equivalent law [1],
(together with (1) and (2) “allowable NC users”)
(d) A commercial copy shop, ISP, search engine, content aggregator, blog
aggregator site or similar service provider who, in the course of
providing a service at the direction of the allowable NC user, may
exercise a right licensed under the Creative Commons license. "

The flowchart packs all of that into the phrase "non-commercial user."
You should treat the flowchart just as a quick guide to see how the
guidelines break down, rather than as a substitute for them if any terms
seem unclear.

> 
> Ok, so let's take this to a very specific, single question I regularly
> have:
> 
> "Can I use NC licensed images in a powerpoint presentation for work?"
> 
> If the answer is a flat no, simply because the usage is applied in a
> commercial setting, that seems like the NC license isn't very effective.
> After all, if you're lumping "commercial presence" together with
> "commerce", then the CC NC isn't doing a very good job of "clarifying
> intent" (which is how I view CC)
> 
> I've raised this question in years past and never heard much discussion
> about it. My question is simple: Why not create two NC attributes? One
> that covers any connection with commercial activity (i.e. if the content
> even touches business/commercial activity, it's in violation) and one
> that covers resale specifically.
> 
> Personally, for example, I don't care what happens with my photography,
> so long as someone doesn't resell it. To me, having a photo used for a
> personal web site isn't any different than having it used in a
> commercial PPT presentation or internal memo.
> 
> So I'm new to this CC discussion (not CC generally, however) - is there
> a better place for me to argue my case?

No, probably not.

We've had some discussions here about the restrictiveness of the NC
licenses.  That's basically a result of the decision to have the NC use
"commercial" without defining it.  Under U.S. law, it appears that
"commercial" in the copyright context has to be understood based on some
old (pre-1976 Copyright Act) cases, and the tests in the guidelines are
a reasonable guess at the line defined by those cases.  I think it's
fair to say that almost everyone, including maybe even inside CC itself,
has been a little surprised at how restrictive the line really is.

My sense is now that this was a mistake.  Most people who care about a
non-commercial restriction don't intend to be quite that restrictive.
They don't want the work resold for profit, and may not want it used in
advertising, more likely than not don't mind reuse in a way that
generates incidental revenue (e.g. hosted someplace that also shows
ads), and probably don't care at all about internal use at companies.
Drafting language to capture that rough set of expectations might have
been a better idea.  The current line neither quite reflects licensors'
intent nor allows for an entirely reasonable scope of use.

This mistake may not, however, be worth fixing now.  What I've said
above is anecdotal.  There have been no major studies on what people
mean when they choose NC or what people assume it means when they see
NC.  Some people may want a very restrictive line.  Changing the license
now would not make those people happy.  In particular, because of the
"any future version" language in the ShareAlike licenses, it could
seriously disrupt the expectations of some users of licenses that are
both NonCommercial and ShareAlike.

I would also be very reluctant to introduce a second flavor of
NonCommercial.  License forking causes serious compatibility issues
(each different pool of ShareAlike content becomes unusable with each
other pool) and makes it harder for people to pick and understand all CC
licenses.  It was a great day when CC made Attribution the default and
at once stroke cut the number of standard licenses from 11 to 6.  If
anything, that number should be cut further, not increased.

That's where things stand today.  I personally regret how restrictive
the NC licenses are, but I'm not sure what the right response to that
problem is.

James