NC Survey Results

Creative Commons may not have set out to authoritatively define Noncommercial Use with their recent study, whose results were announced today, but I wonder how people will to interpret their findings… There appears to be broad agreement among survey respondents in some areas (as I highlight below). Unfortunately, the report also reveals that its respondents have very little understanding of copyright law. So what the report provides us is, in effect, a surprisingly coherent statement by a large group of people who have no idea what they’re talking about. Hundreds of thousands of people agree that it’s ok to download mp3s, but a single judge disagrees with them (authoritatively) all the time. Unfortunately, the consensus in this report is not particularly instructive. Rather, the consensus may be misleading if you allow it to convince you that it means something. Perhaps a more productive use of the study’s grant money would have been supporting the argument of cases that would establish real precedent.

In the empirical portion of the study, content creators and content users were asked to judge a number of specific use cases (i.e., determine whether or not the uses they describe are commercial) in the following five categories:

  • The user/you would make money from the use of the work
  • The work would be used online and advertisements would appear around it
  • The work would be used on behalf of an organization
  • The work would be used for a charitable purpose/social good
  • Your work would be used by/you would use the work as an individual

The CC report is 255 pages long. Allow me to summarize (realizing that others will summarize in different manners). Simplifying a bit (at some cost but with some value), when the majority (more than 50%) of respondents categorized a specific use case as “commercial,” I have categorized that use case as commercial in the chart below. This chart reformats data presented in Appendix 5.6 – 62 (page 198 of the pdf), which I would encourage you to view for yourself.

CC NC Survey Results

According to the majority of the community:

  • All uses where money is made are commercial.
  • All uses where advertisements are involved are commercial.
  • The overwhelming majority of uses made by or on behalf of an organization are commercial (8/9).
  • The majority of uses made for a charitable purpose or a social good are commercial (7/11).
  • Less than half of uses made by an individual are commercial (3/8).

Clearly, the community defines commercial use by the nature of the use and not by the nature of the user. According to the community, non-profits, charitable organizations, and individuals are all capable of making commercial uses. At a high level, the community has sided with MIT OCW’s view of noncommercial and rejected the original CC draft definition (which was based on the nature of the user).

Definition by use rather than by user significantly complicates interpretation. For example, I have a friend who believes that all individual uses are noncommercial and all institutional uses are commercial. It would have been wonderfully simple if the community had agreed with him. Instead, we have the community telling us that the majority of these specific use cases involving charitable uses are commercial and almost half of individual use cases are commercial as well. We also have MIT OCW completely disagreeing with the community in the case of organizations, telling us it’s perfectly fine to use their NC material inside an organization, which is just another elephant-sized indicator of the complete mess we find ourselves in with regard to this license term.

Please keep in mind that this survey presents the legal opinions of people with very little understanding of the law. Granted, they are the people ostensibly following the law, but so are the mp3 downloaders, and video remixers, and others.

What are we supposed to gain from reading this survey? I really can’t say. So why did I spend all this time writing this blog post?

Comments on this entry are closed.

  • Steven Egan September 15, 2009, 11:33 am

    I think you did it to ask a question and garner feedback, so here’s mine.

    Personally I think that the big precedent to consider is personal copies. It’s technically fine to make a personal back-up copy of media such as DVDs and even to let friends borrow them. From what I remember you can also freely give away those copies, so long as you aren’t mass producing them or getting paid for the copies. In essence, personal use is fine, and you can deal with your property as your property. Money transactions are then limited to “official” copies.

    A group of bright people, with similar tastes that live near each other, then build up a library of media where one person owns the media they bought and those who use it are recorded as using them. No money is exchanged, just people allowing each other to barrow in a logical and controlled manner.

    Anyways … the other concerns are enforceability, sustainability and flexibility. The music industry tactics are merely scare tactics, not enforcing anything. A lot of those use, and especially those abusing, copyrights are not using sustainable business models. Which gets me to the flexibility of groups doing things like localization of illegal copies in regions where there is little to no support from the main company. If nothing else there should be classifications of derivative works.

    Also, as a side note, there needs to be a good tuning of the copyright issuing processes. I’ve heard of attempts to copyright things that should never be possible to copyright. One was speech bubbles in a 3d MMO. Speech bubbles are in the public domain, and changing medium shouldn’t change that. It would be different if it was a stylized form of speech bubble, but that wasn’t the case.

  • Tom Clark September 16, 2009, 8:40 pm

    The problem with NC, in my eyes, is that one could argue just about any which way in which a use case is commercial. Am I allowed to play an NC song in a bar for the enjoyment of my patrons, even though I am selling them another unrelated product? If I distribute NC media through a website on a page without advertising, and another unrelated page on the site has advertising, what then?

    It’s as if NC means “only for personal use, alone in a dark room.” It makes it very hard for those individuals or institutions who are legitimately following the rules to use NC content, whereas the authors have little recourse against those who ignore the rules.

    For example, if I sell posters of Mickey Mouse without DIsney’s approval, I’m sure most reasonable people would say I’m breaking copyright/trademark/etc. But if the author of a song doesn’t want me playing it in a bar in the above example, that’s harder to show why it’s a form of commercialization of the song. Is that burden on the author?

    Also, if there is a court precedent that says highly indirect commercialization like the aforementioned example is considered non-commercial, will all these survey respondents rise up in anger and leave the CC license for a more detailed NC license? I think not.