Can You Fairly Distinguish Commercial vs. Non-Commercial Use In Copyright?

from the not-convinced...-but... dept

One issue that comes up in discussions of copyright quite often is the idea of whether or not you could change copyright law to distinguish between commercial and non-commercial use. In some ways this is quite appealing, and Cory Doctorow's latest column makes the case for at least exploring those distinctions. However, even he admits that there is a gray area, and I wonder if that gray area is really complex. I don't think it would necessarily make copyright law any worse, and my guess is that, at least initially, it would make copyright function better. After all, copyright law itself was really intended for commercial use (though, there are some lobbyists who falsely claim otherwise). It's only in this day and age when everyone has the tools of content creation, reproduction, performance and distribution in their pockets and on every desk that the old copyright laws have been shown to not function properly at all.

So perhaps separating out commercial and non-commercial use is a step in the right direction. But I'm still confused about how you determine what really is commercial use vs. non-commercial use. If I use your information to make an investment, is that commercial use? If I have a blog that uses a bit of your content, but has ads on it, is that commercial use? There are some RSS feeds that declare "not for commercial use!" But, if I put that RSS into my feed reader and read it for work, is that commercial use? It's not really that clear. And given that many individuals and companies feel that any even (borderline) commercial use of their works deserves compensation, you could see an awful lot of lawsuits filed as we try to define the borders. Perhaps copyright law could be written to make the border clear (though, I doubt it). Perhaps the lawsuits would establish clear boundaries as well, after a bit of upheaval and lawsuits. But I think that there will always be new situations that again test the fuzzy border between the two types of use, and drawing any sort of bright line distinction won't really fix very much.


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    hegemon13, Jan 29th, 2010 @ 12:13pm

    Direct profit

    I like this idea, but I agree that it would be difficult to define. It would be worth it to implement it, just to stop the crazy, anti-fan lawsuits. To do it right, though, "commercial use" should involve direct profit only. That is, if the profit is made directly from the sale of the content, either in a cost-per piece or subscription model, it is commercial use. Commercial adaptations, such as a movie made from a book, also count. However, ancillary income, even when enhanced by content, should not count. If a torrent site makes money from advertisement, that is not direct profit. Their money comes from the advertising, not the content. Even if their advertising space is more valuable because of the content, I don't care.

    As a writer, the only thing I care about is a publisher snatching my story, printing, and selling it without any compensation. Allowing corporations with the means for distribution to cut an author out would be not be a fair solution, which is why I don't support the full abolition of copyright. Anything else is fine with me. Share my stories for free, show them to your friends, anything to get my name out. But don't start selling copies directly. Although they are not the only opportunity for income for an author, books are scarce goods, and there are still plenty of people who will buy a physical book. Let the author in on the profits there.

     

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      Steven (profile), Jan 29th, 2010 @ 1:24pm

      Re: Direct profit

      I agree with that except for the part about commercial adaptation of a movie. I don't see why that would require payment to, or the blessing of, the writer of a book. A movie and a book are two different creative (hopefully) expressions of a story.

      Now if you are going to try and tell me that a storyline should be covered by copyright then I would have to strongly disagree.

       

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        hegemon13, Jan 29th, 2010 @ 3:06pm

        Re: Re: Direct profit

        No, a storyline should not be, and technically is not, covered by copyright. A very similar movie, I agree, should not be sued. But, to release a movie with the same title, same characters, and same plot should reasonably be covered by copyright. There is a difference between a story and a storyline.

        Then again, maybe the movie thing should be covered by trademark law, instead. The title could be covered by trademark, if it is not already.

         

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          Richard (profile), Jan 30th, 2010 @ 8:18am

          Re: Re: Re: Direct profit

          "The title could be covered by trademark"
          Not practical - there are too few possible titles and unlike the situation with trademarks there is only one namespace.

          There are already quite a few overlapping titles go to imdb think of a random movie title and search. You will find many duplicate titles for different films.

           

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    Anonymous Coward, Jan 29th, 2010 @ 12:15pm

    When the CRIA breaks copyright law for commercial use then it's not commercial because the CRIA constitutes those responsible for creating these stupid laws and hence the laws don't apply to them the same way.

