That Blurry Line Between Commercial & Non-Commercial Use Still Troubling For Creative Commons

from the is-this-commercial-use? dept

First off, I should say that I respect what the folks over at Creative Commons are doing, and think they really do have the best interests of content creators and the public at heart in their plans — but I’ve always been a bit uneasy with the whole setup of Creative Commons — some of which I expressed last year in discussing the difficulty in distinguishing commercial from non-commercial use, as is necessary in many CC licenses. As I wrote at the time:

But it’s this blurring of “personal” and “work” lives that again has me pondering if there really is a meaningful distinction between “commercial use” and “non-commercial use.” Some of this debate first came about years ago, when some web publishers claimed that their RSS feeds were “for non-commercial use only,” but what does that mean? If I read your site as part of my job, have I violated that rule? If I learn information from your feed that allows me to make money, have I violated that rule? More recently, there have been proposals to separate copyright violations, such that “non-commercial use” is allowed. But, again, you quickly run into very questionable scenarios. If my personal blog has Google AdSense on it, is it commercial use? If I end up getting a job because of my “personal use” of your content, does it suddenly morph into “commercial use”? The questions get more and more confusing, and the mess would make less and less sense.

It seems that Danny Sullivan has come across the same issue, and is taking both Flickr and Creative Commons to task for the ambiguity in their licenses which is so confusing that even those who are using CC licenses don’t seem to totally agree with what their own licenses say. He details a variety of stories, where it’s simply not clear at all what is really allowed under the CC license being used. If a commercial blog uses and attributes a photo that has a “non-commercial use” only license, is that infringing? Or is that “non-commercial use” only limited to not selling the image. But some might argue that you were “selling ads off of the image.” It all gets quite blurry fast.

To their credit, the folks at Creative Commons have been working hard on trying to deal with the ambiguity (and part of the reason for the original post I linked to at the beginning of this story was a survey they were taking on this very subject). But it’s quite clear that there’s still an awful lot of ambiguity that isn’t really helped by the phrase “non-commercial use.”

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Comments on “That Blurry Line Between Commercial & Non-Commercial Use Still Troubling For Creative Commons”

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Anonymous Coward says:

The answer is more clear when you realize that “commercial” actually means “not to the tastes of the creator, for instance, crass commercialization” but none of the people who feel this way about commercialization have thought through their loathing enough to realize that it is a flimsy non-definition.

Study the way “corporation” as a word has been slimed up by these same people to the point where it is basically just a slur, and consider that “commercial” in the minds of these folks is about the same: just a thing that corporations do.

Dont sell my photo!
Dont sell my photo retouched!
Dont sell my photo retouched with a lizard photoshopped into it!
Dont sell my photo with a retouched lizard, traced over with a digital pencil!
Dont sell a t-shirt with an image of a tracing of my photo with a retouched lizard!
Dont take a photo of someone wearing a t-shirt with an image of a tracing of my photo with a retouched lizard and use it on your ad blog!

So you ask where commercial use begins and ends? When it ticks off the creator.

zcat (profile) says:

"confused" artists

A lot of artists seem to take the view that “I’m not charging for my work, therefore I don’t want anyone to ever have to pay for it”

They’re missing the point. If they choose “Non-Commercial” then their work will only get distributed as far as it can be distributed ‘at no cost’ (or at cost to the distributor which they’re prohibited from recouping). Nobody is allowed to provide a service such as transferring the work to paper or CDROM and mailing it to remote location, so anyone who cannot get the work ‘for free’ is effectively prevented from getting it at all.

If they choose “Share Alike” then they’re not restricting the distribution; the work can and will be distributed to everyone who wants it, in the form they want it, for only the marginal cost (share-alike prevents monopoly pricing) of making it available.

Anonymous Coward says:


The CC is meant to handle the *FACT* of electronic data. Everything is a copy. When you load software into memory, you’re copying it. Technically, a violation of copyright (exclusive right to copy). Or you copy it onto another drive. Or you attach it to email.

People are free to copy things I make to their own machine for their own use. An image used as a desktop. Or a skin they make themselves for their own use.

They are not allowed to bundle a copy of it into a product. They can’t redistribute that skin without my permission. That would be not for personal use.

There is a version of the CC licence that does allow such reuse.

Basically, I use a tight CC licence that simply allows people to meet the reality of the electronic age where everything is a copy.

I’ve had people jack my stuff and use it on mass produced products for sale. Had to send the law after them. Sad thing is, I’d have let them use it if they had asked. That’s what the licence said. It was clearly posted, in the meta-data, and in the digital watermark.

