Creative Commons Continues To Try To Help Courts Understand What Its NonCommercial License Means
from the important-stuff dept
Over the years we’ve expressed some concerns about the NonCommercial license option from Creative Commons. Even as we’re incredibly supportive of CC, the NonCommercial license often seemed to raise more questions than answers — to the point that some have argued that it actually harmed CC’s brand and resulted in significant confusion for how CC licenses work. There have even been suggestions that CC should drop the NC license option altogether.
To its immense credit, people at Creative Commons have appeared to take these concerns quite seriously over the past few years, doing quite a bit of work to try to clarify what NonCommercial means for the purpose of the license. Our specific concern is that NonCommercial could mean all different things to different people. If you’re using a NonCommercial CC-licensed image on a personal blog and you have ads on that blog (even if you don’t make much money from it) is that non commercial? If you use it in a tweet and your Twitter bio promotes your business is that non commercial?
Two years ago we wrote about Creative Commons stepping in to file an amicus brief in a case that raised some specific issues concerning a NonCommercial license. An educational non-profit, Great Minds, sued FedEx over FedEx Office shops photocopying some Great Minds works for educational entities, even though the works were licensed under CC’s BY-NC-SA 4.0 license. Great Minds argued that because FedEx made money from copying, it’s “commercial” and thus in violation of the license. Creative Commons stepped into that lawsuit and explicitly stated that Great Minds interpretation was wrong.
In the FedEx case, both the district court and the 2nd Circuit appeals court rejected Great Minds’ interpretation and tossed out the lawsuit saying that the license in question did not limit FedEx from charging for copies. Great Minds also filed a nearly identical case against Office Depot in California, which also was dismissed, despite Great Minds claiming that this case is different than the FedEx one (specifically, it argued that Office Depot employees were “actively soliciting” schools to copy Great Minds’ works). The court didn’t buy it.
That case has now been appealed to the 9th Circuit (who, as we’ve noted all too frequently, mucks up copyright cases). And Creative Commons is back again asking the court if it can file an amicus brief again. This seems like the perfect situation for an amicus brief, given that Creative Commons certainly should understand its licenses the best. The proposed brief is well worth a read.
Creative Commons appreciates the valuable contributions to the development of open educational resources made by Great Minds, along with its use of a standard CC public license to enable broad reuse of the materials it produces. However, its interpretation of the Creative Commons license at issue in this lawsuit is incorrect. As the U.S. Court of Appeals for the Second Circuit correctly determined in Great Minds? prior suit against another copy shop, FedEx Office, the license authorizes a bona fide non-commercial user to discharge her licensed rights by directing a third party like Office Depot to make copies at her instruction. Creative Commons welcomes and respectfully seeks a similar holding from this Court:
Under the Creative Commons ?NonCommercial? license at issue, a bona fide non-commercial user may engage contractors to exercise the non-commercial user?s own licensed rights on behalf and at the direction of the noncommercial user, irrespective of whether the contractor is itself non-commercial actor.
Going into details, CC explains how Great Minds is completely misinterpreting its NC license term:
The CC BY-NC-SA 4.0 license fully authorizes the conduct that Great Minds contends on appeal is unlawful. The only licensee here is the school district. Under the terms of the license and prevailing principles of law, a school district may permissibly use Office Depot as a means by which the school district exercises its own licensed rights. The license does not restrict the school district to using only its own employees to exercise those rights; it allows the school district to engage anyone?employees and non-employee contractors alike?to do so. To establish a rule that denies a licensee the ability to use non-employee actors to exercise the rights it is lawfully entitled to exercise would contravene the plain language of the license and established precedent.
To be sure, Office Depot could not on its own initiative make copies of Great Minds? curricular materials and sell them for a profit. In that scenario, Office Depot would not be acting at the direction of a bona fide licensee, would not be shielded by any bona fide licensee?s license, and thus would itself need to rely on the terms and conditions of the CC BY-NC-SA 4.0?including limiting its conduct to non-commercial purposes when reproducing the licensed work. But that is not what is alleged here. Instead, on the facts as pleaded, the school district has, under its license from Great Minds, engaged Office Depot to make copies and paid Office Depot for the service, just as it could have paid an employee to make the same copies at an Office Depot store. In that scenario, Office Depot is not a licensee in its own right, and its own, independent purpose is analytically irrelevant.
Hopefully the 9th Circuit follows the lead of the 2nd and agrees that Great Minds is misreading the NC part of the license. This would go a long way towards further establishing that NC licenses aren’t so limiting.
Filed Under: copying, copyright, creative commons, licenses, nc, noncommercial
Companies: creative commons, fedex, great minds, office depot
Comments on “Creative Commons Continues To Try To Help Courts Understand What Its NonCommercial License Means”
Enrichment
Because enriching the commons is the real purpose of copyright, the Creative Commons license is very important way to do that. I’m glad that Great Minds has not prevailed in mucking this up.
What I Find Particularly Fun ...
… is stuff with NC restrictions being posted to commercial sites like DeviantArt. And also when I point out to people buying cheap(er) “non-commercial” licences for proprietary content-creation software that they wouldn’t be allowed to post their work to DA, YouTube, Facebook etc, they get indignant.
Do these big, important sites get a special exemption to make money off your work when you can’t?
Re: What I Find Particularly Fun ...
Not really, but DeviantArt’s owners and operators cannot be expected to know, with the certainty of God, who truly owns the rights to every image on the site. The only way they can figure that out is by being told an image goes against the TOS, then making a determination on that issue. We should never expect DA admins to know with precognitive precision whether a given image is being uploaded by the person who made it; to do so would be tantamount to asking for DA to hold back every uploaded image until admins can figure out the copyright issue—and that would kill the entire point of the service.
Re: Re: What I Find Particularly Fun ...
There is stuff posted on there with NC licences clearly marked.
Isn’t that what YouTube’s ContentID does?