     

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    Tor (profile), Jan 29th, 2010 @ 12:18pm

    I think many countries have tax laws that distinguish between some commercial and noncommercial activities, so the problem is not entirely new and one can probably find some inspiration in how this has been solved in other cases.

     

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    Anonymous Coward, Jan 29th, 2010 @ 12:25pm

    listen genius... LAW IS NOT CUT AND DRY. IT IS NOT BINARY.

    too many techies think that everything in law is flat out binary, and so they'll super-sensationalize the marginal injustices.

    no one is going to sue you because you read an RSS feed and talked about it on your blog.

    what's even funnier is that you are criticizing the copyright industry for NOT having clear boundaries here, but you criticize the music industry for having clear boundaries that don't fit your perception of "perfect" for the digital world. you clearly cannot be satisfied, and that's why the industry balks at people just like you.

     

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      :Lobo Santo (profile), Jan 29th, 2010 @ 12:41pm

      Re: Binary Copyright Industry

      Hello Coward!
      You are quite correct; law is very very far from binary. It is quite the mutable monster which can be bent in many directions to serve injustice or injustice.
      Sometimes (largely on accident, I think) you'll find the law serving justice, but that rarely happens.

      Also, there's a copyright industry? Really?? If that's true, like, holy shit. Talk about one of the least gainful economic activities for the GDP. Unnecessary middlemen should drop dead, thereby allowing people who ACTUALLY DO THINGS to get on with actually doing things.

       

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      Mike Masnick (profile), Jan 29th, 2010 @ 12:44pm

      Re:

      listen genius... LAW IS NOT CUT AND DRY. IT IS NOT BINARY.


      No one said it was. Not sure why you think I did.

      too many techies think that everything in law is flat out binary, and so they'll super-sensationalize the marginal injustices.


      Unsubstantiated statement.

      no one is going to sue you because you read an RSS feed and talked about it on your blog.


      Have you seen some of the lawsuits we discuss here?

      what's even funnier is that you are criticizing the copyright industry for NOT having clear boundaries here, but you criticize the music industry for having clear boundaries that don't fit your perception of "perfect" for the digital world.

      I don't even know what this sentence means. What exactly are you upset about?

      you clearly cannot be satisfied, and that's why the industry balks at people just like you.

      Also not quite sure what this means. How does the "industry" "balk" at me? I spend quite a bit of time with people in a variety of industries, and have found plenty quite receptive to what I have to say. I just got back from a nearly weeklong music industry conference where I found a tremendous interest in talking to me about where the industry is heading, and lots of interesting ideas on the horizon built off of these ideas. So I guess I just don't see what your argument is.

      Might help if you identified yourself.

       

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      mrharrysan (profile), Jan 29th, 2010 @ 12:45pm

      Re:

      Listen Coward, Mike is opining about the implications of a proposed change to existing copyright law. The ( recorded music?)"industry is failing of its own accord because they haven't adapted to the way people want to consume music. I fail to see the connection that you attempt to make.

       

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      AC, Jan 29th, 2010 @ 1:26pm

      Re:

      "listen genius... LAW IS NOT CUT AND DRY. IT IS NOT BINARY."

      This is so true that it's painful. This is why we have judges and juries to sort out the grey areas. I think what the article is suggesting is to revisit copyright law and generate better definitions to reduce the amount of grey area.

       

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        Marcus Carab (profile), Jan 29th, 2010 @ 3:57pm

        Re: Re:

        That's the thing. Law might not be binary, but we do (theoretically) attempt to make written law as clear as possible so that it can be fairly and equitably applied. Yes, you will always need humans to coordinate the interpretation, application and modification of the law, and few people would consent to being sentenced by an algorithm - but that doesn't mean that the concept of having clearly defined laws goes out the window.

         

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          Anonymous Coward, Jan 29th, 2010 @ 4:41pm

          Re: Re: Re:

          "Law might not be binary, but we do (theoretically) attempt to make written law as clear as possible"

          The thing is that when the constitution says something to the extent of "to promote the progress" such a thing may seem like a clear and noble cause but then the interpretation, what constitutes promoting the progress, is often fuzzy and non black and white and interpreted differently by different people.

