
Creative Commons licences under scrutiny: What does “noncommercial” mean? - detaro
http://arstechnica.co.uk/tech-policy/2016/09/creative-commons-licences-nocommercial/
======
belorn
Is FedEx advertising to school with an offer to distribute Great Minds works,
or are they doing a general offer of printing/delivering and it is the schools
that request that specifically Great Minds works should be copied and
distributed to them.

As normally with copyright cases, intentions are important. If FedEx is
intentionally using BY-NC-SA 4.0 work as a part of their commercial venture,
then the case should be ruled against them. If the schools are using a
commercial venture in their usage of a BY-NC-SA 4.0 work, then the commercial
venture is a third-party and the suit should not hold any water unless the
school and third-party is operating as a single entity (ie, a conspiracy,
which in this case would be rather far fetched).

~~~
phonon
It's almost certainly the latter, see the suit

[https://creativecommons.org/wp-
content/uploads/2016/08/Compl...](https://creativecommons.org/wp-
content/uploads/2016/08/Complaint.pdf)

------
ghaff
As I've written elsewhere [1], the NC variant (in particular) of CC is just a
bad idea. There have been attempts to better define NC going back at least a
decade and I don't think it can really be done. There are aspects of commerce
in just about all but the most trivial cases. Even defining in terms of "non-
profits" in US tax code doesn't really help. A lot of people intending their
work to be used non-commercially probably wouldn't be OK with the NRA using it
for the cover of their magazine.

It's also a non-free license per common definitions of the term although
that's a philosophical point rather than a practical one. But it's probably
worth observing that no significant open source software license has this sort
of restriction.

[1] [https://www.cnet.com/news/does-the-noncommercial-creative-
co...](https://www.cnet.com/news/does-the-noncommercial-creative-commons-
license-make-sense/)

~~~
chimeracoder
> Even defining in terms of "non-profits" in US tax code doesn't really help

Yup, "non-profit" does not mean that an entity is not allowed to make a
profit. All it means is that it cannot distribute that to shareholders in the
form of dividends. In other words you cannot buy stock in a nonprofit and
entitle yourself to distributions of its profits. (And while it wasn't
addressed in the article, being an arm or entity of the state works the same
way. Government agencies and nationalized corporations are just as capable of
pursuing and making a profit as for-profit corporations in the private
sector.)

"Noncommercial" is a terrible idea that gets even worse the more you look at
it. All "profit" means is that you're creating something (the output) that's
more valuable (to some other entity) than what you started with (your inputs,
which include your time/effort and the opportunity cost of whatever else you
could have done with those resources). So prohibiting profits is, literally,
prohibiting somebody from improving the licensed work in any capacity. You
might as well say, "You are free to use this work, but you cannot benefit from
it in any way".

Furthermore, as you mention, commerce is everywhere. Nearly every interaction
between two beings can be deemed related to "commerce"[0] in some capacity. If
you're trying to prevent commercial activity, why bother using a CC license in
the first place?

[0] We have half a century of consecutive SCOTUS rulings - from _Wickard v.
Filburn_ to _United States v. Lopez_ telling us exactly that.

~~~
ghaff
And probably my biggest objection is that it's such a seductive feel good
license--bathe in the glow that comes from contributing to the commons without
worrying that $EVIL_CORP might (horrors!) make money off your work--that it's
really a very natural license for people who haven't thought about the issues
to pick.

Non-derivative has problems too. I find it somewhat ironic that CC partly has
its roots in the idea of remix culture, which ND doesn't allow. OTOH, I see
reasonable arguments to be made with some types of works for preserving
whatever original artistic vision went into their creation.

~~~
JoshTriplett
> OTOH, I see reasonable arguments to be made with some types of works for
> preserving whatever original artistic vision went into their creation.

That's what requirements to clearly label modified versions as modified are
for: so that you know whether you have the original or not, and where to find
the original if you want the original.

~~~
ghaff
Oh, I'm not really prepared to make a strong defense of No Derivatives if only
because it seems counter to the remix spirit of Creative Commons.

>requirements to clearly label modified versions

Though, to be fair, CC labeling and attribution generally is a bit fraught
with practical issues. Media like photos used in presentations etc. can easily
get separated from associated metadata. To be clear, I try to be careful when
I use CC content but I'm sure that I mess up from time to time because it ends
up being a pretty manual process.

------
jessaustin
ISTM the educational materials firm have decided to change their strategy.
They have also decided to pretend that the strategy hasn't changed, that they
never intended to allow teachers to use print shops. Apparently they have a
pretty low opinion of teachers.

[EDIT:] This is certainly a threat to the CC model, so I'm glad that FedEx are
fighting it for now.