Re: Re: Re:
I can upload someone else’s photograph to DA and mark it as NC. How does that give me the rights to that image, including the right to license it for non-commercial use?
Yeah, and that little hellspawn of a program catches videos with copyrighted content used under Fair Use principles all the time. ContentID does not take context into account; a similar system on DA would lack that feature, too.
If I commissioned an artist to create an illustration for me, and I uploaded that commission to my DeviantArt account with the explicit permission of that artist, should I still receive a copyright strike from DA for uploading art that I did not create? (And before you answer: If ContentID makes no room for context such as “I commissioned this” or “this is Fair Use”, neither can you.)
Re: Re: Re:2 What I Find Particularly Fun ...
So, should big and important sites get a special dispensation from copyright restrictions, just because they are big and important?
What happened to “one law for all”?
Re: Re: Re:3
Thanks for letting me know you misconstrued my argument!
No. My point, if you would stop being willfully obtuse about this sort of thing, is that any sort of ContentID-style program cannot be, and will never be, built with context in mind. ContentID does not care if a movie reviewer’s video about a recent film uses footage from said film in a manner consistent with Fair Use—that it uses the footage at all is enough for ContentID to make a match and take the action deemed appropriate by the rightsholder(s). The same would go for a DeviantArt version of ContentID: It would not care if an artist and the person who commissioned that artist both post the same image, only that the commissioner uploaded an image that they did not create.
Sites both big and small would suffer from having to hold back content for the sake of running down copyrights. Any existing service would grind to a halt; imagine how quick people would abandon YouTube if they had to wait days for an upload to be officially and legally approved by Google’s legal department. The next DeviantArt, Twitter, Tumblr, YouTube, etc. would never get off the ground if the admins for that service had to triple-check who owns the copyright on a given submission before letting the submission go live. We have Section 230 precisely because sites like DeviantArt require the ability to moderate a service while retaining the ability to allow public uploads with minimal-to-no delay. To remove that protection would bring any site or service that allows public uploads—DA, Twitter, Tumblr, YouTube, Facebook, Pastebin, MEGA, Mediafire, even comment sections on blogs such as Techdirt—to a screeching, traffic-reducing, service-killing halt.
Re: Re: Re:4 Re:
Please remember, you are speaking to someone who’s own argument suggests that they have no right to post their own argument (because how does techdirt even know that content is there, or that they have a license that can transfer/sublicense to TD)?
That said. I appreciate your arguments/logical-reasoning (and I hope anyone who comes after can gains some useful points of view from some of the “conversations” here).
Re: Re: Re:5 they have no right to post their own argument
Talk about strawmen. I thought we were specifically discussing the meaning of “non-commercial” here.
Re: Re: Re:4 Re:
In theory, creators and licensees could use a unique hash to identify a license to a work and DA or other sites could incorporate the licensing hash into their “content-id” programs. Something like the way TLS certificates work to authenticate and encrypt. The content-ID matching data would include the private key for the work, and each license would have its own public key. It wouldn’t address fair use very well, but it would prevent false positives and DMCA trolling better than the current system.
Re: Re: Re:5
In theory, yes, that could be a thing.
In practice, it might not account for changes in an image such as JPEG compression (e.g., someone saves an image with slightly less compression to get around a filter).
Which makes it pointless as far as this discussion goes. Works created with parts of other media used under Fair Use principles have just as much right to be published and be seen as the media that such works use. ContentID dings those kinds of works precisely because it cannot, and will never, account for context such as Fair Use.
Automated tools are nice for spamfilters. They do a shit job when it comes to media, though. Just ask Epic Games.
Re: Re: Re:5 Re:
A hash at best can associate a license with a work, but that does not confirm who the original creator was. Even if public key based, all it would prove is that the owner of the key created the hash, which s not proof that they also created the work.
Also, I suspect that if someone had the time and ability to actually verify the copyrights in the Content ID data base they would find wrong claims, and unproveable claims. The latter due to paper work having gone missing.
Re: Re: Re:6 Re:
Re: Re: Re:7 Re:
That sounds, to me, suspiciously like the definition for torture.
So, if understand you correctly, you are saying that if I doubt you wrote this piece (since it sounds too stupid to be anything but a excerpt from a, fictional, work someone wrote entitle "The Fifty-Seven Most moronic ideas I could come up with") that you, as the (suspected) copyright infringer should be tortured?
Re: Re: Re:7 Re:
Just where do you find a qualified necromancer, when anybody with actual knowledge is dead, and does necromancy work when the remain have been cremated?
Re: Re: Re:7 Re:
Did you happen to write a memo about “enhanced interrogation techniques”, by any chance?
Re: Re: Re:8 Re:
Re: Re: Re:9
…fucking what‽
Are you literally saying that copyright infringement should be punished with actual physical torture of the infringer?
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Re: Re: Re:11 Re:
You have to be a troll—because only a troll would suggest waterboarding as a way to deal with copyright infringement and say they mean it. ????
Re: Re: Re:12 Re:
For a while I pegged them merely as a copyright maximalist, but at this point I fit them into the ‘deliberate parody’ category as someone who intentionally poe’s copyright maximalists for whatever reason.
Re: Re: Re:3 What I Find Particularly Fun ...
ContentID in NOT the law. It is a program that Youtube offered to the media companies to placate them. It’s existence and usage is not required by law.
Re: Re: Re: What I Find Particularly Fun ...
Re: Re: What I Find Particularly Fun ...
That may be workable for any given image, but it’s not sound practice when the site depends on numerous images, meaning, if "are too many to check" then that’s too bad: the sit’es "business model" just isn’t workable. No, doesn’t matter how "deviants" want the artwork: they have NO intrinsic right to it, as the creators do to control copies. YES, I am saying that such sites should be sued out of existence, and difficulty proving contributory infringement in court is the only actual reason hasn’t been.