          The law often might say things like "no reckless driving" but then what constitutes reckless driving can maybe be different from various situations and if you want to exactly codify what one can and can't do in each and every possible situation that can possibly arise (ie: was it around a school where children are around, was it raining, was there a lot of traffic, etc...) it will take many many more documents to cover every possible situation that one can think of. So they come up with laws like, "no reckless driving" to save resources (which is good) and then when someone is caught for doing something the cop though is reckless the court is to decide whether or not something is indeed reckless given the circumstances.

          So to say that we try to make written law clear is not always true and sometimes we make it general in order to make it adaptable to various situations and it's often good but not always.

           

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      Anonymous Coward, Jan 30th, 2010 @ 12:52am

      Re:

      i needs binary or the world falls into scary chaos

       

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    Michael Kirkland, Jan 29th, 2010 @ 12:38pm

    I really don't think it's that hard.

    Yes, a blog with ads is a commercial entity. A small quotation for commercial use is still fair use/dealing.

     

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    LostSailor (profile), Jan 29th, 2010 @ 12:42pm

    Distinguishing the Ideas and the Expression

    So perhaps separating out commercial and non-commercial use is a step in the right direction. But I'm still confused about how you determine what really is commercial use vs. non-commercial use.

    A distinction that sometimes gets lost in these debates is that between an idea and the fixed, specific expression of that idea. Once you keep that in mind, it's not all that confusing, though gray areas remain.

    If I use your information to make an investment, is that commercial use?

    Clearly no. No more so that if you use a bit of information or advice you read in the Wall Street Journal to make an investment is a commercial use of the newspaper. You can use the ideas in a bit of content all you want to guide your investment decisions. Unless of course your investment is to copy the content and sell it without permission.

    If I have a blog that uses a bit of your content, but has ads on it, is that commercial use?

    Perhaps. But hegemon13 above is on the right track with the idea that ancillary income, incidental to the site, but not the specific content should be a non-commercial use of that content. It shouldn't be difficult to craft a general rule on this. For example, if advertising is embedded in the content, such that the content becomes a specific delivery mechanism for the income-earning ads, that might be a commercial use of the content. If the ads are in a sidebar, non-commercial use of the content.

    There are some RSS feeds that declare "not for commercial use!" But, if I put that RSS into my feed reader and read it for work, is that commercial use?

    Clearly non-commercial. This is how RSS feeds are used all the time. See the first example above. A better question on RSS feeds would be if you use the RSS to feed a "breaking news" feature on your web site and it's the only content on the site other than ads. That would be a gray area, one that I would tend to consider a commercial use.

    Perhaps the lawsuits would establish clear boundaries as well, after a bit of upheaval.... But I think that there will always be new situations that again test the fuzzy border between the two types of use, and drawing any sort of bright line distinction won't really fix very much.

    There are always two parts to law: legislation and interpretation and application by the courts. Many posts here point out examples of "silly" lawsuits, but while you may not like lawsuits (except when someone is suing for greater fair use, such as Google v. publishers and authors), they are a fundamental part of determining what law is in the real world.

    If legislation were passed (and I agree that this would be a step in the right direction), it is inevitable that there would be lawsuits testing the boundaries of what is allowable under the legislation. It might be messy, it might not be maximally efficient, but then real life is rarely so efficient or clean-cut.

     

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      Anonymous Coward, Jan 29th, 2010 @ 1:05pm

      Re: Distinguishing the Ideas and the Expression

      "If legislation were passed (and I agree that this would be a step in the right direction), it is inevitable that there would be lawsuits testing the boundaries of what is allowable under the legislation."

      and when entities try to use lawsuits and our broken legal system to scare others into not competing and to push the boundaries in ways that extort others paying them money unfairly (even if legal) by either demanding a settlement payment or hoping that the judge will grant them money, then it is worth discussing and criticizing.

      "Many posts here point out examples of "silly" lawsuits, but while you may not like lawsuits"

      "It might be messy, it might not be maximally efficient, but then real life is rarely so efficient or clean-cut."

      and are you suggesting that we shouldn't complain and discuss those inefficiencies in an effort to make things more efficient?

