Nc

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 this response I sample from Stephen’s latest contribution to our conversation about the noncommercial clause of CC licenses, Open Content, Enclosure and Conversion, simply because a complete line-by-line response would take too long. I will rely on Stephen to call me out if I have sampled in a manner that misrepresents him, which I have made an honest effort not to do. I use Stephen’s subheadings throughout to break up my response and help the reader find the corresponding material in Stephen’s original post. ...

A short version, a long version, and a surprise. The short version: who has precedence, the CC NC clause or the First Sale doctrine? The long version: First, a little background on the First Sale doctrine from Wikipedia (normal caveats apply): The first-sale doctrine is a limitation on copyright that was recognized by the U.S. Supreme Court in 1908 and subsequently codified in the Copyright Act of 1976, 17 U.S.C. § 109. The doctrine allows the purchaser to transfer (i.e., sell or give away) a particular lawfully made copy of the copyrighted work without permission once it has been obtained. That means that copyright holder’s rights to control the change of ownership of a particular copy end once that copy is sold, as long as no additional copies are made. This doctrine is also referred to as the “first sale rule” or “exhaustion rule”… In 1909 the codification originally applied to copies that had been sold (hence the “first sale doctrine”), but in the 1976 Act it was made to apply to any “owner” of a lawfully made copy or phonorecord (recorded music) regardless of whether it was first sold. So, for example, if the copyright owner licenses someone to make a copy (such as by downloading), then that copy (meaning the tangible medium of expression onto which it was copied under license, be it a hard drive or removable storage medium) may lawfully be sold, lent, traded, or given away. ...

In his commentary on CC’s new report on the state of OER licensing, Stephen finds an opportunity to express his continuing support for the noncommercial clause: In the full report you find their recommendations, including machine readability of license terms, license standardization and license compatibility (which is once again essentially the recommendation that licensors drop the ’non-commercial’ clause (p. 16). This gets tiresome. Proponents can recommend this until they’re blue in the face. They can disguise this ongoing campaign under the heading of ‘research studies’. But the fact remains, especially outside purely capitalist economies, people have an aversion to commercial use…. ...

There have been a number of comments on my recent post about license compatibility problems. I want to address two specific, related comments… ...

Preparing for my fall course “Introduction to Open Education” (more about that coming soon in another post), I’ve been thinking hard about licensing and the “pro-freedom” camp. Wikeducator and FreedomDefined.org have several interesting pieces, including WikiEducator’s Free Content Defined and FreedomDefined.org’s The Case for Free Use: Reasons Not to Use a Creative Commons -NC License. I found myself in complete agreement with statements such as, “Sadly, much of the world’s knowledge is locked behind copyright and consequently access to this knowledge is restricted, especially for the majority of citizens in the developing world… The definition of Free Cultural works is based on the premise that the easier it is to re-use and derive works, the richer our cultures become.” But then I was particularly struck by the section on “Permissible Restrictions” from the Wikieducator tutorial… ...

Reading Wayne Macintosh’s feature on WikiEducator got me thinking again about some people’s dissatisfaction with those projects that use the NC clause. (I’m not a fan of the NC clause, but I have never projected these negative feelings onto institutions or faculty who adopt the clause.) So I started asking myself - why do universities adopt the NC clause for their OER projects in the first place? And if we wish they wouldn’t use the NC clause, what can we do about it? ...