What is Non-Commercial Use?

What is Non-Commercial Use?

For cultural materials that, broadly defined, belong in a library, the Internet Archive offers free storage, and free bandwidth, forever, for free. As a result, there are now millions of works available through the Archive and most are available only for “non commercial use” and “with attribution.” Sometimes creators choose a Creative Commons license (creativecommons.org) to express this.

But what does “non-commercial use” mean? We are looking to understand people’s intent, which may be reflected in law in the future. If, collectively, we arrive at a good definition, then we hope many more people will make their works broadly available. This is a start of a definition that we could feel comfortable with. Please let us know what you think via the forum at http://www.archive.org/iathreads/post-view.php?id=111590 .

As a starting point, the Grateful Dead, a granddaddy of music sharing (called tape trading back in the day) says this:
“No commercial gain may be sought by websites offering digital files of our music,
whether through advertising, exploiting databases compiled from their traffic, or any other means.
All participants in such digital exchange acknowledge and respect the copyrights of the performers,
writers and publishers of the music.
This notice should be clearly posted on all sites engaged in this activity.”

How can we interpret this?

This statement revolves around the website that offers the files, not the company and not the webpage. Therefore, a commercial company could store and offer files non-commercially if they are on a separate website that is isolated from their other sites which might be deemed commercial. We interpret this as the originating host and those sites that present the files to users.

To broaden this definition, we could substitute “website” to “service” to cover a broader range of methods to find and retrieve information.

Subscription services: if only subscribers can get to the material, then that is deemed commercial use, even if this is done by a non-profit organization. If non-subscribers can also get equal access, then it is not commercial.

Ad supported websites that give away materials would be deemed commercial use. Therefore files offered from the AOL.com or NYTimes.com websites would be commercial use.

Catalog and navigation services, such as search engines, that help direct people to the non-commercial materials on non-commercial sites, we believe, do not violate non-commercial status, but navigation starts to look like re-hosting the materials (therefore possibly commercial use) when it is over a 2 line textual description, as common on Yahoo’s and Google’s web search result pages. There are also deep questions that arise when commercial companies, such as those that operate navigation services, keep and use the files pure navigation.

We do not believe that this agreement precludes uses that are “fair” (under Title 17, Section 107, of the U.S. Code). Although the agreement allows many uses that would not necessarily be fair uses, such as wholesale copying and rehosting elsewhere, fair use also allows many uses that this agreement does not explicitly mention.
For example, nytimes.com might be allowed to use a section of the work for news reporting purposes under fair use or other similar principles, even though that use is commercial (because nytimes.com is a for-profit service that makes money selling ads and subscriptions). Some people say that fair use does not exist in the digital world, because licenses and DRM explicitly strip away the power to make fair uses. We disagree: we see declarations that specify non-commercial uses as opening up both non-commercial and fair uses.

Give-away promotion: if the materials are being given away as part of a promotion, then that is deemed commercial use. For instance if Apple, through its iTunes service gave away material to promote its brand and attract paying customers of other services, that is commercial. If as part of the freely distributed iTunes desktop software, materials were also cataloged and distributed, that would be deemed non-commercial use.

So what are some non-commercial websites or services? Here are a few:
www.loc.gov by the Library of Congress
www.ibiblio.org by the University of North Carolina
www.archive.org by the Internet Archive
www.eff.org by the Electronic Frontier Foundation
web.mit.edu by the Massachusetts Institute of Technology

Brewster Kahle
Digital Librarian
Internet Archive
June 2005