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Christoph Boecken | 7 Sep 2006 12:54
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Does this case falls under CC Attribution-NonCommercial 2.5?

Hi,

I provide a template design (hosted on my own domain) for the blogging system WordPress, which is licensed
under CC By-NC 2.5, which means that it's not allowed to use the design for commercial purposes. The
relevant part of the license is quoted below:

"[...]You may not exercise any of the rights granted to You in Section 3 above in any manner that is primarily
intended for or directed toward commercial advantage or private monetary compensation. The exchange of
the Work for other copyrighted works by means of digital file-sharing or otherwise shall not be
considered to be intended for or directed toward commercial advantage or private monetary
compensation, provided there is no payment of any monetary compensation in connection with the exchange
of copyrighted works...[...] CC By-NC 2.5, Section 4, Part b.

Today I found out about a hosting provider, providing bloggers a platform with pre-installed WordPress
for a monthly fee. They also pre-install my template design on every new blog hosted there, along with others.

So, my question is: Is this a violation of the license? After all, the provider doesn't use the theme
directly to make money, it's more passive through the monthly fee for hosting. I don't exactly understand
the relevant part of the license, so if anyone could help me out, I'll really appreciate it.

Thanks in advance, Christoph
--

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Dylan Busa | 7 Sep 2006 12:58
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Re: Does this case falls under CCAttribution-NonCommercial 2.5?

I am in a similar situation but in regard to educational content. I too would welcome any clarity h CC
community can bring to how the NC restriction was intended to be used and how it should be applied.

Dylan Busa
Website and KMS Manager
Mindset Network
Office: +27 (0)11 408 4689
Fax: +27 (0)11 339 1570
Email: dylan@...
Web: www.mindset.co.za

This e-mail (including any attached files) is intended only for the addressee and may contain
confidential information. If you are not the addressee, you are notified that any transmission,
distribution, printing or photocopying of this e-mail is strictly prohibited. If you have received this
e-mail in error, please immediately notify the sender and delete it from your computer. Unless
explicitly attributed, the opinions expressed do not necessarily represent the official position of Mindset.

-----Original Message-----
From: cc-licenses-bounces@...
[mailto:cc-licenses-bounces <at> lists.ibiblio.org] On Behalf Of Christoph Boecken
Sent: 07 September 2006 12:54 PM
To: cc-licenses@...
Subject: [cc-licenses] Does this case falls under CCAttribution-NonCommercial 2.5?

Hi,

I provide a template design (hosted on my own domain) for the blogging system WordPress, which is licensed
under CC By-NC 2.5, which means that it's not allowed to use the design for commercial purposes. The
relevant part of the license is quoted below:
(Continue reading)

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rob | 7 Sep 2006 13:10
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Re: Does this case falls under CC Attribution-NonCommercial 2.5?

I am not a lawyer, this is not legal advice, I am not CC.

Quoting Christoph Boecken <jeriko.one@...>:

> Today I found out about a hosting provider, providing bloggers a 
> platform with pre-installed WordPress for a monthly fee. They also 
> pre-install my template design on every new blog hosted there, along 
> with others.
>
> So, my question is: Is this a violation of the license? After all, 
> the provider doesn't use the theme directly to make money, it's more 
> passive through the monthly fee for hosting. I don't exactly 
> understand the relevant part of the license, so if anyone could help 
> me out, I'll really appreciate it.

If you don't pay them, you don't get to use the template. That sounds like
commercial use. So their re-distribution of your work as part of their service
does seem to be for "commercial advantage or private monetary compensation".

You could email them and explain that they are breaking the terms of the
license. If that doesn't work you might be able to send them a DMCA notice
because they are hosting your copyrighted work without permission (by not
following the terms of the license).

- Rob.
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Bjorn Wijers | 7 Sep 2006 13:32
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Commercial definition in CC licenses 3.0 ? Was: Does this case falls under CCAttribution-NonCommercial 2.5?

This email made me wonder:

This seems to be (yet) another case in which it's not quite clear what 
is considered commercial and what not. I remember the draft guidelines 
about what is to be considered commercial and what not, but I actually 
can't remember if these were put into use?

Perhaps the issue with the vague definition of commercial use or not is 
  going to be addressed in v3.0  of the CC licenses? I haven't had the 
time to follow-up on the discussions around v3.0, so maybe somebody else 
can update me on this particular issue?

All the best,

grtz
BjornW

Dylan Busa wrote:
> I am in a similar situation but in regard to educational content. I too would welcome any clarity h CC
community can bring to how the NC restriction was intended to be used and how it should be applied.
> 
> Dylan Busa
> Website and KMS Manager
> Mindset Network
> Office: +27 (0)11 408 4689
> Fax: +27 (0)11 339 1570
> Email: dylan@...
> Web: www.mindset.co.za
> 
> This e-mail (including any attached files) is intended only for the addressee and may contain
(Continue reading)

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Mia Garlick | 7 Sep 2006 13:34

Re: Does this case falls under CC Attribution-NonCommercial 2.5?

hey christoph,

the relevant intention as to what NC means here is yours - if you  
feel that this is a commercial use then you can argue that it is.

two things that may assist you - in the recent Dutch case about the  
applicability of CC licenses held that a commercial publisher  
violated the NonCommercial license limitation when they used CC NC  
licensed images in a magazine that was then sold to the public: see  
here: http://creativecommons.org/weblog/entry/5944 (not this is not  
to suggest that this Dutch decision is binding on someone operating  
in another country).

also, the current draft of the Draft NonCommercial guidelines would  
deem this use to be commercial: http://lists.ibiblio.org/pipermail/cc- 
licenses/2006-January/003125.html (guidelines are at the end of the  
posting).  tell us if you think these guidelines accurately reflect  
your view of what NonCommercial means.