Nor, of course, does your notion apply at all when the given content is an obviously recent movie, labeled with right name, and so on. Any content that one has only to glance and suspect should be taken down. Sites have NO right to use content, that’s THE problem, and the sitch is slowly changing, so stay tuned to Torrent Freak where it’s noted that pirates are being sued and removed almost daily, unlike here on "only happy news for pirates" Techdirt.
[This, by the way, demonstrates how easy it is to ramble while typing away as Techdirt re-writers do and make an adequately plausible case. I could knock out a dozen such in two hours, yet the four or five of them come up with one or two each per day.]
Re: Re: Re:
When will you be asking for Know Your Meme to be taken down? I mean, that whole site is about memes, which are in and of themselves derivative permutations of existing creative works typically created without the permission of the original artist(s)/copyright holder(s). And I doubt the site has the rights to host all the example images and videos of all those memes, too.
Which meme would you go after first, I wonder? Bowsette? Bongo Cat? Arthur’s Angry Fist? Or would you go right for the throat and take down Loss.jpg first?
Re: Re: Re:2 Re:
Re: Re: Re:3 Re:
Take the RIAA’s site down, then. They use images without permission from the original creator.
Double dare ya!
Re: Re: Re:4 Re:
Re: Re: Re:5 Re:
And so you refuse to take the RIAA to task for copyright infringement. Unfortunate, but unsurprising.
Re: Re: Re:5 Re:
I don’t need to show you.
I just need to accuse.
Isn’t copyright law great?
Re: Re: Re:3 Re:
The “tech” has nothing to do with the idea that KYM is a knowledge repository vis-á-vis memes. It could run on the Wikipedia engine, a custom WordPress installation, or even a CDN like Jekyll—that would change only how the site does what they do.
And my point, if you would be so kind as to stop the willful obtuseness and read what I say here and said up there, is that KYM operates under the principles of Fair Use—so if you want to gut KYM of any hosted images that you merely “suspect” are infringing upon someone else’s copyright, you would end up gutting practically the entire site as a monument to copyright absolutism. What is it about Fair Use that makes you want to gut both those principles and any site that extensively relies on them?
How do you feel, then, about DeviantArt? That site is full of derivative fan art created without the permission of the original IP’s owner(s). Everything from Sonic the Hedgehog to My Little Pony to Death Note to the MCU has fan art on DA; how much of that should be deleted—and how much do we punish the artists who made those fan works—to appease the corporations that own the rights to those franchises?
What about Twitter? Memes get passed around there all the time. How much of a delay should there be on the potential publication of a tweet with an image on it so that Twitter admins can properly track down the source of that image and whether a Twitter user—let’s say that user is you—has the rights to post it? (And judging by your absolutist view that KYM should be taken offline, you seem to despise the idea of Fair Use, so you do not get to rely on a Fair Use defense here.)
Tumblr and YouTube have plenty of parodies of Bongo Cat on the site. How many of those parodies should be deleted, and how should the people who posted them be punished, because all of those parodies technically violate the copyright owned by Bongo Cat’s creator—even if said creator explicitly approves of and encourages those parodies?
I may sound as if I am JAQing off, and in a sense, I am. But each question here gets to a larger point: Copyright absolutism would grind the Internet to a halt. It does not make exceptions for Fair Use, it does not care if the creators approve of parodies and derivative works; it is absolutism because it is absolute—that the law must be applied equally in all situations, with no exceptions. That means parodies would be illegal derivative works…if they were not explicitly protected by the First Amendment. That means works created with Fair Use principles (e.g., video reviews of other works such as movies) would be illegal derivative works…if the courts never recognized those principles and allowed them as a defense.
Your copyright absolutism would see any work that is not 100% the creation of a given artist eliminated from the Internet. Your absolutism would chill the speech of every fan artist in the world—would make them afraid of so much as posting even a scribble that looks like a character from their favorite show or movie, lest they be accused of infringement. Your absolutism would punish people for daring to celebrate that which they love and poking fun at that which they despise.
That kind of thinking does nothing to help anyone but the corporations that control the creation/distribution most of our pop culture. It makes you a puppet of companies like Disney, which would turn your absolutist dream into a reality if it could get away with doing so. I daresay it makes you something of a sociopath, too; only someone without the capacity for empathy would want to make others suffer for a transgression that ultimately harms no one.
Re: Re: Re:4 Re:
Re: Re: Re:5 Re:
And just how many images on your site are similar to other images, and the result of conscious or unconscious copying.
Re: Re: Re:6 Re:
Re: Re: Re:7
If I create a story that has broadly vague similarities to, but does not directly rip off, the Harry Potter franchise, what should be done to me as punishment for the “unconscious copying” of any tropes used by J.K. Rowling? For that matter, what should be done to her for the same kind of “copying” she did when she created Harry Potter—and what should be done to the authors who wrote the books that inspired her for the “unconscious copying” they did from the books that inspired them? I could keep going, but hopefully you see my point. (And if you do not, I will henceforth assume you are a willfully obtuse troll and drop you like a bad Netflix series.)
Re: Re: Re:8 Re:
Re: Re: Re:9
Let me give you a proper example here. I recently watched a piece of media that featured a fictional story about a group of young people learning about magic and getting into various misadventures at a school where young magic users go to learn and improve their magic skills.
Here is the Big Money Question: Am I talking about a Harry Potter film or Little Witch Academia?
My point, which you once again willfully avoided, is that culture builds from itself. Little Witch Academia was likely inspired in part by the success of Harry Potter—as well as other anime shows about young magic users and young women getting into misadventures thanks to supernatural powers. In turn, Harry Potter was inspired in part by various stories that J. K. Rowling had read or heard over her lifetime, and the stories that inspired her were also inspired in a similar way, and so on.
