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A Better Definition Of “Non-Commercial”

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Reflections

Reflections

There is an ongoing discussion about the next generation of Creative Commons licenses, and the “Non-commercial” licenses may be dropped – the licenses that allow you to publish something for free distribution provided you don’t make money distributing it.

This is a bit of an odd animal. As Nina Paley has succinctly pointed out, this has no equivalent at all in the Free Software movement – whether you make money or not is irrelevant to the GNU General Public License of free software, which has been an enabler for a large group of entrepreneurs. Most of the discussion around  the distinction of “non-commercial” seems to stem from Larry Lessig’s argumentation in his book Free Culture.

At the same time, there is a considerable gray area in what is considered non-commercial, and as I have previously argued, any gray area at all – any kind of conditional safe harbor – will mean that the copyright industry will gradually turn white to black and legal to illegal through a series of precedent-setting lawsuits – simply because, first, it is their job to keep jabbing at any gray area and change the expected outcomes, and second, there is no risk whatsoever associated with filing phony lawsuits until one of them magically succeeds. A recent TorrentFreak column suggests the same thing as I have argued – that stealing, or attempting to steal, from the public domain (in which case it really is stealing) should be criminal, and that the normal copyright monopoly penalties should also be applied to anybody falsely asserting such a monopoly.

I make two observations here. The first is that our efforts in the Pirate Party has long been articulated as pushing the copyright monopoly out of honest people’s bedrooms, back into the negotiation rooms of the publishing houses, where it should only concern their lawyers. At the same time, this has been mixed up and blended with the Lessig argumentation of “non-commercial” activitiy, and considered to be the same thing.

But it isn’t the same thing. Not by a long shot. The first distinction above is a who, the second distinction is a what. A distinction based on who needs to abide by the copyright monopoly rules can be black and white, leaving out any gray area for jabbing at, whereas a distinction based on the type of activity will invariably slide towards black and illegal across the entire spectrum as the lawsuits start coming.

The second observation is that the non-commercial license, which may not be exactly parallel in thinking to the Free Software concept, still has significant support and enables publications for free distribution – publications that otherwise wouldn’t be published and freely distributable without a profit motive. Speaking pragmatically, I argue and sense that the public opinion, when it comes to the copyright monopoly, is still very rooted in the idea of “right to make money”, and that the step of aligning free culture with free software – while logical – is just too soon without the support of public opinion.

The consistently brilliant Crosbie Fitch has long pointed out this inconsistency, and has argued for a different definition of “non-commercial”, one that I believe solves all of these problems. By defining “commercial use” as “use by a legal entity that is neither a natural person nor a non-profit organization”, you define the term in a clear black and white in a heartbeat, and make it only apply to large corporations. True, you would let people sell small-scale print runs out of their trunk if they could, but that’s not anywhere near the large-scale ripoffs we wanted to prevent when we talked about pushing the copyright monopoly back to the lawyer rooms in large, marble-floored publishing houses. You’d let people share and distribute freely as long as they didn’t do it in the capacity of being employed by a limited-liability corporation or a government – which was exactly what we were after, and this short phrase captures, defines, and divides commercial and noncommercial beautifully. I argue that it is the best definition I’ve seen so far.

True, you would put governmental agencies in the “commercial” arena by this definition. But don’t we want to incentivize them to switch to truly unburdened culture, knowledge, and tools? Their budgets is one of their best incentives to make that happen, so I argue that defining governments and governmental agencies as “commercial” is a desired effect of the definition rather than an undesired side effect.

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About The Author: Rick Falkvinge

Rick is the founder of the first Pirate Party and is a political evangelist, traveling around Europe and the world to talk and write about ideas of a sensible information policy. He has a tech entrepreneur background and loves whisky.

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42

  1. 1

    The Share-Alike license already accomplishes exactly what people want from their “non-commercial” licenses, without needing to redefine anything. “Non-commercial” sounds nicer than “share-alike” to most people, so once again it boils down to a branding problem.

    • 1.1
      William Lee

      Personally I find the distinction between SA and NC to be fairly significant.

      Not too long ago I started a project releasing products under the CC-BY-SA-NC license. I quickly came to realize that the SA was way more restrictive than I wanted to be, so altered my license to CC-BY-NC. I don’t believe people who alter/improve upon my products should be required to use the same licensing if they share the result, as long as my contribution gets credited properly. I do however object to anyone selling what I make, or using it as part of a for-profit venture.

      If they want a commercial license, I’m willing to talk – and I think that’s one thing alot of people forget when discussing the CC license. It does not preclude the possibility of commercial licensing by the original creator.

