(Warning: Long nerdy post. The CrabBot 2000 estimates it will be of interest to 6.4% of crabwalk.com readers.)

While I don’t share the information-wants-to-be-free technoutopianism of some of its proponents, I like Creative Commons. The idea is to create an easy way for people to declare their creative work (to varying degrees) part of the public domain, so that it can be reused or manipulated by others. It’s a fine idea — making it clear when and how it’s okay to use someone else’s work, and when and how it’s not.

But I’ve got a quibble. Some CC-licensed works (let’s talk about photos for now) have a non-commercial license. That means, according to CC, “[y]ou may not use this work for commercial purposes.”

But it doesn’t define what “commercial purposes” are.

Someone named Aaron Landry is concerned that a photo he took — that was licensed as “non-commercial” via Creative Commons — was used to illustrate a post at the highly popular blog Boing Boing. Aaron says that, because Boing Boing sells ad space and makes money, using his photo was a violation of his license.

But it depends on how you define “commercial purposes.”

I ran into this confusion last year, when I was still blogging for my newspaper. I wanted to be able to use CC-licensed photos to illustrate some of my blog posts, but I didn’t know if that counted as commercial use. So I emailed CC to ask what “commercial” meant. The response I got, unfortunately, was something along the lines of: “We can’t tell you whether that’s commercial use or not. We’re not in the business of approving or disapproving particular behaviors.” (The actual emails are on a computer many miles away, alas, so I can’t quote them.)

Obviously, selling a CC-licensed photo would qualify as a commercial use. And putting it on, say, the packaging of a good you’re selling would probably qualify too. Or using it in an ad for one of your products.

But does using it on a blog owned by a for-profit corporation automatically make it “commercial,” even if the use itself isn’t going to make any money? Or is it the money-making nature of the blog itself that makes it “commercial”? Is it the presence of advertising? If so, is every random blog with Google Ads or an Amazon affiliate link a “commercial purpose”?

The CC license’s legal language only refers to use that is “primarily intended for or directed toward commercial advantage or private monetary compensation.” There’s obviously no private monetary compensation when I post a photo on a newspaper blog — no money is exchanged for the photo. Is using the photo giving the newspaper any “commercial advantage”? That seems unlikely to me — no one is going to buy or click on an ad on the page because the photo is there — but maybe in a theoretical sense.

Maybe the answers seem obvious to everyone else, but those of us coming from a news background are used to the idea that commercial enterprises can sometimes use copyrighted material under “fair use” if it’s part of our newsgathering. Example: Imagine Joe Shooter has taken a beautiful photo of his girlfriend. If my newspaper wanted to use his photo, say, in a marketing campaign, it would have to license the rights to the photo from Joe. But if Joe is murdered by his girlfriend because she didn’t like the photo, we could run the photo in the newspaper — because it has become newsworthy in and of itself and would fall under “fair use.” That’s even though my newspaper makes money selling the news.

Fair-use rules require an evaluation of “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” But federal courts in recent years have tended toward de-emphasizing the commercial question. Take this copyright case from 1994, in which a district court ruled that one of Texaco’s research scientists, a man named Donald Chickering, had improperly photocopied articles he was interested in in a scientific publication named The Journal of Catalysis (to which Texaco had a paid subscription). Part of the district court’s reasoning had been that Texaco was a for-profit company and that, therefore, the photocopying was de facto commercial. But the Second Circuit, on appeal, disagreed (starting around paragraph 35):

We generally agree with Texaco’s contention that the District Court placed undue emphasis on the fact that Texaco is a for-profit corporation conducting research primarily for commercial gain. Since many, if not most, secondary users seek at least some measure of commercial gain from their use, unduly emphasizing the commercial motivation of a copier will lead to an overly restrictive view of fair use…[cites another case saying that] if “commercial” nature of a secondary use is overemphasized in the analysis, “fair use would be virtually obliterated”…[and another case calling a] categorical rule against commercial uses unwarranted since this “would cause the fair use analysis to collapse in all but the exceptional case of nonprofit exploitation”…

The bold section, to me, makes sense: Just about anything could be construed as having a commercial purpose. The web site you’re reading now is a purely personal, non-money-making enterprise for me. But if it’s good, someone might offer me a paying freelance job because of it. (It’s even happened!) So does that mean anything I do to make crabwalk.com better is “commercial” in nature?

The appeals court ended up affirming the lower-court judgment for other reasons, but it ruled that Texaco — even though it was a for-profit company and the scientist was copying the materials so he could get better at making money for the company —

…was not gaining direct or immediate commercial advantage from the photocopying at issue in this case — i.e., Texaco’s profits, revenues, and overall commercial performance were not tied to its making copies of eight Catalysis articles for Chickering.

So, at least in the context of fair use, the courts say a huge corporation can copy copyrighted material and have it not be for “commercial advantage.” Or at least “direct or immediate” commercial advantage.

Now, I am so not a lawyer, so I’m certainly willing to be convinced that I’m wrong here. CC licenses and fair use are obviously not the same thing, even if the internal logics are similar. And if people like Aaron Landry don’t want their photos to be used by people like BoingBoing, they should certainly have the right to have their wishes obeyed.

But I just wish the CC people could make it clear, one way or the other. Unlike with copyright law — where Congress passes the law and it’s up to the courts to interpret and tease out the finer meanings of specific cases — Creative Commons creates its licenses itself. They should be in a position to give some better guidance on this — so people like Aaron know what rights they’re giving away, and people like Boing Boing and me know what rights we have.

29 March 2008

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