Re: <nettime> Benjamin Mako Hill on Creative Commons

[Felix Stalder <felix@openflows.org>]

> > The CC licenses, however, try to provide some protections for the
> > producers of content by providing non-commercial clauses.
>
> Which is a bogus advantage. We had this discussion in Nettime before,
> and the common sense was that the concept of "commerce" implied in those
> clauses is neither defined nor clear at all. If our exchange would be
> printed in a Nettime book, and the book was for sale even if it made no
> profit or even losses for the publishers, it would be still a
> "commercial" distribution and hence not allow the inclusion of material
> licensed with this clause. This would even be the case if it were
> published on a CD-ROM sold for 50 cents, or in exchange for a blank CD
> medium.

The non-commercial clause is, indeed, deeply problematic. It is virtually
impossible to define what commercial means. It is not a legal concept to my
knowledge. Is everything that is sold a commercial transaction. Or only things
that are sold with the intention of profit? Then again, how would one define
intention? Or is it the success that makes a venture commercial?  Assuming the
nettime reader, as it was printed and distributed, did not constitute a commercial
venture. But what if it had been a runaway success, with four reprints? That would
have made it profitable, for sure. Where would one draw the line? After the first
re-print? or the second?

In the end, the non-commercial clause restricts the creative commons to
consumption, hobbyism, and, how convenient for its academic sponsors, to teaching. 

While I see the point of, say, musicians not wanting to have their works misused
in advertisement, the share-alike clause of the GPL would already have prevented
this from ever happening. There is no way in hell that any brand would allow its
ads to be released under the GPL. You cannot put a trademark under the GPL.

The only example I can think of that the GPL would not protect a musician against
crass, unwanted commercial exploitation is if a GPLed song was included in a
commercial compilation of songs. This would not affect the closed license of the
other songs, or the compilation as a whole (similar to including free software on
a cd with other programs).

In the end, while I do not agree with Florian that the differences between works
that are necessarily collaborative and temporary (say, software) than those that
can be indivually produced and finished (say, a novel) are negligible, on the
level of the license the share-alike aspect works well for both as a protection
against commercial rip-offs without producing the problems of a non-commercial
clause.


Felix



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