Re: <nettime> What's the meaning of "non-commercial"?

[Florian Cramer <cantsin@zedat.fu-berlin.de>]

Am Dienstag, 04. Januar 2005 um 22:43:41 Uhr (+0100) schrieb rasmus
fleischer:

> Personally, I'm astonished that so many people (including a large part
> of the net's "copyfighters", and many nettimers too) by default put
> NonCommercial-licenses on every line of text they produce -- seemingly
> without a thought on what consequenses such that license may bring.

Yes, few people are aware that imposing the "non-commercial" restriction
on a licensed work makes it non-free in terms of the Free Software and
Open Source movements. The Free Software definition of the FSF/GNU
<http://www.gnu.org/philosophy/free-sw.html> defines as the second of
its software freedoms 0-3 "The freedom to redistribute copies so you can
help your neighbor". This includes the freedom of commercial
redistribution. Later on the same page, the text states that "'Free
software' does not mean 'non-commercial'. A free program must be
available for commercial use, commercial development, and commercial
distribution. Commercial development of free software is no longer
unusual; such free commercial software is very important."

The "Open Source Definition"
<http://www.opensource.org/docs/definition.php> and the "Debian Free
Software Guidelines" <http://www.debian.org/social_contract> define
similar permission under their point one, "Free Redistribution".  The
Debian project explains why Free Software permits commercial
redistribution on <http://www.debian.org/intro/free>:

   "This last point, which allows the software to be sold for money
   seems to go against the whole idea of free software. It is actually
   one of its strengths. Since the license allows free redistribution,
   once one person gets a copy they can distribute it themselves. They
   can even try to sell it.  In practice, it costs essentially no money
   to make electronic copies of software. Supply and demand will keep
   the cost down. If it is convenient for a large piece of software or
   an aggregate of software to be distributed by some media, such as CD,
   the vendor is free to charge what they like.  If the profit margin is
   too high, however, new vendors will enter the market and competition
   will drive the price down. As a result, you can buy a Debian release
   on several CDs for just a few USD."


Wikipedia defines as commerce "the exchange of something of value
between two entities. That 'something' may be goods, services,
information, money, or anything else the two entities consider to have
value." In negative terms, any distribution that is not a gift is
commercial. That even includes copying a Linux CD for someone else for
50 cent in order to cover the cost of the CD-R. It also includes, for
example, the inclusion of an essay published in the Internet into a
print book or magazine (like the Nettime reader) that is being sold for
a price, even if it's an underground publication that makes no profit or
the sales of which don't cover production costs. Even for such a
non-profit publication, a work licensed under "non-commercial" terms
couldn't be freely used, but would require an additional permit by the
author/creator. If the work is a collective creation, for example from a
Wiki, the authors of which can't be traced, then it would be impossible
to legally reprint the text in such a publication.

 
> Mikael Pawlo: WHAT IS THE MEANING OF NON-COMMERCIAL?

[...]

> Commercial television is also available. Commercial television may not use 
> content that is licensed under the Attribution-NonCommercial-ShareAlike 
> 2.0 license, that is rather evident. 

It may use it, but just as with standard copyright, only through
obtaining permission from the author (which, as explained above, can be
sometimes difficult or impossible). 

> But may Swedish public service 
> television do it? The commercial channels to compete with public service 
> television over the public's attention. Further, commercial messages are 
> broadcasted even in public service, although not by using commercials, but 
> by using "sponsored by"--billboards and product placement. Is this the 
> kind of use that Creative Commons would like to endorse with its drafting? 

The problem might be even worse. I read that Swedish public television is
financed, like the BBC in England, through a television license fee (and
not by fundraising like for example public broadcasting in the USA).
That makes it a commercial service that can be received only via
payment. 

> Probably, but I can not be certain, one is looking for a less commercial 
> environment. Perhaps a school or a strict hobby, in the basement, 
> not-for-profit environment. 