       

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        LostSailor (profile), Jan 29th, 2010 @ 1:32pm

        Re: Re: Distinguishing the Ideas and the Expression

        By all means discuss how the system may be made more efficient. Indeed, the suggestion of changing the law to allow non-commercial use of content legal is, I think, an excellent step in the right direction toward making things more efficient. I also think it would tend to minimize lawsuits about copyright, though there will inevitably be some suits that would initially test, and after a decision, clarify the boundaries.

        But just because some "entities" try to push those boundaries in ways that abuse the system doesn't necessarily mean that the system or the law is broken.

         

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          Anonymous Coward, Jan 29th, 2010 @ 4:33pm

          Re: Re: Re: Distinguishing the Ideas and the Expression

          "But just because some "entities" try to push those boundaries in ways that abuse the system doesn't necessarily mean that the system or the law is broken."

          There are many Many MANY reasons why the system is broken.

           

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      Anonymous Coward, Jan 29th, 2010 @ 1:11pm

      Re: Distinguishing the Ideas and the Expression

      "but while you may not like lawsuits"

      no one said we don't like lawsuits, but what we don't like is for people to misuse the legal system (as you point out when you said "except when someone is suing for greater fair use") by lobbying for more restrictive IP laws and by abusing those laws.

      and if what you said is true (ie: when you said "it is inevitable that there would be lawsuits testing the boundaries of what is allowable under the legislation") that it's inevitable that people will try to misuse our legal system, then it is worth discussing how we can prevent such abuses.

       

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    The Anti-Mike (profile), Jan 29th, 2010 @ 1:37pm

    A couple of issues:

    First, for the purposes of copyright infringement, is there any real difference between commercial and non-commercial uses? I am not talking the home use / fair use stuff, but rather non-commercial uses of a copyrighted product. Example, using copyrighted image software to create a family photo album as opposed to using it to create an advertising campaign for a multinational. In the end, the violation is the same, no?

    Second, determining commercial use would have to look at the entire chain. Is anyone making money off the use of the product? Example, while you may post a video on YouTube without any commercial intentions, YouTube themselves uses the video for a commercial venture (their website). So even though your intention wasn't specifically commercial, you put the video into a commercial environment. If the material ends up on a commercial website, then it is commercial at least on the surface.

    It would be similar to posting on blog hosting that puts ads on the page. While your intention might not be commercial, the end result is commercial for someone.

     

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      Anonymous Coward, Jan 29th, 2010 @ 2:23pm

      Re:

      It's a good thing that all the pirating I do is strictly non-commercial. Wasn't copyright created to deter one business from stealing the intellectual property from another business, for profit?

       

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      Another AC, Jan 29th, 2010 @ 6:51pm

      Re:

      First: Yes, there is a huge difference between commercial and non-commercial use, and you should know this if you are half as intelligent as you purport. In the end, the violation is NOT the same. One is making money off the infringement, the other is not. There's your basic difference.

      Second: YouTube is a company, but posting something there does not make it a commercial use. But you can't see the difference, as we already pointed out in step one, so this just flew over your head.

      The end is almost always commercial for SOMEone, but that's the someone you should be going after. Again, a point that you tend to ignore.

       

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        The Anti-Mike (profile), Jan 31st, 2010 @ 1:42am

        Re: Re:

        Sorry, but I have to disagree on both points.

        Commercial or non-commercial (ie, you want to get paid or you don't) pretty much has the same result. Jammie Thomas wasn't doing commercial file sharing (she wasn't charging for the content) but the end results are the same, people who have the product who did not pay for it. The effects of file sharing, example, are commercial even if no money trades hands.

        As for Youtube, when you choose to upload something, you are putting it on a commercial service. There is no way for your video to be seen without advertising. Thus, it's commercial even if it is not your specific intention.

         

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          Anonymous Coward, Jan 31st, 2010 @ 11:38am

          Re: Re: Re:

          Commercial or non-commercial (ie, you want to get paid or you don't) pretty much has the same result.

          Same thing for fair use.