      I would agree however that applying *both* SA and NC is a bit redundant, so perhaps the licensing option that combines the two needs to be dropped to eliminate any confusion.

      • 1.1.1
        Ivan

        Your argument about contacting you to get a separate license works nicely in your example, however the real world usage is wildly different. It’s not rare that there are hundreds of authors of a single piece of content (e.g. Wikipedia articles), so contacting all of them for a change of license is so impractical that it borders with impossible (as an example, remember what Wikimedia has done to relicense the contents of its projects from GFDL to dual-license with CC). As a final point, it’s safe to assume that you’re releasing your work under a CC license (with the exception of -ND) in order for it to be reused, remixed and modified, so you should expect the real-world scenario, not the self-centered one.

  2. 2
    Troed

    I agree fully with the current vague definition being problematic. However, the proposed change would mean that all practicing public speakers today would not be able to use large parts of the currently CC-licensed material for their presentations (I myself use pictures found on Flickr extensively). While that could be seen as positive (having to source a license instead) it would also mean that the amateur photographers would get less exposure since many would likely start using professionally licensed content instead.

    There is more than a fine line between my employer using a photo in a global advertising campaign and me doing a presentation at a conference – currently solved with vague “common sense”.

    (I have asked a few people whose content I’ve used and credited for their opinion before, and so far no one’s argued that they see presentation backdrop usage being commercial. I do appreciate that some might, though)

    • 2.1
      Søren

      If you get paid to speak, and you use CC-BY-NC material, you are violating the license.

      “You may not [use the work] in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation.”
      http://creativecommons.org/licenses/by-nc/2.5/legalcode

      If you ask the creator, and they say it’s OK, you are of course free to use the work, but you are no longer using it under the CC-BY-NC license, but under an ad-hoc license granted specifically to you.

      Assuming your business is a separate legal entity from you, the change Falkvinge suggests would not alter your situation at all – it would be a license violation in either case.

  3. 3
    k-h

    How about a license that says something along the lines of: If this is used in a body of work the whole work becomes subject to this CC license and must be available to copy freely.

    • 3.1
      David

      If I’m not mistaken that’s not too different from the way GPL works. I can’t find anything inherently wrong with the philosophy, but my gut says that it’s a bad idea. It just gives my a funny feeling. Pardon me for a moment while I spout half-baked thoughts.

      My first question is should something small like a photograph be a limiting factor on something large like an Operating System? Should Microsoft have to conduct emails and licensing over a photo that is going to be used in some discreet and out of the way position? Not that I like Microsoft, but that’s an awfully small point to argue concerning the size of something like Windows. Furthermore, Microsoft may want 100s or 1000s of these images. It would be lots of trouble to get all of the licensing and permissions for all of them. And what if some of the images were licensed but with minimal effort by someone who never actually expected to see something happen with the image? How big would the lawsuit be?

      And would you deteriorate into fights? Would there be deception involved and copyright trolls that try to abuse something like this? (I guess copyright trolls will appear anyway).

      I guess my real contention with this type of license is that it makes things more complicated than they need to be. The best is the license that puts your work directly in the public domain. Next best is the license that excludes corporations from abusing your work, but I still prefer the simpler approach. Adding the gpl style requirement is just another layer to the cake, making it more confusing when it comes to interpreting the law.

      And lawyers are good at abusing confusing parts of the law.

  4. 4

    There is a need to separate control issues vs money issues with copyright. Copyright is schizoid and can’t make up its mind whether it is about control or economic incentives. These are often in conflict with each other.

    Copyright appeals to believers because of the element of control (who doesn’t want more control? This is why the propaganda is powerful in the first place – it appeals to the desire to control outcomes).

    However, this control bizarrely often leads to situations that conflict with sensible economic outcomes. Take napster, when they offered pretty much a blank cheque, giving the music industry the chance to be what apple became with itunes, they turned it down, even though they would have been much richer if they had said yes and took a cut. Instead they chose to shut them down. Apple then stood in and used its huge muscle to fight and create itunes etc.

    The more copyright history I looked at the more this seems to happen frequently. People fighting against the thing that later makes them money. Copyright law, if it was about economic incentive and fair profit, should force people to say “You need to just shut up be reasonable and take a sensible cut” if it is about the money. That way it wouldn’t prevent change at least. Unfortunately, it allows people to work against their own interests, the option for control blinds them.

    Imagine if the control aspect was dropped but you could demand a cut from profit based on the reality of the situation (it might be realistic and not demand cuts that are not viable and would put out of business). Would this mean anyone could innovate without fear and also creators could seek reward?

