Development of Creative Commons licenses

[Andrew Rens <andrewrens AT gmail.com>]

On Apr 12, 2012 12:35 AM, "Anthony" <osm AT inbox.org> wrote:
>
> On Mon, Apr 9, 2012 at 9:46 PM, Andrew Rens <andrewrens AT gmail.com> wrote:
> > Whether we want to or not treat people differently depending on their
> > motives it is simply unworkable.
>
> Well, that is precisely what the NC licenses attempt to do:  "You may
> not exercise any of the rights granted to You in Section 3 above in
> any manner that is primarily intended for or directed toward
> commercial advantage or private monetary compensation."

To give the drafters of the NC clause their due "directed towards" is an attempt at an objective standard. I am of the view that a far more certain standard can be achieved.
> > How can a Licensor enforce a licence when
> > the question of whether the licence has been infringed or not is not subject
> > to normal methods of proof such as whether money actually changed hands but
> > instead rests on the state of mind of the defendant?
>
> Well, once an author has shown a prima facie case of copyright
> infringement, the burden of proof shifts to the "defendant" to show
> that their use falls within the terms of the license.
And the Defendant then simply alleges that his primary intent was not to make a profit. There are circumstances in which that claim could be disproven e.g.na profit and loss statement of a Defendant company, but there are far too many instances in which it is simply impossible for the Plaintiff too disprove the Defendants testimony about the state of his own mind.
>
> I certainly agree with you that it makes things very messy.
>
> But that's what the NC licenses say.  Whether or not one is in
> violation is wholly dependent on their *intent*, not whether or not
> money actually changes hands.  (Whether or not money actually changes
> hands certainly can be indicative of intent, however.)

That is why a more certain standard would be better.