           

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            Anonymous Coward, Jan 31st, 2010 @ 2:13pm

            Re: Re: Re: Re:

            Don't mention fair use to TAM. See, artists and right's holders deserve to be protected except if an artist is using fair use to make their art then they don't deserve protection.

            Doesn't TAM make perfect sense?

             

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    Anonymous Coward, Jan 29th, 2010 @ 1:42pm

    Copyright does not apply to information itself.

    If I use your information to make an investment, is that commercial use?

    I don't think "information" is covered by copyright, so the answer is "no", and I don't know why you would think otherwise.

    If I have a blog that uses a bit of your content, but has ads on it, is that commercial use?

    I would say "yes". And that would include Techdirt (although it might be permitted by fair use).

    There are some RSS feeds that declare "not for commercial use!" But, if I put that RSS into my feed reader and read it for work, is that commercial use?

    Again, that doesn't seem like anything that copyright would cover in the first place (in the US). As far as I know, copyright doesn't grant a monopoly right to "read", but to copy and distribute. So I don't know why you would ask about a commercial copyright distinction in a case where copyright doesn't apply. You really seem to be over-reaching.

     

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      Mike Masnick (profile), Jan 29th, 2010 @ 2:00pm

      Re: Copyright does not apply to information itself.

      I don't think "information" is covered by copyright, so the answer is "no", and I don't know why you would think otherwise.

      Because it is a "use" of the expression. Given that we've seen lawsuits from people being upset about being "linked to" their content saying that's infringement, I think this is still an open question.

      I would say "yes". And that would include Techdirt (although it might be permitted by fair use).


      So journalistic use would be commercial use?

      Again, that doesn't seem like anything that copyright would cover in the first place (in the US). As far as I know, copyright doesn't grant a monopoly right to "read", but to copy and distribute

      By putting it into an RSS reader, I am both copying it and distributing it.

      So I don't know why you would ask about a commercial copyright distinction in a case where copyright doesn't apply. You really seem to be over-reaching.

      As you said, copyright covers copying and distribution -- both of which an RSS reader do.

       

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        Anonymous Coward, Jan 29th, 2010 @ 8:08pm

        Re: Re: Copyright does not apply to information itself.

        Given that we've seen lawsuits from people being upset about being "linked to" their content saying that's infringement, I think this is still an open question.

        I could file a lawsuit against Santa, but that wouldn't make his existence "an open question". When a US court rules that information is covered by copyright, let me know.

        So journalistic use would be commercial use?

        Commercial journalistic use, yes. And also permitted by fair use.

        By putting it into an RSS reader, I am both copying it and distributing it.

        I disagree. Copying it into an RSS feed would do so, however.

        As you said, copyright covers copying and distribution -- both of which an RSS reader do.

        As I said, I disagree.

         

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    :), Jan 29th, 2010 @ 6:17pm

    Storyline Patent.

    http://www.plotpatents.com/

    Some people are trying really hard to extend the IP laws to include everything they can.

     

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    Nick Coghlan (profile), Jan 29th, 2010 @ 7:05pm

    Bounding the grey area

    Laws wouldn't be able to eliminate the grey area, but the could definitely put bounds on it.

    If you're past "this line" you are definitely infringing
    If you're past "that line" you are not doing anything wrong
    If you're between those two lines, tell it to the judge (assuming anyone bothers to sue you)

    That said, the copyright monopolists still have too much power for anyone to shut off their gravy train just yet. It is going to take a generational shift to fix this one. Given current retirement ages, we're probably still looking at another 20+ years before the reins of power are held predominantly by "digital natives" that see current copyright laws for the anachronism they are.

     

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    Crosbie Fitch (profile), Jan 30th, 2010 @ 4:23am

    Corporate/non-corporate is a better distinction

    Why, only just the other day in response to a suggestion that copyright should only apply to commercial use (whatever that is), I suggested that a better, ethical distinction is not commercial/non-commercial, but corporation/individual.

    It's not unethical to subject corporations to copyright, but it is unethical to subject individuals to it. This is because corporations, being artificial entities, don't have such a thing as a natural right to liberty.