    I really think these aspects of copyright cannot be combined.

    • 4.1

      Stay tuned; some US Pirates are working on a proposal that I think achieves exactly what you’re looking for. Should be published sometime in October.

      • 4.1.1

        Can we have a skype chat about that? I am UK based but currently making a documentary that includes parts on copyright and other IP and it may be relevant to those. I am looking for all reasonable suggestions on fixing copyright to add to it. I have never found any yet that deal with these incompatible goals. I think I just followed you on twitter. I am @OrwellUpgraded.

  5. 5
    BN

    I don’t quite follow why can’t we just define the gray area better.
    When I publish something under creative commons non-commercial, all I want is the content to be freely shared without having some scumbag selling it, making money without doing any work, and scamming people out of a free product (which happens more often than you’d think).
    The entity performing this act is irrelevant.

    • 5.1
      Lars

      Wouldn’t the scamming part always be illegal under any CC licence, with or without the non-commercial clause? When you distribute a work under that licence you also have to provide a copy of the licence itself.

      • 5.1.1
        BN

        Not really to my understanding. You can basically take any CC thing that isn’t non-commercial and sell it with no issues. If the buyer didn’t know the product was available for free it’s their problem. This also happens with other licenses at times, when some guy will take some FreeBSD software and sell it with no modifications. It’s completely legal but basically a scam in this day and age.

    • 5.2
      John

      It is not as simple as that. With my stuff I would welcome some commercial uses but dislike others. There is no way to do that with creative commons as yet. For instance I wouldn’t like my stuff used in something that portrays me as endorsing a product I don’t i.e. an advert but other arty commercial uses would not bother me.

      This whole area of commercial vs non commercial is really hard to define without gray areas.

      • 5.2.1
        BN

        That’s why I say we should just define the gray area better with all possibilities.
        Although the license may get a bit longer and harder to understand.
        It could be just like a checklist of permitted uses and have the non listed ones be non permitted.
        Etc.

      • 5.2.2
        Søren

        No.

        Creative Commons Attribution 2.5 Generic (CC BY 2.5):
        “Attribution — You must attribute the work in the manner specified by the author or licensor (but not in any way that suggests that they endorse you or your use of the work).”

        http://creativecommons.org/licenses/by/2.5/

  6. 6

    Might be more clear than the present “in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation” but I can see it not matching existing “NC” licensor expectations — unincorporated individuals can engage in profit seeking activity on a much larger scale than selling copies from the back of a truck — this is the Internet — and non-profit organizations (another definitional problem worldwide) can engage in very commercial seeming activity, including owning and running businesses (sometimes “unrelated business income/activity” in US lingo). That said, ruling out any use by for-profit and/or non-natural person entities could be a way of further clarifying the present definition. Or, the term could be renamed something other than “NC” that would reflect the rule proposed.

    Speaking pragmatically, I argue and sense that the public opinion, when it comes to the copyright monopoly, is still very rooted in the idea of “right to make money”, and that the step of aligning free culture with free software – while logical – is just too soon without the support of public opinion.

    I hope you expand on this argument. For example, too soon, given what objective? In past posts I dimly recall you consider battling the idea of “right to make money” necessary … perhaps I misremember; http://falkvinge.net/2012/08/27/saving-jobs-in-copyright-industry-is-counterproductive-regressive-policy/ is along those lines, but by implication.

    • 6.1

      For those who want to make a commercially oriented distinction between “exploitation of my work that is ok”, and that which is “not ok”, the corporation vs individual discriminant has the benefit of being far easier to define than ‘receiving financial benefit’.

      Once you’ve established this primary discriminant, whether a copyright protected work has been copied/communicated by an individual or a corporation (or authorised thereof), then you can move on to deciding whether a certain class of corporation should be exempt, e.g. registered charities.

      Many people assumed (and some still do) that copyright was a means by which individuals could protect themselves against exploitation by powerful publishing corporations. Corporations using copyright to send granny to prison for singing in a supermarket or collecting Karaoke CDs is not what most people had in mind…

  7. 7
    cen

    I agree with Mike here. Private entities – people – selling stuff from the trunk of their car sounds surprinsingly old economy to me. In fact, a private person can just as well use the magic of the internet in order to publish large scale, world wide, in a way, even big companies could not pull off back in the old days. Therefore, I don’t see how a work would be protected from being exploited big time this way. Money goes to people instead of legal entities, ok, but that’s not at all what open licensing is meant for.