Break stories down to bare-bones components and basic terminology, and lots of stories look similar to one another. I’ll give you other examples:
You want to stand for copyright absolutism and the idea that even “unconscious copying” should be punished. But your idea seems to hinge on the notion that all fictional stories are created in a vacuum within which no other fictional stories exist. Under that logic, no one could ever make an “original” fictional story unless they had never read, heard, or seen any other fictional story in existence—and even that does not account for any coincidental similarities to other existing stories that said “original” story will have. To call such logic “ludicrous” would be an understatement.
So I pose the question to you again: If I create a story that has broadly vague similarities to, but does not directly rip off, the Harry Potter franchise, what should be done to me as punishment for the “unconscious copying” of any tropes used by J.K. Rowling? In other words, how should I be punished for using the generic building blocks of all stories to create my own stories if my stories coincidentally resemble, in broad strokes, a pre-existing story?
Re: Re: Re:10 Re:
Re: Re: Re:11 Re:
You refused to answer the direct questions I posed to you. You continued advocating for the idea that anyone who happens to create a work vaguely similar to/partially inspired by at least one other pre-existing work should be punished for doing so. You said above that physical torture is an acceptable method of dealing with copyright infringers.
I conclude that you are a troll. You can kindly fuck off.
Re: Re: Re:7 Re:
Nice dodge, now answer the question, and for bonus points, give incontrovertible evidence that those images are your works.
Re: Re: Re:8 Re:
Re: Re: Re:9 Re:
Github? You mean that Open Source thing you loathe with every fiber of your being because it’s cheap?
Give me a fucking break.
Re: Re: Re:5
…wow. “Unfair competition” as a defense for copyright absolutism? Now I’ve fuckin’ seen everything. ????
Re: Re: Re:5 Re:
You are saying (again) that your own posts should be taken down?
Because you definitely did not make up all those words, or the symbols in the alphabet (and thus it’s not 100% your creation)
Re: Re: Re: What I Find Particularly Fun ...
So, your answer to copyright infringement is to prevent artists publishing their works unless they can get a publisher to do so for them. That is how to kill the flowering of published works enabled by the Internet.
Re: Re: Re:2
It is also an argument for corporate gatekeepers, which is basically how all media worked before the Internet.
Re: Re: Re: Obvious, Simple
I love how simple answers spring forth. “Obviously Infringing?” People can’t easily spot infringement and computers sure as hell don’t know the difference between fair use and copyright. (Or ownership.)
Your “Obvious” solution is to hold back everything transmitted – everywhere – until it is vetted as OK. By a lawyer.
Hollywood movies do this, they have to be vetted for copyright before they are released. It costs thousands of dollars to do the check.
So, effectively, the internet (And the US postal system) would shut down. You have just solved the problem – no more infringement!
Re: Re: Re: What I Find Particularly Fun ...
Please prove you have a right to use English (because you “have NO intrinsic right to it”)
Thanks
Re: What I Find Particularly Fun ...
Lawrence, going by your version of things wouldn’t that mean that it would be impossible to electronically transmit a NC image in any way because someone at some point is getting paid to host/transfer content?
And no luck using the post office mate – Those stamps ain’t free!
Re: Re: What I Find Particularly Fun ...
That is the same argument used for owners of proprietary content to put pressure on ISPs and the like to police their users, is it not?
In other words, all I’m arguing is, copyright is copyright. Whatever is good enough for one licence is good enough for another.
Re: Re: Re: What I Find Particularly Fun ...
In other words, all I’m arguing is, copyright is copyright.
No, I serious;y don’t understand what you are arguing. You are saying the corporations shouldn’t be able to profit in any way from NC works. (I think.) So therefore they can’t charge anything at any stage, for anything.
I asked how that would affect using the post office to mail a NC work – and you pointed out that ISP’s should police themselves? Not following, sorry.
Re: Re: Re:2 What I Find Particularly Fun ...
Nobody is allowed to profit from NC works (apart from the copyright holder(s), obviously). Therefore, there can be no special exemptions for corporations. “One law for all.”
Not for anything NC. Otherwise, where do you draw the line?
Re: Re: Re:3 What I Find Particularly Fun ...
So for clarification: You are actually saying that an artist could not take their own NC artwork and mail it to a friend, because the post office takes a profit off the service.
Cheers!!
Re: Re: Re:4 because the post office takes a profit off the service.
You would have a point … if the Post Office were making copies of the work.
Re: Re: Re:5 because the post office takes a profit off the service.
Nobody is allowed to profit from NC works (apart from the copyright holder(s), obviously). Therefore, there can be no special exemptions for corporations. “One law for all.”
By your own arguments that’s irrelevant. They may not be making copies, but they are most certainly a) making a profit, and b) doing so in a way that involves a CC-NC work. They are getting paid to transfer a CC-NC work, so unless you care to redefine what seems to be your position of ‘no use by/presence on any platform/company making a profit’ then the post-office would most certainly qualify.
Re: Re: Re:6 What I Find Particularly Fun ...
In that case, just to repeat my own arguments:
Need I remind you about that phrase copyright restrictions again?
Re: Re: Re:7 What I Find Particularly Fun ...
That… doesn’t really answer or address anything.
So just to be clear, is that a ‘yes, the post office would also be prohibited from involving themselves in NY-CC content, because they make a profit’, or ‘no, they would not despite the fact that they make a profit, and here’s why they get a special exception from my interpretation…’?
Re: Re: Re:8 What I Find Particularly Fun ...
*CC-NC
No idea what I was thinking to get the name so wrong the first go around…
Re: Re: Re:5
Your words:
If the Post Office accepts money in exchange for mailing (i.e., distributing) a copy of an artist’s NC work to a friend of theirs, the Post Office profits from the distribution of that work. Under the logic and arguments you have put forth, that commercial profit would make the Post Office legally liable for infringing upon the NC license.
Re: What I Find Particularly Fun ...
I don’t suppose you’re familiar with Section 230 of the CDA? If you are, would you please explain to me how DeviantArt would acquire liability regarding copyrighted work a third party posted, regardless of whether or not DeviantArt made money on it?
