First legal test of CC-NC license in Germany

[Julius]

http://www.heise.de/newsticker/meldung/ ... 51308.html
(German only)

But this case makes the "Non-commercial" option even worse than we always said

To quickly summarize:
A government owned radio channel (no advertisements, runs at a loss and is meant for public good) used a CC-by-NC picture with full attribution and everything on their freely accessible website and was sued by the photographer because of "commercial use". In the 1st instance this was ruled as correct as according to the judge "NC" means purely "private" use!

So especially if you are in Germany avoid the "NC" option like the bubonic plague!

However it seems like this is going in the next "legal round" and this ruling might be overturned later on.

[farcodev]

Licenses, our modern world plague.

[onpon4]

Licenses, our modern world plague.

I'm pretty sure that would be copyright, not licenses. Licenses give us back the rights copyright took away from us, and NC licenses just don't give enough back.

[farcodev]

Oops, yes you're right. It is copyright because of course I didn't talked about the open source licenses like GPL or the CC ones.
Copyright only benefit the paranoid corporations and states.

Thanks for the clarification :$

[c_xong]

But one could not have copyleft without copyright!

[gouessej]

It's a weird interpretation of the NC clause. I use the Creative Commons BY-NC-ND licence for my photos (with waived terms to specify a broader definition of commercial use), it doesn't mean "private" to me. In some countries, you can't abandon your moral right as an author which means that whatever the license you choose, you can almost always disallow someone to use your stuff even under a free license. I don't say it's a good thing in general.

[Julius]

With NC there are just too many borderline cases, this is just an example for a pretty extreme one.

The entire point of using a clear standard license is that there is as little uncertainty for someone reusing it as possible, thus NC is a bad choice and should have never made it in the CC license set.

[andrewj]

The entire point of using a clear standard license is that there is as little uncertainty for someone reusing it as possible, thus NC is a bad choice and should have never made it in the CC license set.

While I couldn't agree more, it seems most artists out there freak out at the idea of somebody making money off something they have donated to the world.

[gouessej]

With NC there are just too many borderline cases, this is just an example for a pretty extreme one.

The text of the licence is quite clear for me.

The entire point of using a clear standard license is that there is as little uncertainty for someone reusing it as possible, thus NC is a bad choice and should have never made it in the CC license set.

You can just clarify some aspects if you want but I understand that the need of this can be considered as a failure by some people.

While I couldn't agree more, it seems most artists out there freak out at the idea of somebody making money off something they have donated to the world.

I'm not an artist but I see the same thing in my country and personally, I don't want my whole game to be used in a commercial product. I don't want to earn money with my game and I don't want other people to use it for commercial purposes because it would ruin my message, the meaning of my game, my intentions.

[Akien]

While I couldn't agree more, it seems most artists out there freak out at the idea of somebody making money off something they have donated to the world.

I'm not an artist but I see the same thing in my country and personally, I don't want my whole game to be used in a commercial product. I don't want to earn money with my game and I don't want other people to use it for commercial purposes because it would ruin my message, the meaning of my game, my intentions.

Maybe then a strong copyleft licence such as the GPL would be the best way to preserve your intentions. It wouldn't prevent people from making money from your game (in all legal aspects, e.g. selling together with a Linux magazine a compilation DVD with hundreds of open-source game to broaden their userbase), but at least any resulting fork would have to be GPL.

[gouessej]

Maybe then a strong copyleft licence such as the GPL would be the best way to preserve your intentions. It wouldn't prevent people from making money from your game (in all legal aspects, e.g. selling together with a Linux magazine a compilation DVD with hundreds of open-source game to broaden their userbase), but at least any resulting fork would have to be GPL.

I already use GPL V2. If someone sold a game using a piece of my source code, I would just have to buy it to get its change, it would be discouraging I use the NC clause for the artworks to prevent commercial use of them, protecting just the code isn't enough.

