Noncommercial, Transaction Costs, and Sustainability

I recently received an email from Hal Abelson (you never know who’s reading your blog, I guess) in response to my post about MIT and CC’s differing interpretations of the NC clause. He reiterated that the Proposed Best Practice Guidelines To Clarify The Meaning Of “Noncommercialâ€? are only a draft and do not represent CC’s interpretation of the NC clause, and assured me that MIT and CC do not take different stances on the interpretation. Hal can speak from a position of authority since he is both the Founding Director of Creative Commons and a member of the MIT faculty and the MIT OCW advisory board.

This is excellent news to hear, and I hope there is some public resolution soon. Perhaps CC’s draft best practice guidelines can be rewritten, or at least taken down for the time being. This has got me thinking about the NC clause again, and I want to spill a few thoughts here…

NC, Transaction Costs, and Friction

In his book the Wealth of Networks, Benkler characterizes the Creative Commons project as follows:

The Creative Commons is an initiative to develop a series of licenses that allow individuals who create information, knowledge, and culture to attach simple licenses that define what others may, or may not, do with their work. The innovation represented by these licenses relative to the background copyright system is that they make it trivial for people to give others permission to use their creations.

As Yochai says, the innovation is supposed to be that the licenses make it trivial for you to define what others may, or may not, do with a work. Of course, the case with the NC-CC clause is that it does not make it trivial to define what others may or may not do. It only makes it trivial to appear that you are doing so. Adam Bosworth recounted asking Lessig about…

the provision in many Creative Commons licenses that indicates content may not be used for ‘Commercial Use’. I asked, what is Commercial Use? Does reposting to a blog that has ads violate the copyright license? Larry Lessig’s answer was basically, “I don’t know”.

If even Lessig does not know what noncommercial is, how is your run-of-the-mill user supposed to understand what s/he may or may not do with a work? One perfectly acceptable answer is, of course, that they could read the full Terms of Use on the site with the CC licensed content. (MIT OCW has an excellent one in which it makes its interpretation of NC quite clear.) But notice what this answer to the “how do I know?” question does… The lack of a clear, official definition of NC transports us backwards in time to a day when site owners were required to write their own terms of use, and when site users were required to read them in detail. Surely this isn’t innovation.

I was unsurprised by, and very troubled by, a comment made in response to my recent post on this subject:

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???

It is true that 99% of the people in the world are not paying any attention to the way content is licensed and are simply doing whatever they want with it anyway. However, those few who are paying attention and are trying to abide by the terms are having a time of it. Can a By-NC-SA license in the footer of one site grant one set of rights while the same By-NC-SA license in the footer of the next site grant a different set? This is essentially the question of the comment above. Currently the answer appears to be “yes,” which is a nightmare for the users that are trying to pay attention.

Even more troubling is Bosworth’s sentiment, “Because these [NC definition] questions cannot even be answered by Lessig, I would never ever re-use content that is tagged ‘NonCommercial’.” It is a perfectly understandable sentiment for Google’s Vice President of Engineering. This may be why, he says, “people are not re-using creative commons content.”

The NC clause is suppose to remove friction from the system, but does not. It only (rather deviously) appears to do so. Until the definition is clarified we are no better off than we were before – we all still have to write our own terms of use. And our users are even worse off than before – what appears to be a coherent, simple message conveyed by a small green icon at the bottom of a million web sites is really either pages of legal explanation granting differing rights on each site or the worst kind of vagueness in the cases where no extra legal explanation is given.

NC, Markets, and Sustainability

In explaining the transaction costs and efficiencies of market-based and social exchange systems, Benkler again describes the necessity for crisp delineation, precision, and formality in market systems, and the greater tolerance of social exchange systems to fuzziness:

A market transaction, in order to be efficient, must be clearly demarcated as to what it includes, so that it can be priced efficiently. That price must then be paid in equally crisply delineated currency…. The crispness is a functional requirement of the price system. It derives from the precision and formality of the medium of exchange – currency – and the ambition to provide refined representations of the comparative value of marginal decisions through denomination in an exchange medium that represents these incremental value differences…

Social exchange, on the other hand, does not require the same degree of crispness at the margin… social exchange certainly occurs as a fuzzier medium.

Translation for our present purpose: Until the behaviors which the NC clause allows and forbids are more clearly articulated, the remixing and reuse of NC-licensed content will be confined to the world of social exchange; i.e., it will never mature to take on market-like sustainability and scalability characteristics. What legally liable entity would enter into a license agreement whose own authors couldn’t explain its terms?

Theoretically, all open educational resource initiatives, including the OCWs, have sustainability as a secondary goal (the primary goal, of course, being to better support learning around the world). It’s hard enough to try to build a “sustainable business model” on the practice of giving things away… As with the NC definition-related problems that led to the removal of the CC licenses from MITE’s Hippocampus last November, until the definition of the NC clause is officially clarified by CC perhaps projects that have “business model”-style sustainability as a requirement need to forego CC altogether.