    • 7.1
      next_ghost

      Czech law has a thing called “unauthorized enterpreneurship” which basically means that someone does business on their own without filing the proper self-employment paperwork and paying business taxes. The boundary between miscellaneous income and unauthorized enterpreneurship is in how long you do the thing and how much you make from it every year. So the problem you point out can be fixed by simply saying that if what you do with copyrighted works constitutes unauthorized enterpreneurship, you’re violating the non-commercial clause as well.

  8. 8
    Patrik

    Mike & cen: +1

    It’s actually even worse. Rick seems to have completely forgotten that individuals can act as proxies for corporations. Want to use something in a commercial without paying? Well, it just so happens that one of the corporation’s employees buy the advertising space with his private money instead. This will of course result in him getting a huge bonus that – fortunately – is at least as large as the cost of the commercial.

    Rick’s definition may cut down on some abuse, but people are pretty resourceful when it comes to finding ways to work around any rules if there’s profit in it.

    • 8.1

      Patrik, I wouldn’t think so much in terms of corporations having extra wriggle room (CC-NC already permits proxies), but in terms of it being far clearer to individuals that they cannot be prosecuted (let alone bankrupted or imprisoned) – no matter how cunning the copyright holder’s lawyer is.

      One can finesse any covered use as commercial (even if indirectly), whereas one cannot finesse an individual into a corporation.

  9. 9
    griffin

    I think there is something wrong with this position, if we can’t make non-commercial copyright license, then how we can ask for legalization of non-commercial use of copyrighted material? it must be possible to implement such license, provided good will.

  10. 10
    printersMate

    The use of non-commercial is problematic in defining what is meant by commercial.
    The Share alike terms should be explicit as to when they become applicable. A requirement that the relevant part of a combined work is made available to the public under the same license and for free would have much the same effect as non commercial. This requirement should explicitly include scenes in films and TV programs.
    The license should explicitly state that failure to comply with the share alike and attribution and disclaimer requirements remove all permissions to distribute or perform works containing the licensed materials until explicitly granted by the licensor.
    These requirement can be removed if a separate license is obtained from the copyright holder. This should also apply to use of images etc. on a web site, in that they should be removed on complaint of non compliance with the license terms, and only used after this if permission is explicitly granted.
    This would probably achieve the same objective as non commercial terms, as most commercial entities would rather not make parts of their works available under share alike terms. The copyright holder is not required to grant a commercial license, and can require that derivatives are released under a share alike license.
    It would be worth considering adding that any take down against distribution of derivatives released under a share alike license by or on behalf of the individual or company making use of the original work is a license violation, removing permission to distribute the containing work containing the derivative work. This would help to avoid large corporations gaming the system by releasing under share alike, and then accidentally including the segment in an automatic take-down system.
    As ever the problem in practice with any license is enforcement, as most individuals cannot afford the legal costs to do so. Share like is probably easier to use in a legal battle, as it terms are not as open to interpretation.
    The use of non-commercial is problematic in defining what is meant by commercial.
    The Share alike terms should be explicit as to when they become applicable. A requirement that the relevant part of a combined work is made available to the public under the same license and for free would have much the same effect as non commercial. This requirement should explicitly include scenes in films and TV programs.
    The license should explicitly state that failure to comply with the share alike and attribution and disclaimer requirements remove all permissions to distribute or perform works containing the licensed materials until explicitly granted by the licensor.
    These requirement can be removed if a separate license is obtained from the copyright holder. This should also apply to use of images etc. on a web site, in that they should be removed on complaint of non compliance with the license terms, and only used after this if permission is explicitly granted.
    This would probably achieve the same objective as non commercial terms, as most commercial entities would rather not make parts of their works available under share alike terms. The copyright holder is not required to grant a commercial license, and can require that derivatives are released under a share alike license.
    It would be worth considering adding that any take down against distribution of derivatives released under a share alike license by or on behalf of the individual or company making use of the original work is a license violation, removing permission to distribute the containing work containing the derivative work. Any sub licensees of the work are considered as acting on behalf of the licensing company. This would help to avoid anybody gaming the system by releasing under share alike, and then accidentally including the segment in an automatic take-down system.
    Printed material is a slightly different problem, but share alike could require that the included or derivative work parts are explicitly marked front and back, with proper attribution and a copy of the license. It could also be required an electronic copy of original or derivative share alike works are made available for free by the publisher under a share alike license.
    License terms should be explicit that breach of the terms results in removal of the right to distribute, perform, broadcast the work with infringing material included until explicitly granted permission by the copyright holder of the infringed work. The copyright holder can require any reasonable conditions before granting such permission, including checking and dealing with any other infringement, making all parts of the work covered by CC licenses available under the same licenses, and donations to chosen CC related projects or organizations. Appointment of a person by the infringing organization with responsibility to ensure that licenses are complied with (or rights obtained), is another possible requirement before restoring license permissions.
    The only option that does not require agreement is removal of the infringing material.
    As ever the problem in practice with any license is enforcement, as most individuals cannot afford the legal costs to do so. Also share alike is probably easier to use in a legal battle, as it can be written in terms that are less open to interpretation against the licensor’s wishes.
    There is a problem in trying to restrict particular uses of a work, as this can veer into various forms of discrimination. Also how are derivatives of derivatives treated. Attribution and disclaimer are reasonable, with the use of twitter etc. to complain about misrepresentation. Richard Stallman specifically avoided any option to place restrictions of use on free software because of problems of discrimination.