[Julius]

@gruessej: have a look at this: http://freedomdefined.org/Licenses/NC the problem with NC is that it doesn't just prevent "commercial" use. The license part might be clearly worded, but the entire concept of commercial use isn't clearly defined and besides that there are also many beneficial uses that somehow somewhere might also involve some money which you usually do not want to forbid.

Use CC-by-SA and 99% of all kind of exploitative commercial uses (which you seem to be afraid of) will be impossible.

[gouessej]

@Julius Thanks for the pointer, I've found that on this page:
"Many bloggers and blog communities on the web use advertising as a way to recoup costs and generate income."
This is typically something a few free software developers try to avoid, not only me. The most famous example that comes to my mind is Friendica. In my case, I pay 3 € per month so that Automattic removes its ads from my Wordpress.com blog.

"The people who are likely to be hurt by an -NC license are not large corporations, but small publications like weblogs, advertising-funded radio stations, or local newspapers."
This is typically the kind of people I would like to "hurt" too. Google makes tons of money with ads. We need a sustainable and fair economic model, relying exclusively on ads is very dangerous on my view, it just encourages people not to look for a real solution. I use Adblock Edge and when a software is very useful for me, even though it is free of charge, I try to contact its developer and I give her/him some money. I gave 50 € to the developer of a blacklist application for Android.

"this will raise awareness of the issues with -NC. "
Julius, you did that
I don't say that I'm fully satisfied by the NC clause but I really like preventing my stuff from being mixed with crappy ads. The webpage you quoted is really interesting and contains tons of references but it says almost nothing about the ideological motivations of those who like this clause. Finally, I don't use such a licence for my source code which is still free.

[farcodev]

Let's socialize the internet! Oh wait...

[Julius]

"The people who are likely to be hurt by an -NC license are not large corporations, but small publications like weblogs, advertising-funded radio stations, or local newspapers."
This is typically the kind of people I would like to "hurt" too. Google makes tons of money with ads.

Google *is* a huge corporation, so I don't really get what you are saying here.

We need a sustainable and fair economic model, relying exclusively on ads is very dangerous on my view, it just encourages people not to look for a real solution. I use Adblock Edge and when a software is very useful for me, even though it is free of charge, I try to contact its developer and I give her/him some money. I gave 50 € to the developer of a blacklist application for Android.

Yes the entire ads-model is flawed, especially as it makes the consumers the product and not the customers. However at this point in time it is pretty much the only one that seems to work for online publications. The Free Software community is actually one of the few that actively try to find other functioning financing models too, thus using the -NC option is inhibiting this kind of creative thinking and ultimately consolidates the ad-model as the only viable option.
Oh and by the way, you realize that nearly all ad-block software available is actually working on a blackmail model? It's a not so well hidden secret that they get paid by ad companies to whitelist their specific ads.

[gouessej]

Google *is* a huge corporation, so I don't really get what you are saying here.

The webmasters who heavily rely on ads help Google to make tons of money. Now, Google has its own social network, it owns Youtube. Helping Google leads to help the centralized non democratic Web. If you bother Google's friends, your videos and your articles will simply disappear and it's the same on Facebook (petition against British Petroleum, pages about some associations and/or political parties, ...) and Twitter (hashtags about Occupy Wall Street, ...).

Yes the entire ads-model is flawed, especially as it makes the consumers the product and not the customers.

Yes, this is the case on Facebook even though it claims to be free of charge. When I buy a product in the supermarket, actually I pay both for this product and for the ads used to promote it. As a consequence, I give some money to advertisers who pay Facebook to put their crappy ads into it.

However at this point in time it is pretty much the only one that seems to work for online publications. The Free Software community is actually one of the few that actively try to find other functioning financing models too, thus using the -NC option is inhibiting this kind of creative thinking and ultimately consolidates the ad-model as the only viable option.

I admit that the use of the NC option can be counterproductive in some cases because when I use it, I don't only hurt those who depend on the ad-model, I hurt those who prefer the "pay what you want" + micro-payments (Flattr for example). I know what I'm going to write isn't 100% satisfying but I'm still open to allow certain uses on a case by case basis. Keep in mind that I don't see the NC option as something I would promote. If one day the global patronage worked, the ad-model would perhaps become obsolete, only those with really poor contents would still use it and the NC option would be even a lot less useful.

