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?

4 thoughts on “Creative Commons vs MIT OCW: Interpreting the Noncommercial Clause”

  1. I think the answer to your quandary lies in the title of the CC excerpt, “proposed best practices.” The CC guidelines are not part of the official license, and so wouldn’t apply in a court case. The very nature of “best practices” implies it is up to the practitioner to further define non-commercial, as we’ve done based on five years of practice in sharing our materials.

    Our experience obviously lead us down a different path, but so far all the supposed hazards have been hypothetical, and in practice we’ve found most users are quite diligent and conscientious about making sure their uses of our materials are appropriate. Of the 150,000 or so visitors who come to our site each month, maybe one or two will e-mail to ask an appropriate use question. I’m sure there are more who don’t ask, and some who knowingly use the materials inappropriately (which we do address when we discover), but on the whole, the license seems to do exactly what we’d hoped it would

  2. Quandary! I have found myself in that situation several times – I have found good material on the web that I would like to share with my students. However, the material was published under the NC restriction and I teach at a for-profit college, but I would use the material for educational purposes and I wouldn’t charge my students for it. What do I do? Up until now I have refrained from using NC material. David and Steve – can I now assume using material from MIT OCW is OK, but not material from other sites with the same NC license???

  3. I completely agree with Steve: “best practices” are not mandatory. And although it makes perfect sense that the Creative Commons “best practices” prefer to approach the issue with prudence, on “the safe side”, authors may have (and establish) their own understanding of what is commercial. In fact, each author might have a different meaning for what is commercial and what is not, depending on his work and on the kind of exploitation he has envisioned for it. Of course, this may not do too much good in terms of compatibility among licenses (even among one same license), but this is usually the problem with standard licensing terms… Failing specific language set by the author, the “best practices” may help interpret the meaning of the terms of the license, but when the author makes clear what he means by commercial, his will should prevail over the “best practices”.
    Maybe the licenses will have to afford more options for the author to “fine-tune” the meaning of non-commercial (click on several options), so that the meaning is embeded in the license (instead of as a best practice)… But once again, the more difficult it would become in terms of compatibility, right? I guess there’s no easy way out!

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