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.
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?