Re: Re: What I Find Particularly Fun ...
That’s not relevant. What is relevant is, should they be allowed to distribute stuff that was put under an NC licence by the copyright holder, as part of their business model?
If a private person like you or me is prohibited from copying or distributing such material for profit, why should the big, important corporations get a special dispensation?
Re: Re: Re:
It absolutely is, and I’ll tell you why.
Nobody is saying DeviantArt should be let off the hook for copyright infringement—but the rest of us are essentially saying that DA should not be held legally liable for any infringement that takes place on DA and does not involve a DA employee directly facilitating infringement.
DA admins cannot know if any given image out of the hundreds of hundreds of images uploaded each day is infringing upon someone’s copyright—at least, not with the certainty you seem to think they should have in that regard. They should not be held liable if they discover a case of infringement unless they do nothing about it. And if they do nothing about it, the context of such infringement must be considered (e.g., whether it falls under the principles of fair use) before determining whether DA could be sued.
The same principles that apply to DA in this situation would also apply to YouTube, FurAffinity, any given Mastodon instance, any given Discord server, and all other sites that allow public uploads/submissions, regardless of size. Nobody is asking for DA to be given a pass on this. What we’re asking is why DA should be treated worse than, say, 4chan.
Re: Re: Re:2 What I Find Particularly Fun ...
Good, we agree on that.
So, if copying/distributing NC material for profit would be copyright infringement for a private individual like you or me, shouldn’t it also be copyright infringement for companies like DeviantArt or FedEx?
Re: Re: Re:3 What I Find Particularly Fun ...
Not unless DA employees knew for sure it was infringement and let it go anyway.
Re: Re: Re:4 What I Find Particularly Fun ...
So you agree that commercial services like DeviantArt, YouTube, FedEx etc should not be copying/distributing such material?
Re: Re: Re:5 What I Find Particularly Fun ...
Okay, your position here is getting harder and harder to take seriously if you’re going to set the bar that low, and I’m getting a wicked sense of deja vu regarding the attempts in the past to claim that ‘pirate’ sites were not only engaged in copyright infringement, but commercial copyright infringement, because they dared to run ads to support the sites.
Under the interpretation you seem to be advocating for a CC-NC license would be treated as an instant disqualification from basically any platform that makes money(so pretty much all of them). Far from increasing the spread of such content under said license it would dramatically limit it’s use and availability, as the options available for it’s use would be limited to non-profit platforms run by individuals and/or groups willing to host/copy it on their own dime.
FedEx was not making money from the content, they were making money from the physical act of creating copies of it, just like they would from any other job where they were paid to create copies, that being part of their business.
So, if copying/distributing NC material for profit would be copyright infringement for a private individual like you or me, shouldn’t it also be copyright infringement for companies like DeviantArt or FedEx?
Faulty comparison. The individual in that question would be making money from the work itself. DeviantArt would be a company that happens to make money, providing a platform where the work can be hosted. If DA posted the work themselves and monetized it directly then sure, they’d be on the hook for violating the license, as they would be making money off of it, rather than merely while it’s on their platform.
Re: Re: Re:6 What I Find Particularly Fun ...
Notice how the “NC” part rules out the “makes money” part.
So, yup.
Re: Re: Re:7 What I Find Particularly Fun ...
So you are trying to kill it, good to have that cleared up.
Guess all I can say is hopefully the third court also disagrees with your interpretation, as going with it stands to make any content under that license toxic to pretty much any platform available
To BE copyrighted it MUST have commercial value TO creator.
You can’t give away AND keep control. That’s one line that could be taken with this.
Hey, I’m an "incredible" supporter of it too! — Don’t give it ANY credibility at all (which is what you actually stated by mis-using the word).
Yeah. Like "What the hell?" since it’s attempting to both BE and NOT BE at the same time. It can’t actually be defined because of internal contradiction, besides that ends up "what we want, when we want, unless and until change our minds after someone takes us at our word and uses when we reverse and claim it’s ALL OURS".
It’s not a formula for businesses to rely on. Indeed, they give only token nods to compliance and are mostly too big for the org to sue.
I digress a bit to also point out that CC-by-inherent-contradiction particularly CANNOT work with computer code because code is just an idea NOT the actual instantion, which is all that copyright protects. — Yes, kids, you are FREE to write all you want the adventures of A mouse, but not "Mickey Mouse", just as Disney drew on prior sources, NOT copied even the story, let alone the non-existent artwork of them. (Just to wedge that in, but it’s always apposite.)
It’s BINARY (especially to courts): Creations are EITHER copyrighted, or NOT. Creating more tangles in copyright should be outlawed in itself.
In sum: since "Creative Commons" didn’t define its own notions well enough for a court to figure out, it’s DOOMED. No one should pay attention to it.
Oh. As to instant case: court got it right. Paying for copies by someone else is (legally) same as if copied in-school. Stupid case to bring.
Re:
Well then that’s a problem, seeing as how copies of all kinds of media are “given away” on the Internet (legally or otherwise) all the time. If the Internet facilitates the free(-ish) distribution of media, and such distribution precludes the idea of “controlling distribution”, what does that say about how fucked copyright is thanks to the Internet?
This isn’t just pedantry…this is advanced pedantry!
A creative work that makes use of Fair Use content from other works can technically be both—copyrighted in the sense that it is a wholly new work, not copyrighted in the sense that it is technically an illegal derivative work until the courts say otherwise.
Yeah, tell that to the people who will inevitably push for longer copyright terms before Steamboat Willie enters the public domain.
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I sometimes almost wonder if you pay blue in circus peanuts just to set you up for spikes, like a wordy game of beach volleyball.
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This assumes I have the money to pay for extra circus peanuts in this economy.
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Why pay for what they can get for free?
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You’re still not getting that mansion, chubby.
