[cc-community] Question on NC clause and third party trackers

[Gisle Hannemyr]

On 05.07.2016 22:36, Bill Fitzgerald wrote:
> Hello,
> I asked a couple people about this situation - it's a very gray area, and
> I'd love to hear some thoughts here.
> 
> I was looking at some CC licensed content that was licensed with the NC
> clause, which got me to wondering about this scenario:
> 
> User A creates content, and releases it under a SA-NC license.
>
> User B creates a derivative work based on that content, and releases it
> under a SA-NC license. As I understand it, this is all completely fine.
> 
> However, User B's web site allows 3rd party ad trackers, and User B is
> compensated by the 3rd party ad companies.
> 
> Would this be a violation of the NC clause?

The NC clause is a notoriously difficult one to deal with in the many
borderline use cases one can think of.  My general advise is to *never*
use NC-licensed materials without asking the creator for permission in
a borderline use case.

However, what if you ignore this advice and go ahead and use it without
asking permission?  Can the creator sue you for breech of license and
prevail in court?

AFAIK, there are never been a court decision involving the NC license
and a borderline use case.  So there is no case history to turn to.
I don't anyone can provide a definitive answer about these borderline
use cases at this point in time.

So first, here's my disclaimer: This is not legal advice.  I am not a
lawyer. This is my *opinion* and as such, it is worth exactly what
you paid for it.

The defintition of NC in the legal code (ver. 4.0) is:

  "NonCommercial means not primarily intended for or directed towards
   commercial advantage or monetary compensation."

An important word is "primarily" - and IMHO, because of this word,
the creator can *not* use the NC clause to stop someone from using
the materials over *secondary* concerns such as disliking ad tracking
or other privacy related matters.

*Only* if the site exists *primarily* (i.e. the main purpose for having
the site online) is to generate income for its owner, then it is
"commercial" given the definition in the CC legal code, and only then
are you not licensed to use works with the NC clause on the site.

On the other hand, if the *main purpose* of the site is something else
(e.g. to be a soapbox for whatever passion the owner has), and the ad
trackers only are used to generate some compensation to pay for
hosting, bandwidth, and other real costs associated with having
the site on-line - then it is perfectly legal to use works with a
NC clause on the site.

> And, a variation of this scenario: User B does not allow 3rd party
> trackers, but User B mines user data from site visitors to support
> marketing and/or ad targeting by User B. Is this okay under the NC clause?

I think the same argument applies.  This is okay/legal if the commercial
data mining is not why the site  *primarily* exists.

While I can understand that some privacy advocates may have a strong
dislike of their NC-licensed materials being used on sites that do
this - they should be aware that a Creative Commons license is really
not the right tool to control how works you've licensed are used.

The NC clause basically says that: If you're going to *sell* this for
cash, then you need a separate license (and I want a cut).  For all
other use cases, the NC clause is probably not going to do restrict
what people will be allowed to do with your work.

> I've been doing a fair amount of work documenting 3rd party data trackers
> related to privacy work I've been doing, but it struck me that we will
> probably see some similar scenarios in the OER space, and I was wondering
> what you all thought about this.
> 
> As always, thank you for your thoughts on this.

OK, now you at least have mine.

-- 
- gisle hannemyr [ gisle{at}hannemyr.no - http://folk.uio.no/gisle/ ]
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