Preface: You will please notice that this is neither a “the NC clause is evil” post nor an “MIT OCW is evil” post. If you were hoping for either of those, then ‘these aren’t the droids you’re looking for – you can go about your business; move along.’
In doing some research for a book chapter I’m writing, I came across the following oddity: CC and MIT OCW have diametrically opposed interpretations of the meaning of the NC clause of CC’s own licenses.
Creative Commons’ own Proposed Best Practice Guidelines To Clarify The Meaning Of “Noncommercial” In The Creative Commons Licenses begins with the following language:
A. Nature of the User:
(1) Is the person making use of an NC-licensed work an â€œallowable NC userâ€? under the noncommercial license condition? Allowable NC users are:
(a) an Individual (b) a Nonprofit educational institution/library, (c) a Nonprofit organization as defined under US or equivalent law , (together with (1) and (2) â€œallowable NC usersâ€?) (d) A commercial copy shop, ISP, search engine, content aggregator, blog aggregator site or similar service provider who, in the course of providing a service at the direction of the allowable NC user, may exercise a right licensed under the Creative Commons license.
(i) No. License violation â€“ this is not a noncommercial use. (ii) Yes. Continue to Question B.
Compare that language with this, from the MIT Interpretation of “Non-commercial”:
2. Determination of commercial vs. non-commercial purpose is based on the use, not the user. Materials may be used by individuals, institutions, governments, corporations, or other business whether for-profit or non-profit so long as the use itself is not a commercialization of the materials or a use that is directly intended to generate sales or profit.
Example: A corporation may use OCW materials for internal professional development and training purposes.
Now, I might be wrong, but this seems like an instance of p = ~p. The CC approach to defining NC is a workflow laid out as a series of steps; the MIT approach completely rejects the very first step in the CC decision making process. Isn’t this problematic?
If a user who was thoroughly familiar with CC licenses came to MIT OCW and saw “By-NC-SA” at the bottom of the page, they would assume a certain set of rights had been granted when MIT OCW is really trying to grant a different set. The big money question, then, is: if this user engaged in a use MIT OCW felt was in violation of the license and failed to “cease and desist” when asked, whose interpretation of the Creative Commons license would the courts apply?