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And I always thought that investing time and money in creating something was a risk, and if you failed to get your investment back that was your hard luck.
Also, when technology changes so so any business models impacted by that technology, and sometimes that means the business fails, like when the home refrigerator put all the ice sellers out of business. If you can’t make money after a technology revolution in your old business, you need to find a new business or job.
(Hint, there are a lot of creators of digital works making money on the Internet, and most of them do not sell their creations, but rather their ability to create new works.)
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Re: Re: Re:3 Re:
Yeah, no. You can throw away as much money as you please, no law mandates that you get it back.
If such a law existed you would have quoted it.
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Re: Re: Re:5 Re:
when your users choose the product that looks and feels the best
Which doesn’t have to do with the money thrown into it. It’s a potential factor, sure, but not nearly the be all and end all you’d like to believe it is.
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You are ignoring the lessons of history, which is that most creators fail to gain an audience, and so do not get money for all the time that they spent creating the work.
Take the most expensive area of story telling, video, and you will find that it is within the reach of individuals to tell stories using a phone and all free software, along with some spare time and a desire to tell stories, and via the likes of YouTube, they can publish and try to find an audience. Find some people of a like mind, anywhere in the world, and it is possible to co-operate in producing a video.
With the Internet more creators are making some money from their creativity, and some have managed to turn their ability to create into a full time living via patronage. They may not become millionaires, though a rare few have even achieved that, but they can devote all their time to doing what they enjoy.
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millionaires — burnout, slaves, stealing
Ah, so that’s how you plan to get that mansion. By burnout, slaves and stealing. And you wonder why nobody likes you…
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And that is why the two buses you advertised on have done screw all for you.
You’re a narcissistic prick.
Re: Re: Re:9 Re:
And just how are they meant to determine whether a work will gain an audience before it has been created.
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How can we know something is “high quality” before it is even created?
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Trusting to hope is not the same thing as having the omniscient knowledge of how good or bad a given creative work will be before it is created. Besides, you can do your absolute level best and produce a work that is considered high quality by all who experience it, but you can still “lose” (i.e., not make a profit from it). That is not weakness; that is life.
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And the market hasn’t accepted the work.
Looks like you’re not getting that mansion. Welp!
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Some other criteria? Looks like you’re failing that too.
As for how to make copyrighted works profitable, would you like that with or without Hollywood accounting?
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You clearly haven’t been looking enough.
Find me someone who can build a mansion in six months and I’ve got a bridge to sell you.
Re: Re: Re:11 Re:
An excellent reason not to buy your software.
Re: Re: Re:12 Re:
Re: Re: Re:13
You can make anything “useful” first, then concentrate on how to make it “cool” (which is an arbitrary, subjective judgment that changes from person to person and day to day). Hell, something being “useful” can make that thing “cool” by virtue of its usefulness. The two concepts are mutually compatible because of their nature as largely subjective opinions.
Re: Re: Re:
No. No, it is not. If that were true, Black Panther would already be in the public domain because it made its production budget back and then some. Copyright term length is dependent on what the law says it is—and the laws in that particular part of the book are practically governed by corporations that do not want to give anything up to the public domain if even a slim chance to monetize a work that made profits for decades still exists. For example: Michael Jackson is dead, so he can no longer profit from his works, but his estate has no plans to put his music into the public domain any time soon.
A copyright term in the United States last for the lifetime of an author and seventy years after their death. As I pointed out above, Michael Jackson can no longer profit from his works because he is dead—so what makes the people who own the still-existent copyrights on his music deserving of keeping those copyrights and profiting off the work of a dead man?
Copyright is a balance between the rights of an artist to receive compensation for their work and the rights of the general public to eventually distribute and use that work as part of their own derivative works (i.e., make use of public domain works). As proven by the U.S. copyright scheme, an imbalance in favor of the “artist” (read: copyright holder) shortchanges the general public. Copyright terms that last beyond the grave shortchange the general public. To continue with the MJ example: No one who was alive when Michael Jackson was alive/in his prime will ever be able to make a legal derivative work based on his music—which means no remixes, no freely using his songs in a movie or TV show, nothing of that kind. We still have another sixty years to wait until his works go into the public domain. How does that seem even remotely fair to the general public, who are supposed to be the ultimate beneficiaries of copyright?
The government has no business picking “winners” and “losers” in the market; to do so would be to unfairly influence the market in favor of what a given administration wants. The market must act independently of such influence. It must not allow the government to decide one company, above all others, deserves the most success—or the most failure.
Copyright terms already last several decades—and that is after the life of the artist has ended. How much longer do they need to be before you are satisfied that they are long enuogh?
A longer copyright term will not fix that issue because no creative work is guaranteed a return on investment. Longer copyright terms do nothing to improve the quality of a creative work or change the tastes of people who spend money to experience those works. Copyright could last for infinity minus a day, but it won’t make Batman v Superman any better of a film, and it won’t make people pay to watch that movie so the investors can get their money back.
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And just because an industry used to be viable does not mean the government should hamstring whatever is making that industry go the way of the dodo. (“Too big to fail”, my ass.)
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Long periods of time… so you’re saying that corporations have been monitoring for several human lifespans to conclude that corpses have to be paid? As in, longer than these groups have existed?
Yeah, no. The likelier, read actually plausible, explanation is they pulled a number out of their ass and increase said number every so often.
Re: To BE copyrighted it MUST have commercial value TO creator.
As usual, just more lying.
Re: Re: To BE copyrighted it MUST have commercial value TO creator.
To BE copyrighted it MUST have commercial value TO creator._
To be copyrighted, the _only requirement is that it be affixed.
As soon at Mike publishes the comments here, they become copyrighted – even the useless ones!
Posting here grants TD LLC limited ownership of the copyright. Ain’t that swell?
Great Minds...
oxymoronic.