That seems to be the main flaw in the "non-commercial" wording, a
confusion of "non-commercial" and "non-profit". Most non-profit projects
are commercial in the sense that they charge money. That would even
apply to say, a teenage garage band that would play cover versions of
songs released under Creative Commons Licenses, but charge $2 entrance
fee to reimburse its transportation and rental expenses. 

But even a "non-profit" restriction would be flawed eventually because
the non-profit nature of a project/venture is hard if not impossible to
prove. The music industry, for example, could likely claim rights for
"non-profit" use of material these days.


The fact that so many artists and net activists use the "non-commercial"
restriction for their work comes, in my belief, from an anxiety and 
ill-informedness about getting potentially exploited by media
corporations: That, for example, a sound sample or piece of artwork
released under a free license would end up in the next Madonna song and
video without the creator being able to prevent it or getting a share of
the profit. However, the appropriate countermeasure for such
exploitation is GPL-style copyleft, available in the Creative Commons
toolkit as the "ShareAlike" option. If Madonna would release a video
using "ShareAlike"-licensed work, she would be forced to do one of the
two following things:

(a) Put her work (i.e. the video) under the same ShareAlike license.
Then it could be legally shared in the Internet, and the video, images
and sound could be reused in new independent works under the same
license.

(b) Pay off the creator of the artwork to grant her a license without
following the ShareAlike terms, because not following those terms
is a copyright violation. Copyright owners of a work always has the
right to relicense their work under different terms (which does, however
not invalidate the fact that the work remains available under ShareAlike
terms).



> There are public schools in Sweden in all 
> municipalities. But what about the growing sector of private schools? 
> Should the private schools, since they are mostly founded for commercial 
> reasons, be banned from using Attribution-NonCommercial-ShareAlike 
> 2.0-license content, while public schools may use the works freely? 

Or what happens when public schools, like in Germany, charge parents
a fee for schoolbooks and other educational media? In that case, we have
a "commercial" scheme again.

 
> When conducting adaptation and translation of the Creative Commons 
> licenses cultural and language differences will appear. This may create 
> severe discrepancies when it comes to the interpretation of the licenses. 
> If Creative Commons is considered an international project, instead of 
> several national projects co-ordinated under the same brand name, where 
> content should be licensed under the same terms, even by using machines 
> for licensing and XML-tagging instead of legal interpretation, then the 
> Creative Commons organisation needs to find common definition of central 
> terms in the license. 

I must say I am fed up with CC in several respects. None of their
licenses currently is free according to the three Free Software/Open
Source definitions cited above (i.e. by the FSF, the Open Source
Initiative and the Debian project), mainly due to well-meaning, but
ill-phrased anti-DRM clauses that prohibit distribution of CC-licensed
work over encrypted channels, thus including also SSL- and ssh
server connections. Maybe this issue can be fixed in a version 3.0 of
the CC license pack. Even then, only those licenses without
"non-commercial" restriction would be free. But the worst things is
the explosion of ever-new and different CC licenses - "science commons"
is the latest, I hear - all of which prevent that work created under the
one license or license option can be reused in a work created under a
different license option. On top of that, the licenses are incompatible
to standard free software licenses such as the GNU GPL which for example
makes it difficult if not impossible to write software documentation in 
a CC-licensed document that reproduces larger sections GPL-licensed
program code. 

In the Free Software world, two licenses prevail, the GPL and the BSD
license (which is like public domain with creator attribution). The GPL
is more restrictive in that it prohibits use of free code in proprietary
software. The beauty of this solution is that those two licenses are
compatible at least in one way, namely that BSD code can be used in GPL
projects. 

The only thing that prevents people from using the GPL for
non-software work is that it speaks of the licensed work as "the program",
not "the work". Nevertheless, many non-software works, such as manual
pages, have been released under the GPL and continue to be released.
Creative Commons tries to be everybody's darling, catering to everyone
and any need, which in the end results in a big mess and confusion.
Perhaps one should start an advocacy effort for the GPL as the good,
intellectually beautiful, standard license for free work. The Creative
Commons website is still useful as it also provides a logo and
embeddable HTML/XML metadata for GPL-licensed work.

-F

-- 
http://userpage.fu-berlin.de/~cantsin/


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