Concluding Thoughts

Please note that I have not joined that group to whom I lovingly refer in an upcoming book chapter as the “Libre License Jihad.” Nowhere have I said that the NC clause is evil, or that it should be done away with. I am by no means on a mission to destroy the NC clause. The NC clause is terribly important and I believe we desperately need it. However, it is in desperate need of clarification before it can become the innovation it was intended to be. Please, someone in a position to do so, fix NC.

3 thoughts on “Noncommercial, Transaction Costs, and Sustainability”

  1. David,
    Thanks for answering my question. I take it that I have to live with the nightmare as long as I pay attention and bother trying to adhere to licenses;-) Sometime ago I read “somewhere” that NC was unnecessary since it could be replaced by using Attribution and Share-Alike. I forgot where and am sorry for not giving proper attribution to the right person, but my question is – could it? I.e. could BY SA replace NC?

  2. I had a look at the Creative Commons discussion draft. What they are doing is presenting a decision-tree type approach. “Is it x? If yes, it is commercial. If not, is it y? If yes, it is commercial. If not,…”

    This is one way to make such a determination. But there are other ways we could do the same thing (there is an interesting parallel between ways of making a decision and ways of defining a game – see – this parallel is also reflected in the differences of types of artificial intelligence – the ‘branching story’ reminds one of Newell and Simon’s General Problem Solver.)

    The point is that the branching story – and indeed most any other formal process – will always leave gray areas. The attempt to define ‘noncommercial’ more precisely leads us down a slippery slope based on the assumption that it can be done.

    My own feeling is this: if you have to ask whether or not your use is commercial, it’s commercial. The very precise definitions are being used to weasel the maximum advantage out of the definition of ‘noncommercial’ rather than any genuine desire to respect the intent. The only people who are actually interested in the definition of ‘noncommercial’ are those commercial users hoping to find a loophole. Which is exactly what the precise definition of ‘noncommercial’ allows them.

    My own view is that the test for ‘noncommercial’ is very simple: “Is it being used to make money? yes – it’s commercial. No – it’s not.” Any further attempt at a definition constitutes an attempt by a person using it to make money to make it appear as though they’re not.

    Take, for example, the question about commercial or noncommercial users raised earlier this week. The presumption here is that there could be a noncommercial *use* undertaken by some commercial user that would allow the use to be characterized as noncommercial.

    This is a sleight of hand. By definition, every activity undertaken by a commercial entity is commercial. Commercial entities exist solely for the purpose of making money. They may be engaged in acts that benefit the community, but that it only because benefiting the community is a reliable way of making money.

    You may say that the commercial entity may be engaging in genuine charity work. Certainly, corporations have been successful in designating some of their activities as charitable activities. The ‘Ronald McDonald House’ springs to mind. So suppose McDonald’s uses my image to promote Ronald McDonald House. Is the use noncommercial?

    When McDonald’s may be able to fool the legal system but they’re not fooling me. The McDonald’s name and logo are plastered all over that charitable entity. It constitutes a part of McDonald’s continuing attempts to brand themselves as a children’s product (a branding I find morally reprehensible, but I digress). It is a commercial activity, as is the vast bulk of corporate ‘charitable’ activities.

    The point here is, if you allow this camel’s nose into the tent, you are not in a position where it will be necessary to look at all sorts of different types of uses in an attempt to determine whether or not they are commercial. Because the primary determinant, whether or not it is used to make money, has been taken off the table.

    My feeling is that the mechanism of determination whether something is commercial or noncommercial should not cater to this misuse. If there is any sort of question as to whether the use is commercial, the presumption should be that it is commercial. This places the onus on the user to query whether the use is allowed.

    Yes, I know thta the purpose of Creative Commons is to eliminate the need for such queries. And Creative Commons does have a mechanism for eliminating such queries: the By license. You do not *have* to use the noncommercial clause. The fact that you *are* using it suggests that commercial use is a matter of concern to you. Which means you are *exactly* the sort of person who will be off-put by some company walking a legal tightrope to have their commercial use declared ‘noncommercial’.

    ‘Commercial use’ should be defined as an ‘I know it when I see it’ phenomenon. Whether a use is commercial or noncommercial is a matter of *recognition* rather than rule or legislation. Defining it this way does not allow the ethically dubious to sneak through a loophole to defeat the intent of the clause. It opens the way for obviously legitimate noncommercial uses, such as positing on a personal website, while closing marginal commercial uses, like posting on a fake personal website.

    There is a tendency, especially on the part of lawyers, to try to define the minutiae of the law. This tendency should be resisted. Leave the gray area reasonably large, and hence, the scope for human judgment and recognition equally large.

  3. Hi,

    I would like to understand the definition of Non-Commercial contracts and Commercial Contracts, in accordance to CBOT (Chicago Board of Trade). Could you able to help me.

    With Regards,
    Subrata Dutta

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