i do work for CC but CC cannot give legal advice or represent you  
(we're not a law firm)...happy to try to find you a lawyer if you  
need it...

all the best,
	

Mia Garlick
General Counsel
543 Howard St., 5th Floor
San Francisco CA 94105-3013
(Continue reading)

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Mia Garlick | 7 Sep 2006 13:36

Re: Commercial definition in CC licenses 3.0 ? Was: Does this case falls under CCAttribution-NonCommercial 2.5?

sure...allow me...given how much i love to talk about what  
NonCommercial means :-)

we have prepared a survey tool based on the current draft of the  
guidelines and, subject to the board's approval in october, hope to  
be able to roll this survey tool out to the public to get more  
feedback on the extent to which the guidelines properly reflect CC  
licensors intention when applying the NC license condition to their  
works....

in sum: stay tuned, we're still working on it!!

On Sep 7, 2006, at 4:32 AM, Bjorn Wijers wrote:

> This email made me wonder:
>
> This seems to be (yet) another case in which it's not quite clear what
> is considered commercial and what not. I remember the draft guidelines
> about what is to be considered commercial and what not, but I actually
> can't remember if these were put into use?
>
> Perhaps the issue with the vague definition of commercial use or  
> not is
>   going to be addressed in v3.0  of the CC licenses? I haven't had the
> time to follow-up on the discussions around v3.0, so maybe somebody  
> else
> can update me on this particular issue?
>
> All the best,
>
(Continue reading)

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LinuxLala | 7 Sep 2006 16:29
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Re: Does this case falls under CC Attribution-NonCommercial 2.5?

Hi everybody,

Some time back, I had raised a similar issue where I described a situation in which a wiki article under CC-NC was published in a newspaper. The general consent on this list was that this is a violation, even though the newspaper is not making money directly from that one article.

In your case, the money is much higher than what a newspaper costs and while the charge is for bandwidth, I believe that it is a violation since they are making money from a situation where your CC-NC property is being used.

Again, I am not a lawyer nor CC.

On 9/7/06, Mia Garlick <mia-DXT9u3ndKiT7y3wIJjeDKkB+6BGkLq7r@public.gmane.org> wrote:
hey christoph,

the relevant intention as to what NC means here is yours - if you
feel that this is a commercial use then you can argue that it is.

two things that may assist you - in the recent Dutch case about the
applicability of CC licenses held that a commercial publisher
violated the NonCommercial license limitation when they used CC NC
licensed images in a magazine that was then sold to the public. <snip>

_______________________________________________
cc-licenses mailing list
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jblake | 7 Sep 2006 18:22
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Re: Does this case falls under CC Attribution-NonCommercial 2.5?

Christopher wrote:

 >They also pre-install my template design on every new blog hosted 
there, along with others.

I would call that commercial usage.

> So, my question is: Is this a violation of the license? 

Yes.

Go through their website, and see what other clauses in the contract 
they are violating.  Make printouts, with the date and URL of the pages 
that indicate that the violation took place.

Then go to an attorney, to:
* Send a cease and desist letter;
* Negotiate a settlement;
* Draw up a commercial contract for your material;

 >After all, the provider doesn't use the theme directly to make money,
 > it's more passive through the monthly fee for hosting.

Passive, or active usage is irrelevant.

The issue is whether or not it is being used commercially.  By my 
understanding of copyright law, that does constitute "commercial usage".

 >I don't exactly understand the relevant part of the license,

One of the major problems with the CC-NC contract, is that there is no 
precise legal definition that is applicable across the board of "non 
commercial usage".  Compounding the issue is that there are two 
different guidelines of what "non commercial" means on the CC website. 
[One supersedes the other, but the old one does not point to the new 
one.] Scattered around the net, are at least half a dozen 
interpretations/understandings of what that contract means to the person 
who is using the licence.

Given the extremely diverse interpretations of the CC-NC licence, it 
appears that nobody is clear on what it permits, and what it restricts.

Note:  I am not a lawyer.

xan

jonathon
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Mia Garlick | 7 Sep 2006 18:26

Re: Does this case falls under CC Attribution-NonCommercial 2.5?


On Sep 7, 2006, at 9:22 AM, jblake@... wrote:

>
<cut>

>
> One of the major problems with the CC-NC contract, is that there is no
> precise legal definition that is applicable across the board of "non
> commercial usage".

really? where is the second? i'm only aware of this one: http:// 
creativecommons.org/weblog/entry/5752 (which is the same as that  
which appears on the wiki: http://wiki.creativecommons.org/ 
NonCommercial_Guidelines)

> Compounding the issue is that there are two
> different guidelines of what "non commercial" means on the CC website.
> [One supersedes the other, but the old one does not point to the new
> one.] Scattered around the net, are at least half a dozen
> interpretations/understandings of what that contract means to the  
> person
> who is using the licence.
>
> Given the extremely diverse interpretations of the CC-NC licence, it
> appears that nobody is clear on what it permits, and what it  
> restricts.
>
> Note:  I am not a lawyer.
>
> xan
>
> jonathon
> _______________________________________________
> cc-licenses mailing list
> cc-licenses@...
> http://lists.ibiblio.org/mailman/listinfo/cc-licenses
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Discussion on the Creative Commons license drafts | 7 Sep 2006 19:17

Re: Commercial definition in CC licenses 3.0 ? Was: Does this case falls under CCAttribution-NonCommercial 2.5?

Mia wrote:

> feedback on the extent to which the guidelines properly reflect CC  
> licensors intention when applying the NC license condition to their  
> works....

How many people are aware of either of the existing guidelines?
Or understand both the differences between them, and what they think the 
NC licence means.

xan

jonathon
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