A Better Definition Of “Non-Commercial”

Reflections: There is an ongoing discussion about the next generation of Creative Commons licenses, and the “Non-commercial” licenses may be dropped – the licenses that allow you to publish something for free distribution provided you don’t make money distributing it.

This is a bit of an odd animal. As Nina Paley has succinctly pointed out, this has no equivalent at all in the Free Software movement – whether you make money or not is irrelevant to the GNU General Public License of free software, which has been an enabler for a large group of entrepreneurs. Most of the discussion around  the distinction of “non-commercial” seems to stem from Larry Lessig’s argumentation in his book Free Culture.

At the same time, there is a considerable gray area in what is considered non-commercial, and as I have previously argued, any gray area at all – any kind of conditional safe harbor – will mean that the copyright industry will gradually turn white to black and legal to illegal through a series of precedent-setting lawsuits – simply because, first, it is their job to keep jabbing at any gray area and change the expected outcomes, and second, there is no risk whatsoever associated with filing phony lawsuits until one of them magically succeeds. A recent TorrentFreak column suggests the same thing as I have argued – that stealing, or attempting to steal, from the public domain (in which case it really is stealing) should be criminal, and that the normal copyright monopoly penalties should also be applied to anybody falsely asserting such a monopoly.

I make two observations here. The first is that our efforts in the Pirate Party has long been articulated as pushing the copyright monopoly out of honest people’s bedrooms, back into the negotiation rooms of the publishing houses, where it should only concern their lawyers. At the same time, this has been mixed up and blended with the Lessig argumentation of “non-commercial” activitiy, and considered to be the same thing.

But it isn’t the same thing. Not by a long shot. The first distinction above is a who, the second distinction is a what. A distinction based on who needs to abide by the copyright monopoly rules can be black and white, leaving out any gray area for jabbing at, whereas a distinction based on the type of activity will invariably slide towards black and illegal across the entire spectrum as the lawsuits start coming.

The second observation is that the non-commercial license, which may not be exactly parallel in thinking to the Free Software concept, still has significant support and enables publications for free distribution – publications that otherwise wouldn’t be published and freely distributable without a profit motive. Speaking pragmatically, I argue and sense that the public opinion, when it comes to the copyright monopoly, is still very rooted in the idea of “right to make money”, and that the step of aligning free culture with free software – while logical – is just too soon without the support of public opinion.

The consistently brilliant Crosbie Fitch has long pointed out this inconsistency, and has argued for a different definition of “non-commercial”, one that I believe solves all of these problems. By defining “commercial use” as “use by a legal entity that is neither a natural person nor a non-profit organization”, you define the term in a clear black and white in a heartbeat, and make it only apply to large corporations. True, you would let people sell small-scale print runs out of their trunk if they could, but that’s not anywhere near the large-scale ripoffs we wanted to prevent when we talked about pushing the copyright monopoly back to the lawyer rooms in large, marble-floored publishing houses. You’d let people share and distribute freely as long as they didn’t do it in the capacity of being employed by a limited-liability corporation or a government – which was exactly what we were after, and this short phrase captures, defines, and divides commercial and noncommercial beautifully. I argue that it is the best definition I’ve seen so far.

True, you would put governmental agencies in the “commercial” arena by this definition. But don’t we want to incentivize them to switch to truly unburdened culture, knowledge, and tools? Their budgets is one of their best incentives to make that happen, so I argue that defining governments and governmental agencies as “commercial” is a desired effect of the definition rather than an undesired side effect.