<nettime> "non-commercial"? digest [stalder, geer]

[nettime's_kontent_kreator <nettime@bbs.thing.net>]

Re: <nettime> What's the meaning of "non-commercial"?
     Felix Stalder <felix@openflows.org>
     Benjamin Geer <ben@socialtools.net>

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From: Felix Stalder <felix@openflows.org>
Subject: Re: <nettime> What's the meaning of "non-commercial"?
Date: Thu, 6 Jan 2005 22:08:48 -0500

"How do you define commercial?" This has become my favorite thing to ask at CC 
events, and I have yet to receive a straight-forward reply. 

> 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.

I'm not sure if wikipedia is good source here. The above definition of 
commercial seems to include even gifts. Wikipedia, or other home-brew 
definitions are, at any rate, not relevant. The problem is, there is no 
straight-forward _legal_ definition of commercial. I suspect lawyer would 
approach this one a case to case basis akin to "I cannot define pornography, 
but I know it when I see it". 

In terms of culture, my sense is that lawyers treat small releases of music, 
where the musician/publisher barely recoups his/her costs, as non-commercial. 
The problem is, what happens if the artist suddenly becomes successful. 
Where's the boundary, 3000 CDs sold, 30'000? My hunch is that DJ Dangermouse 
could not have used the White Album even if it would have been released under 
the non-commercial license.

Last June, the women who heads the BBC's Creative Archives project was in 
Vienna at a conference [1] where she talked about uses of Creative Archive 
content she in terms of students using BBC footage for school work. I guess 
that would have already been covered under fair use....

> 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.

I don't think the presence or absence of money in the transaction is a 
criteria in terms of the commercial nature of a venture. In the US, you can 
watch television (at least those broadcasted terrestrially) without having to 
pay anyone, yet most of that is commercial. 

On the other hand, splitting the gasoline costs in a car ride doesn't make 
driving commercial enterprise.

The problem is, rather than getting the lawyers out of the way, the 
non-commercial clause brings them back in. Rather than reducing uncertainty, 
it creates. Particularly for cultural producers who tend to operate in this 
gray zone.

> 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).

If you like derivatives.

> 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". 

I think there are good reasons why artists would not like the GPL in all 
cases, mainly around the issue of derivative works. I think it is legitimate 
to not want other people "improve" your work. I know Florian doesn't like the 
distinction between functional and expressive works because there certainly 
is a (small) body of work that is both functional and expressive. Yet, for 
the majority of works, the categories are pretty unproblematic. 

I think we should not, just for the sake of having a simple and beautiful 
license, throw the baby out with the bathwater. I don't think there is a 
one-approach-fits-all solution. 


> -F
Felix


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http://felix.openflows.org

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Date: Thu, 06 Jan 2005 22:57:25 +0000
From: Benjamin Geer <ben@socialtools.net>
Subject: Re: <nettime> What's the meaning of "non-commercial"?

Florian Cramer wrote:
> 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

At a recent talk given by Wikipedia founder Jimmy Wales, I asked him 
whether it would be OK with him if a publishing company marketed a paper 
edition of Wikipedia, made huge amounts of money from it, and didn't 
give any to the Wikipedia project.  He said he'd have to take a deep 
breath and say yes.  Although, he added, they might choose to contribute 
some money in order to generate goodwill.  And if they didn't, he might 
be able to generate enough negative publicity to make them regret it.

Is that a good enough answer for everyone?  It isn't for me.  If someone 
makes money from a book that includes texts from the Open Organizations 
project, I want to make sure that whatever can reasonably be considered 
surplus value is fed back into the project, not just, say, a token 1%, 
or however much I could get them to contribute by a means of a negative 
publicity campaign (which in any case I have neither the time nor the 
resources to mount).

> (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.

The same thing can be done if the NonCommercial licence is used.  If the 
Swedish school system wants to use our NonCommercial-licensed work, and 
they're not sure whether the licence allows it, all they have to do is 
ask us for permission.

If it's not clear who the copyright owner is, and therefore they're not 
sure who to ask, that's a different problem, one that affects all 
copyrighted works regardless of the licence used.

Ben

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