Responding to David Wiley:
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 http://www.downes.ca/post/11 - 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.
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