Creative Commons vs MIT OCW: Interpreting the Noncommercial Clause

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 “allowable NC user� 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 [1], (together with (1) and (2) “allowable NC users�) (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 – 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?

Of course, MIT OCW has the right to offer it’s users whatever use rights they see fit. And conceptually I prefer MIT OCW’s “nature of the use” definition. [But when working on the predestined-to-failure CC Education license we tried to take this same tack (in fact, this would have been the key differentiator of CC.EDU from the other licenses) but the CC legal advisors “recommended strongly” against, steering us back toward a “nature of the user” approach.] But when Creative Commons writes a license option and says “this is what it means,” can MIT OCW or USU OCW or anyone else adopt that license option, put the icon on every page, and yet try to redefine the option on a “Terms of Use” page?

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?