We,ll see how this works out when the new eu copyright laws come into force,
Its likely big tech sites like facebook ,youtube ,
will manage to put in filters ,
Smaller websites might choose to block all user
uploads , and simply allow images or video,s from
big publishers, like drudge, gaurdian uk,daily mail uk, etc if they have a licensing agreement with them.
This should be really easy
‘The people who wrote the license you are using say your interpretation of it is wrong. As such it’s on you for misreading it, and the case is dismissed, with a strong suggestion that perhaps you could ask them for clarification first next time before taking the matter to court.’
Re: This should be really easy
To be fair, that could just mean that if they’d realized the license meant that, they wouldn’t have chosen to offer the content under that license – and they could then argue that they shouldn’t required to adhere to license terms they didn’t intend to offer.
Their only recourse in that case, however, should be to relicense the content (and license any future content) under a different license, which does have the terms and meaning they want – even if that means defining their own license, rather than using an existing defined-for-general-usage license such as the ones Creative Commons provides.
Re: Re: 'YOUR confusion should not be MY problem.'
To be fair, that could just mean that if they’d realized the license meant that, they wouldn’t have chosen to offer the content under that license – and they could then argue that they shouldn’t required to adhere to license terms they didn’t intend to offer.
On the contrary, they most certainly should still be required to adhere to the terms even in that case, as otherwise they’d be re-defining an existing license to their benefit and the detriment of others.
It should not be up to other parties to figure out what they mean when they use a license by a third party, the official definition should be given priority, and if that means that they used the wrong license the fallout from that should land squarely on them.
Your second paragraph covers what I’d consider the ideal solution to this. The case is dropped with a ‘You screwed up and chose the wrong license, that’s on you’, no win on their end. They re-licence under a different license, one with terms they agree to even if they have to spell it out themselves, and any future violations can then be dealt with as they come up.
Re: Re: Re: 'YOUR confusion should not be MY problem.'
In fact, when Under contract law you are most certainly correct. The Education company (Party A) is offering up a contract, the CC licence under which the materials are sold. The educator (Party B) agrees to the licence when they purchase the material. Because Party A defined the contract language (They had the power to alter,change or otherwise define the contract terms prior to offer), when considering ambiguous language, the court must read the contract in favor of Party B, to balance the inequity of power in the contract formation step.
Re: This should be really easy?
They used the term “non-commercial”, knowing full well it is a legal term which is subject to interpretation by the courts. If they really meant “non-commercial, except that big intermediaries, but not small ones, are allowed to charge for copying or distributing it”, then they should have said so explicitly. If they don’t like the way the courts are likely to interpret the term, then they shouldn’t have used it.
Re: Re: This should be really easy?
There is a difference between paying for a service like copying where the license allows creation of copies, and making, or having made, copies that you sell.
Re: Re: Re: where the license allows creation of copies
But not for profit–that’s what “non-commercial” means. And what is a commercial photocopying operation, like FedEx is running here, if not making copies for profit?
Re: Re: Re:2 where the license allows creation of copies
So are the paper suppliers also liable for copyright infringement, along with printer suppliers, because they made a profit on the paper ink and printers used. There is a huge difference between making a profit supplying goods and services used in making copies, and making a profit by selling copies.
Re: Re: Re:3 So are the paper suppliers also liable for copyright infring
Are they the ones copying/distributing the copyrighted material?
Re: Re: Re:4 So are the paper suppliers also liable for copyright infring
IS Fedex when they make copies for other people? Need they be aware of what license applies to things that they copying for other people?
What if they rented time on their copying machine for a customer to stand their and make their own copies? They make the same profit for the use of their machines.
Re: Re: Re:5 IS Fedex when they make copies for other people?
Yes.
Re: Re: Re:2 where the license allows creation of copies
Are you talking about FedEx making a profit from making the copies? Because that’s the default. If you want them to make a copy of something they’re going to charge you for it, and as a business they’re going to charge you enough to cover costs, make it worth their while, and to prevent a flood of people going to them to make copies that cost FedEx time and resources but doesn’t net them anything.
The idea that a company like FedEx would have to eat the costs of making copies for the non-commercial limits to not be violated strikes me as an extreme reading of the license, and one that apparently the people who wrote it also disagree with. Under that interpretation if someone wanted to make use of non-commercial licensed content in a way that required numerous copies they be required to make all of those copies themself, or hope that they knew someone who had access to professional machinery who was fine letting them use it for free/at cost, which would severely hamstring the use of said content in any large scale.
Re: Re: Re:3 This should be really easy?
Disagree or not, they used a legal term, they have to abide by the courts’ interpretation of that term.
Yup.
Re: Re: Re:4
Under your interpretations and logic, should the companies that make the equipment I use to create my illicit copies be liable for my using that equipment to create illicit copies? After all, if FedEx should be dinged for using equipment to help facilitate copyright infringement, why should Brother get off the hook for selling FedEx the printers and copiers used to create the illicit copies in the first place?
Re: Re: Re:5 This should be really easy?
https://en.wikipedia.org/wiki/Secondary_liability
Re: Re: Re:6
Do you really, truly believe that if I use a Brother printer to print out a bunch of ebooks I illicitly downloaded from the Internet, Brother should be held liable for what I did with that printer—even though it had no idea what I was doing and could not know beforehand what I would do?
Re: Re: Re:4 This should be really easy?
Disagree or not, they used a legal term, they have to abide by the courts’ interpretation of that term.
And so far two courts have told them, ‘Uhh no, that’s not how it works.’
Yup.
Yeah, completely impossible to take your argument serious at this point unless you are trying to kill off CC-NC, in which case your argument/interpretation, if the third time turns out to be the charm, would certainly do a great job at that.
Re: Re: Re:5 This should be really easy?
Just a reminder that “them” is the Creative Commons organization. (That is whom I was referring to, after all.)
So what you are saying is that my point has been backed up by the courts. Twice.
Re: Re: Re:6 This should be really easy?
