Creative Splommons?

by John Holbo on January 1, 2006

Bob Stein at if:book has a legal/ethical/tactical question about CC and non-commercial use:

there’s a site [but I’m not going to link to the pesky bugger – JH] that reposts every entry on if:book. they do the same for several other sites, presumably as a way to generate traffic to their site and ultimately to gather clicks on their google supplied ads. if:book entries are posted with a creative commons license which allows reuse with proper attribution but forbids commercial use. surferdiary’s use seems to be thoroughly commercial. some of my colleagues think we should go after them as a way of defending the creative commons concept. would love to know what people think?

If you want to view the splog in question, there’s a link in Bob’s post. (Click here for a wikipedia definition of ‘splog’.) It seems clear splog use cannot possibly be non-commercial. As to whether the if:book folks should care, one commenter writes: “Whether you want to go after this splogger is your choice, but in general I think bloggers should welcome addition exposure and treat it like an advertising opportunity. I don’t think splogs are a good thing, but RSS makes all kinds of syndication possible – legitimate or otherwise…”

I’m curious about a different question: how exactly does this CC license define the ‘commercial purposes’ bit of ‘you may not use this work for commercial purposes’? For example, good old J&B Have A Blog has a sidebar of Amazon links; I do the Amazon associates thing. I make a couple bucks. What makes our site different than a splog is, among other things, that small sums we earn are definitely not the point. But I’m not sure how that could be legally codified. ‘Non-commercial’ doesn’t seem the best way to capture ‘incidentally commercial’, or ‘not PURELY commerical’. No doubt the wise prof. Lessig has considered this, but I don’t know what the answer is. Do you?

In case it isn’t clear what I am asking, I think it’s this: the point of a CC license is to allow people to republish content with certainty that they are legally permitted to do so. What allows a blogger or web-publisher with incidental advertising to KNOW that they are a non-commercial user?

UPDATE: I actually have popped the hood on the license and looked inside. But I’m not sure I understand what the legal thing that ‘not for commercial purposes’ means really MEANS, in practical terms:

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.

Amazon associates and googleads provide monetary compensation. On the other hand, there is that ‘primarily intended’ clause. But that’s vague. The point of a license is to give users confidence they are in the clear. Perhaps there need to be test cases, and just haven’t been any yet?

Actually, the problem may be ambiguity: ‘…in any manner that is primarily intended.’ Does that mean the manner in which I make my blog as a whole? Or the manner in which I make an individual link with an embedded Amazon associates ID? Makes a bit of a difference.