When in doubt: ask the content owner. Same thing you have to do with *all* copyrighted material.

It’s not that hard.

Just ask first.

hegemon13 says:

Commercial resale

I don’t think “commercial use” is specific enough. What should be separated out as a violation, however, is commercial resale of the content. That is, if the income comes directly from the resale of unauthorized copies of content, it should be a violation. If someone is burning unauthorized copies of CDs or printing unauthorized copies of a book and reselling them, that would be commercial resale. If the income is indirect, such as ad revenue from a torrent site, it should not count. That revenue comes from providing a service, not from the direct sale of content.

There still needs to be some kind of protection in place to protect artists, authors, and musicians from corporate exploitation. If a publisher can simply jump on an ebook site, look up the most downloaded titles, and start printing and selling them without any kind of compensation to the author, that would lead to ridiculous levels of exploitation. The Fact that authors would still write (because writers love what they do — they certainly don’t do it for the slim chance of money) does not mean they should be exploited. Same with other art forms.

Anonymous Coward says:

Re: Commercial resale

That is, if the income comes directly from the resale of unauthorized copies of content, it should be a violation.

OK, how about this? Someone sells plastic CD cases. Now the cases just so happen to come with unauthorized copies of CDs in them for free (with the case). That’s not directly selling the CDs but using them to sell something else (the cases).

hegemon13 says:


“…which is so confusing that even those who are using CC licenses don’t seem to totally agree with what their own licenses say.”

Really? I think CC has laid out the clearest, most transparent, most easily accessible licenses I have ever seen. If you go to their website, they clearly explain all the optional attributes in plain English (no legal-speak there), and they even provide little icons for each type of license so that any user who has read about CC can quickly know exactly what attributes that license includes. How could they possibly make it any easier? We are talking about licenses here, which usually take the form of several-page, indecipherable documents.

Dirk Belligerent (profile) says:

I use a CC license on my Flickr photos allowing redistribution with attribution (my photos are watermarked at the bottom to make it automatically compliant), but no commercial use. I mostly shoot live bands and this allows them to use my photos on their web sites (helping them with good images and me by getting my name around), but if they want to use my work for CD art/merch, then they’ll have to compensate me. Since most are poor, starving artists, it may be as little as a t-shirt and a pizza, but that’s my option. (It’s like what Steve Albini does, soaking major labels and cutting deals for indies.)

Jason says:

Re: Re:

Sorry, but isn’t it commercial use if a band places your images on their website to promote their band? I mean that’s about as commercial as it gets.

Seems to fall back into AC’s definition in the first post:

“not to the tastes of the creator”

But what is really right and fair is simple: share and consider it shared. Don’t share, and you can horde it all you want.

Scott Walker (user link) says:

Attribution's weak link: not including instructions with the content

I read Danny’s article, and it doesn’t come across as a slam against CC so much as frustration over Flickr’s implementations of the CC license options for posters.

Still, there’s a huge problem with the attribution process, which was pointed out in Danny’s article. Ultimately, *how* attribution must be done is “in the manner specified by the author or licensor.”

For me, the biggest challenge is finding an obvious, consistent way for creators to ensure others know exactly *how* attribution should be given. It’s a thorny issue, because you may come across a photo that’s covered by a CC license but does not come with sufficient information to allow the user to satisfy the creator’s attribution requirements.

At this time, the success of communicating attribution instructions for CC content is dependent on the environment the content is posted in. No problem in the analog world of books, but online things get messy fast.

Short of bundling the attribution/license instructions with digital content so that they’re inseparable (not even sure how that would work), the attribution system could always break down if the poster does not or cannot provide exact attribution instructions in the environment where the content is posted.

All of that said, the issue of commercial v non-commercial is very much something that could use some clarification.

Kay Lee says:


Mine is more of a question than a comment. I have seen, what I believe are companies/stores that are “dodging” the rules a bit by following “the letter” if not the “spirit” of cc and such. Someone correct me if I’ve misunderstood.

Recently, I was in a tourist shop on the beach and I saw some material that I KNOW to be “protected”.. Curious to how they were getting away with it, but not wanting to cause the owner to become defensive and toss me out (It’s a pretty cool little store and I like hanging out and seeing all that they have to offer), I asked if I would get in trouble for BUYING such a shirt with an image.. didn’t let on that I knew much about cc and such. The proprietor told me that what he does is.. he sells the t-shirts as blanks… and if the customer so chooses, they can pick a “FREE” image to have put onto the shirt. Thus making it a case of where he doesn’t sell (or profit from) the image itself.

Is that “legal”?

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