Oh and by the way, you realize that nearly all ad-block software available is actually working on a blackmail model? It's a not so well hidden secret that they get paid by ad companies to whitelist their specific ads.

That's the case of Adblock, that's why I have used 2 of its forks for several years so that by default I reject even "acceptable" ads.

[Lyberta]

But one could not have copyleft without copyright!

But why reverse something that is wrong if it is possible not to have it in a first place?

[Evropi]

FaTony is right. The logical conclusion of copyleft is the elimination of copyright. As the name suggests, it's a subversion of the concept of copyright in the first place.

Now, I don't agree with this but I respect FaTony's opinion as logically consistent.

[c_xong]

But why reverse something that is wrong if it is possible not to have it in a first place?

Without copyright, it's as if all source code is public domain by default. This would be great but wouldn't this not have prevented the situation that spawned GPL and FSF in the first place: a printer manufacturer refusing to distribute its source code? After all without software licenses there's nothing compelling vendors from providing source.

[Evropi]

But why reverse something that is wrong if it is possible not to have it in a first place?

Without copyright, it's as if all source code is public domain by default. This would be great but wouldn't this not have prevented the situation that spawned GPL and FSF in the first place: a printer manufacturer refusing to distribute its source code? After all without software licenses there's nothing compelling vendors from providing source.

We were talking about a logical maximum whereby everything is more or less in the public domain. In practice, it wouldn't ever happen.

[onpon4]

My suspicion is that abolition of copyright would destroy the economic incentive to mistreat users of software -- after all, you can't as easily make money selling copies of Windows if people can legally give each other copies -- and that this would counteract the loss of copyleft.

But of course, this is just conjecture, and it's very true that copyleft is not really a matter of fighting against copyright. More rather, it's a misuse of a completely unrelated system that just happens to work to give free/libre software a chance to compete on equal terms with proprietary software. Proprietary software almost never comes with source code at all, and it often comes with a contract which adds several restrictions (to the point where many people blindly accept these contracts without even reading them, a big mistake). So without copyright, proprietary software would still be under those contracts, and all people would have to distribute is a binary which cannot be reliably modified. Free/libre software, however, would come with source code (since that's necessary for being free/libre), and without copyright restrictions, proprietary software could incorporate this code at will, as if all free/libre software suddenly was under the X11 License. This is clearly an advantage for proprietary software.

I suspect it would turn out OK because the contracts wouldn't make distribution completely impossible if copyright wasn't available as a backup. After all, at least in the U.S., contracts can't be enforced on minors, so all it would take is a few clever teenagers to make and distribute cracked versions that don't require signing the contract to use the program. I suspect also that some people would be clever enough to figure out how to produce such cracked versions without ever having to accept the contracts. Still, losing copyleft is a very legitimate concern for free/libre software.

[gouessej]

It depends on what you mean by "copyright" and I remind you that it is strictly applicable in countries under common law (USA, Canada, India, Australia, ...). This word is used in other countries but with a slightly different meaning, something closer to "author's right". On my view, I would rather talk about the abolition of numerous exclusive author's rights rather than the abolition of the copyright.

[Andrettin]

http://www.heise.de/newsticker/meldung/Verstoss-gegen-CC-Lizenz-Deutschlandradio-muss-zahlen-2151308.html
(German only)

But this case makes the "Non-commercial" option even worse than we always said

To quickly summarize:
A government owned radio channel (no advertisements, runs at a loss and is meant for public good) used a CC-by-NC picture with full attribution and everything on their freely accessible website and was sued by the photographer because of "commercial use". In the 1st instance this was ruled as correct as according to the judge "NC" means purely "private" use!

So especially if you are in Germany avoid the "NC" option like the bubonic plague!

However it seems like this is going in the next "legal round" and this ruling might be overturned later on.

That is really bad news (and a nonsensical ruling IMO, but what can one do).