Creative Commons Non-commercial A Cruel Joke.

Posted on April 11, 2013

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edit-updated see end.

Got a tweet a few hours ago from @johnwallx pointing me towards this Google group discussion about Creative Commons licenses and 3-D heritage data. Dr. Isenburg was attempting to improve the use of 3-D modelling but had his data removed because it violated the creative commons licensing. If you don’t know what CC is, as always the Wikipedia article is very good. To sum it up, CC is a hack of copyright law that allows you to give permission for anyone to re-use your work without having to contact you. It has several parts that can be mixed and matched as you like. One is BY- which is basically states cite the author. SA which stands for share alike, means you have to keep the original CC license with whatever you do with the work EVEN if you only use a part of the work. There are several others but the one that is a cruel, cruel joke is “Attribution Non-Commercial (CC BY-NC)” in the others like it-

  • Attribution Non-Commercial Share Alike (CC BY-NC-SA)
  • Attribution Non-Commercial No Derivatives (CC BY-NC-ND)

The reason it is a cruel, cruel joke is because practically anything and everything can constituted as a commercial use. A quick example, I post a CC BY-NC photo on a tutorial about GIS that is both free and educational for everyone to use. I should be fine, right? WRONG! It is posted on a platform, wordpress.com, that uses advertisement to make money to support the platform, a for-profit endeavor. That is considered for-profit even though I made no money. Basically, any for-profit platform that I use is excluded from using Non-Commercial CC material. Sharing on Facebook, Twitter, Blogs, OUT. Basically, if it involves the web it is pretty much out. This is potentially where Dr Isenburg loses all standing to be able to use his material.

Now, you might be thinking at this very moment of a scenario like this- what if I use a Linux server pay for all the costs myself and don’t have advertisement on my website. Well there is this thing called personal gain. If people see your work than you gain prestige. Maybe it acts as a resume and you gain a job from it, either way you benefit and that is commercial. What if I work for a non-profit? Does the non-profit raise funds and pay salaries? It gets dicey there and to be honest no one has tested this but the potential to open your self up to a law suit is there.

Are their any educational not-for-profit uses that are covered? To highlight how much of a clusterf$%k the whole NC is take a look at Fair Use. Again for those that don’t know what it is check out the Wikipedia article on fair use. It mainly applies to the U,S but other countries as well, in which the copyright law allows certain use of materials for educational purposes without the copyright owners permission. It was originally based on four principles.

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

Well, guess what? It is now down to only three principles. Can you guess which ones the courts no longer deal with? Yes, principal one is no longer being taken into consideration or as a diminished consideration because it is so hard to separate commercial from nonprofit uses-

“since many, if not most, secondary uses seek at least some measure of commercial gain from their use”-from wiki

Basically, CC-NC is a joke when it comes to allowing other people to use the material. It is a cheap way for an organization to seem open when really they are not. You actually have more rights under Fair Use to use a work, because of the diminished emphases on non-commercial uses, than under CC-NC.

Back to the story that started this all, Dr. Isenburgh is using software from http://rapidlasso.com/, which from what I can tell he created and gives away for free. However that does not rule out some measure of personal gain so he probably loses out on using it under CC license. HOWEVER here is the kicker in this whole story- FACTS and IDEAS are not protected by copyright.  Ideas are protected by patents and facts are protect by nothing, as they should be. If it is only data he was using than he is free to use it. CC would only apply to the images produced with the data NOT the data. If Dr. Isenburgh so wanted he could sue his webhost and CyArk for the damages they caused him by removing work that they did not have the right to and in the case of the host did not confirm who the copyright holder was. (NOTE I am not a lawyer and think that any lawsuit around such issues is stupid. I am merely hypothesizing that Dr. Isenburgh could sue, as most people can, but that does not mean he would win)

Now, to be clear data can still come under copyright in some cases. For example a map is usually made up entirely of factual data BUT it is still under copyright. How thick the blue lines vs the red lines on the map is under copyright. Database can technically be under copyright as the data is stored in presented in a unique way. However, there is nothing stopping anyone from taking a dataset and re-mixing and moving it around to create their own unique copyrighted material. In the case of Dr. Isenburgh, IF I understand it correctly, he is using data but not using the representation of it, in which case he is fine and well within his rights to do. UNLESS to obtain the data he agreed to some other license that precludes him from doing so. Regardless,  CyArk can not stop him from using data which he is modifying with a copyright license like CC.

In conclusion, DON’T use CC-NC, it is the CC version of rickrolling someone because they will probably never be able to use it for anything. Also, facts can not be under copyright.

Edit based on a comment of clarification to the example-

“I just got word from Tom Greaves (Executive Director at CyArk) that “None of our 3D point cloud is available under Creative Commons. Only some of the 2D image data is covered by this.”

That follows pretty much what I expected. However that still leaves open the issue of data being covered by any sort of license. The page where the data was retrieved from has a copyright “All content copyright CyArk and Partners 2010″. It is debatable if a point cloud could be copyrighted? If it is data, no way can they stop it. If it is a database, maybe? Europe has some odd laws about copyrighting databases but not their contents however the US does not. IF it is copyright than fair use kicks in and he should be fine.

To determine if a point cloud is copyright or not would actually mean going to court. Someone would have sue someone to see if it is or not. Moreover, if it is covered by copyright Dr. Isenburgh would most likely kick some a$$ on the fair use aspect. Mainly on point four, how it hurts CyArk. Given that CyArk give out the data for free and as far as I can tell Dr. I. was not distributing the work other than as an example they would be very very hard pressed to show any sort damage.

Can’t stress this enough I am not a lawyer. This is not legal advice. I have just dealt with lots of copyright issues and have learned a fair amount (also-enough to know that laws differ from country to country and I am only talking about the US so lawsuits in other places may be different.)

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