  11. 11
    Enoch Root

    I disagree with the solution to use the figure of corporation as opposed to that of a person or non-profit entity. The thing is this: corporations do not use software, or read books, people do. These people happen sometimes to work for corporations, and use devices provided by these corporations to read an access material, either for personal use or for work use in an increasingly hard-to-define way.

    For example, I have a corporate laptop which I use for both personal and work activities, and sometimes it’s really hard to tell. I do all sorts of systems engineering and coding for the company I work for. If I were to read a programming book for a language that isn’t currently being used by my company, during my free time, at home, with the corporate laptop, does that constitute corporate or personal use? What if I implemented a software solution using that language in the future? Would my reading the book constitute corporate use then?

    What defines corporate use? is it the device I’m using to access the contents? is it the premises in which I access such content? is it the type of content itself?

    Then other questions arise on commercial vs personal use. What if I happen to be a contractor for a corporation? does anything I access that is work-related have to be treated as commercial? books on programming languages as well?

    Too much gray, dump the stupid commercial exception.

  12. 12

    There’s actually a very big problem with this new definition: it doesn’t work in all legal jurisdictions. The Dutch legal system, for example, has two legally defined forms of companies that are in themselves *not* legal entities: eenmanszaak (literally, one man show) and VOF (‘vennootschap onder firma’). These companies can operate as any limited liability company could for the most part, but there *is* no limited liability, and in itself, it’s not a legal entity, just a registration. I suspect this is the case in more countries.

    The alternative definition you propose would allow a registered company without limited liability, to commercially reproduce and redistribute content, even on a large scale.

  13. […] is primarily an economic construction, there is a chasm in public support between its abolition for noncommercial activity, and its abolition […]

  14. […] is primarily an economic construction, there is a chasm in public support between its abolition for noncommercial activity, and its abolition […]

  15. […] is primarily an economic construction, there is a chasm in public support between its abolition for noncommercial activity, and its abolition […]

  16. […] primarily an economic construction, there is a chasm in public support between its abolition for noncommercial activity, and its abolition […]

  17. […] is primarily an economic construction, there is a chasm in public support between its abolition for noncommercial activity, and its abolition […]

  18. […] is primarily an economic construction, there is a chasm in public support between its abolition for noncommercial activity, and its abolition […]

  19. […] primarily an economic construction, there is a chasm in public support between its abolition for noncommercial activity, and its abolition […]

  20. […] is primarily an economic construction, there is a chasm in public support between its abolition for noncommercial activity, and its abolition […]

  21. […] is primarily an economic construction, there is a chasm in public support between its abolition for noncommercial activity, and its abolition […]

  22. […] There is an ongoing discussion about the next generation of Creative Commons licenses, and the “Non-commercial” licenses may be dropped – the licenses that allow you to publish something for free distribution provided you don’t make money distributing it.  […]

  23. […] un gouffre parmi le public, entre ceux qui soutiennent son abolition uniquement dans un cadre non commercial, et ceux qui soutiennent son abolition […]

  24. 13
    frank87

    I think the idea of splitting up comercial and non-comercial is unneeded. Copyright could be replaced by more relaxed anti-thrust-laws. At this moment thrusts are battled by replacing them with monopolies: I would like things the other way around.

    Big compagnies can sort out copyright by them selves. It’s in their own interest not to misuse each others material (they need to live and let live).
    There is absolutely no comercial need for Warner Bross to produce Mickey Mouse material.

  25. […] un gouffre parmi le public, entre ceux qui soutiennent son abolition uniquement dans un cadre non commercial, et ceux qui soutiennent son abolition […]

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Rick is the founder of the first Pirate Party and is a political evangelist, traveling around Europe and the world to talk and write about ideas of a sensible information policy. He has a tech entrepreneur background and loves whisky.

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Swarm Economy

Swarm Economy

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