That’s not only wrong it’s dead backwards, to the point that I’m left wondering if you read the article at all. The court has rejected your/Great Mind’s interpretation of the CC-NC license twice, not affirmed it.
In the FedEx case, both the district court and the 2nd Circuit appeals court rejected Great Minds’ interpretation and tossed out the lawsuit saying that the license in question did not limit FedEx from charging for copies. Great Minds also filed a nearly identical case against Office Depot in California, which also was dismissed, despite Great Minds claiming that this case is different than the FedEx one (specifically, it argued that Office Depot employees were "actively soliciting" schools to copy Great Minds’ works). The court didn’t buy it.
In fact it looks like their/your argument has been rejected three times, not two.
Re: Re: Re:7 This should be really easy?
So FedEx gets a special dispensation for doing something that you or I would not be permitted to do, namely make money from copying CC-NC material?
What is the legal basis for that, exactly?
Re: Re: Re:8 This should be really easy?
No, they don’t, you could do the exact same thing they are doing(charging for making copies for someone else rather than eating the costs) and you’d be in the clear as affirmed by three courts so far.
As such the ‘legal basis for that’ would be ‘because that is allowed under the license, as affirmed by three courts so far and by the people who wrote the license.‘
(Now whether you’d be able to afford to defend yourself if you were sued in that situation by someone with your/Great Minds’ interpretation of the licence is another matter entirely, but that’s a separate issue from whether or not you’d have the legal right to do so.)
Re: Re: Re:9 This should be really easy?
Or maybe not. Quoting from Creative Commons’ own amicus brief:
It looks like they are trying to draw a distinction between the party instigating the copying, and the party whose business it is to make copies, saying that the NC restriction applies to the former, not to the latter. So it seems your interpretation is wrong.
Re: Re: Re:10 This should be really easy?
That looks to be roughly ‘If you’re using the work in a non-commercial fashion you are allowed to make use of a party engaged in commercial actions such as providing copying services in order to facilitate that.’
The NC restriction applies to the one directly using the content under that licence, it does not apply to ones who are offering a service(in this case creating copies) simply because it involves that content.
Or put another way, you are allowed to make copies of CC-NC content and charge for the act of making those copies. You are not allowed to make copies for the express purpose of selling those copies.
Exactly what part of that conflicts with my interpretation, and for clarity what do you think my interpretation is such that you’d say that?
Re: Re: Re:11 This should be really easy?
The trouble is, the NC licence is the only permission they have to use, copy and distribute the content. So if the service doing the copying (or, say, providing on-demand distribution of copies, like DeviantArt I mentioned earlier) is not covered by that licence, then what permission do they have to have and make those copies?
Isn’t the whole point of copyright that if you don’t have permission from the copyright holder to have and make copies, then you can’t do so?
Re: Re: Re:12 This should be really easy?
The one using the content is covered/limited by the license, the third party they are using to make copies/spread that content are involved only peripherally, and as such not bound, as the original user is essentially just using them to accomplish their goal(in this case, making lots of copies).
I’ll try it this way. Imagine if you will the following scenarios:
1a) Person A wants to make a copy of a CC-NC work. They don’t need a high quality copy so they print it on their computer, with their printer.
1b) Person A wants to make a copy of a CC-NC work. They are busy at the time however and ask a friend(Person B) who’s over at the time to print it out for them, using A’s printer.
2a) Person A wants to make a copy of a CC-NC work. The either don’t have a printer, it’s currently broken/out of ink, or it’s not high quality enough for what they want. In response they go to Person B, who has a high quality printer, and use their computer/printer, free of charge.
2b) Person A wants to make a copy of a CC-NC work. The either don’t have a printer, it’s currently broken/out of ink, or it’s not high quality enough for what they want. As they are in a rush they send the work via email to B, asking them to make a copy on B’s computer/printer which they can pick up later. This is done free of charge.
3a) Person A wants to make a copy of a CC-NC work. The either don’t have a printer, it’s currently broken/out of ink, or it’s not high quality enough for what they want. In response they go to Person B, who has a high quality printer, and use their computer/printer. Not being quite so generous as to allow A to use their expensive printer ink free of charge(perhaps A wants to make a LOT of copies), B charges them an amount estimated to cover the paper/ink they use.
3b) Person A wants to make a copy of a CC-NC work. The either don’t have a printer, it’s currently broken/out of ink, or it’s not high quality enough for what they want. As they are in a rush they send the work via email to B, asking them to make a copy on B’s computer/printer which they can pick up later. Not being quite so generous as to allow A to use their expensive printer ink free of charge(perhaps A wants to make a LOT of copies), B charges them an amount estimated to cover the paper/ink they use.
4a) Person A wants to make a copy of a CC-NC work. The either don’t have a printer, it’s currently broken/out of ink, or it’s not high quality enough for what they want. They know that Person B, who either runs a business that offers copying services or is an employee there has a high quality printer at their disposal, albeit one where use is charged for(that is part of their business after all), and so they go to B, use their printer, and pay the required amount.
4b) Person A wants to make a copy of a CC-NC work. The either don’t have a printer, it’s currently broken/out of ink, or it’s not high quality enough for what they want. They know that Person B, who either runs a business that offers copying services or is an employee there has a high quality printer at their disposal, albeit one where use is charge for(that is part of their business after all). Use of the printer is limited to the employees only however, and as such Person A is required to let B do the copying for them, which they do and after which they pay for it.
A, being the ‘primary’ user of the CC-NC work is always bound by the CC-NC licence, this is a given. At what point would you say that B is bound by the license in the above examples, and why?
Re: Re: Re:10 This should be really easy?
That sounds to me like exactly what his interpretation is. I’m not sure how you see that as supporting the position you seem to have been arguing.
copying vs theft = people with common sense vs delusional copyright apologists
The semantics are whats important!
Office depot has the photocopier open for customer use? fine.. Office depot employee helps some customer use it when they are having trouble? Infringement!