    Here are examples of how things would work in each case:

    Commercial/non-commercial
    • Individuals and corporations can file-share or stream music with impunity as long as no money changes hands.
    • Individuals are sued when they sell their MP3 player without having first deleted its contents.
    Corporate/Individual
    • Copyright applies to corporations as usual, in all cases, whether commercial or non-commercial.
    • Individuals are never sued for copyright infringement, even if money changes hands, e.g. when selling full MP3 players, or as indie artists singing covers at a concert in exchange for a share of ticket sales. The labels of signed artists would have to pay a license fee, etc.

    Ultimately, even if copyright applied only to corporations it would still be culturally detrimental.

    However, for an interim compromise, a corporate/individual demarcation would be far better than a commercial/non-commercial one.

    It would be an even better distinction for Creative Commons to adopt than NC, given most CC users seem to think NC means 'big nasty publishing corporations' can't exploit their work, but nice, little guys can (if they ask politely). It actually means the little guy will ignore the NC work, whereas the corporation will exploit it without a second thought given the copyright holder has zero litigation budget.

     

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    Pat Aufderheide (profile), Jan 30th, 2010 @ 7:52am

    Fair Use and Noncommerciality

    The noncommercial/commercial distinction has not been very helpful, partly because the platforms that are the new distribution mechanisms for everyone tend to be commercial, and therefore even if your work is noncommercial, it floats onto the Internet via commercial platforms. Making this distinction the key to fair use also unhelpfully shackles emerging business models. But fair use is actually quite robust as is, and is grounded in a combination of transformativeness (did you use the material for a different purpose?) and appropriateness (did you use just enough). This creates a floating public domain for current work, and is enthusiastically supported by judges (despite what large content companies want non-large content companies to believe).

     

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    Rollie Cole (profile), Jan 30th, 2010 @ 11:17am

    Commercial/Noncommercial vs Corporate/Individual

    There are many more solo proprietorships and partnerships then there are corporations, so an individual/corporate division leaves a lot of "business" use on the non-corporate side.

    As someone who taught Copyright Law at a law school, and practiced Copyright Law for several years, I actually favor the commercial/noncommercial distinction and think it could be made to work, SO LONG AS "commercial" is given a fairly limited and specific definition.

    Here are few examples -- selling a copy (and/or licensing it) for a fee would be clearly commercial. But if I were czar of the universe, "using" a copy (e.g. a software program like MS Word) in a commercial place would not be a "commercial" use, especially since the copyright law (in the US at least) is fairly clear about what rights a copyright holder has control of, (reproduction, distribution, et al), and "use" is NOT one of those.

    Reproducing and distributing copies, in my universe, would be subject to a fact-based analysis, with the idea that such activity is only "non-commercial" if in fact bundles without the work in question are being distributed with no change in the fee collected. This would apply to both per-item and subscription bundles. I would put the burden of proof on the party claiming "non-commercial." So "attend a conference, get free software or photos or music or whatever" would have to prove that a number of people came, for exactly the same price, without receiving the item(s) in question.

    I would allow "Superbowl parties," for instance, so long as no fee was charged, or if a fee was charged (say to pay for chips and beer), people were allowed to come without paying if they promised not to consume and chips or beer, to make it clear the fee was for the "chips and beer," not the Superbowl.

    If the organization was regularly in the business of selling chips and beer, and wanted the Superbowl to increase such sales, that would be a different case.

    But I would allow churches, etc. to do "movie nights" so long as the charge was for the refreshments, not entry per se.

    This is NOT a perfect system by any means; but I think it would be better than the status quo.

     

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    Anonymous Coward, Jan 30th, 2010 @ 2:56pm

    Fair Use

    But I'm still confused about how you determine what really is commercial use vs. non-commercial use.

    It doesn't seem like it should be any harder than determining "fair use". If we can't get rid of copyright, then the more exemptions, the better.

     

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    ike, Feb 22nd, 2010 @ 3:23pm

    One of the running themes of this blog is that people don't do things for free. They do things with the intent of getting something other benefit in exchange. When viewed this way, every transaction, even free a one, is commercial. It's just a question of degree.

    A law that places labels every as simply commercial or non-commercial is flawed from the get-go.

     

    reply to this | link to this | view in chronology ]


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