What does the Non-Commercial license mean and why do people use it?

Variants of the Non-Commercial license are used for a lot of music published on Jamendo. I have read the Commons Deed for the BY-NC-SA license which has the wonderfully vague formulation "You may not use this work for commercial purposes". The actual license text says

"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."

which is almost as vague except for the explicit "digital file-sharing" exception, but uses more and longer words. What I'd like to know is what type of use of the music is "primarily intended for or directed towards commercial advantage or private monetary compensation". Or the exact same sentence in english: What are "commercial purposes"?

If a song is played on an ad-funded radio station, is that commercial use? Is there a difference between privately owned stations and public service? What if the station is funded by taxes or receiver fees instead? Does it make a difference if it's registered on a stock market and pays yearly dividends to the shareholders, instead of just paying its employees and making investments in the station?

If a song is played in a club, is that commercial use? Is it different if they have an entrance fee, or just make money from bar sales? What if it's played at some event that is sponsored by a large corporation which has ad banners hanging where the music is played? What if it's played in a supermarket?

If I know someone who sells burned CDs with free music (without the Non-Commercial restriction) and I tell him "I don't want to pay you any money, but I'll trade you a CD with NC-licensed music for one of your CDs", is that commercial use? What if it's not CDs but analog tapes (so it can't be considered "digital filesharing")?

I'm not looking to start a radio station, a club, or trade physical CDs with anyone, but I'd really like to know exactly what the NC licenses allow and what they do not allow. If anyone has any ideas about that and about the use cases above, please reply.

I'd also like to know how the artists that license music under a NC license interpret that license, and which use cases they want to prohibit by using that license. Common license templates are great, but if no one knows what a license means without testing it in court it is rather useless.

Well, you've raised some interesting points. My view:

I do not want to split hairs, I want to make music. Lawyers might circle a test case like buzzards, but we all know buzzards aren't exactly the top of the food chain. They do nothing except consume. Musicians are creators, producers; paper pushers are nothing but the remoras of society. Their work is to forbid, not enable; to shackle, not free.

I don't want to hear my music used in some TV commerical for toilet paper or adult diapers. Use it in a bar -- hey, great, us bass guys are what gets the crowd moving anyway. Play it on the radio -- wow, fine, you can even podcast my music. Play it at a corporate event -- well, as long as I don't see it used in some idiot commercial for hemorroid cream or medicine-of-the-month, no problem. I want to be a musician, not the World Police of my music.

I want my music to be freely shared and copied. If you like it, play it and share it; just make sure to give me credit, because there's more where that came from.

Part of my enthusiasm for Creative Commons comes from my experience with the GNU project and Linux. I'm a believer in "If you love something, set it free." What I have created, I want to live on; I do not want to chain it to me, because that enslaves both of us. Linux, by embracing freedom, has allowed growth and innovation.

For that last part, I chose share alike, in which, if someone wants to perform or modify my work, they may. When I was learning Jazz, one of the big stumbling blocks was "standards", the common language of tunes jazz musicians play; they are all hamstrung by copyrights, so tied up in legal do's and don'ts that, for years, the best selling fakebook was illegal and sold under the counter. This is clearly insane. Art and music are not served by enslavement of works.

OK, this started out as a three line answer, but as you can see, I feel strongly about it. I'll cut it off now, and maybe come back with points 4 through 3,230 some other time

Excellent explanation of your thoughts bmccosar.

I've got the same feelings, but for music to be truly free, I've decided that people can mangle and abuse it however they like - so long as derivatives have the same right. Commercial use is one of the freedoms that are necessary for free music to thrive.

So in my case, my music could be used to sell haemorrhoid creams etc, though ironically I'd find that a pain in the ass.

Sigh...it brings to mind Voltaire's famous words: "I despise what you say, but I will defend to the death your right to say it". I believe some of the same principles of freedom are involved here.

So, yeah, people could use my music to promote all sorts of horrible views (racism, religious intolerance, kiddy porn, terrorism etc). This is the sort of thing that happened to Rammstein and Wagner, whose music has been associated with Nazism.

If my music were abused in that way I'd explicitly have no recourse (unless demonstrable harm was done, I think - but I'm not even sure about that - I haven't thought about that too much because I'm not likely to face it).

Freedom does have associated problems. I've decided that the benefits of releasing my recorded music to allow commercial use outweighs the harm of not making extra money from the sale, because the sale-of-stored-music model is a distorted economic model. I believe other economic models will evolve as the distortion corrects itself over time.

I agree with pajandrum, I think music should be free as in freedom, so I don't agree with non-commercial clauses and don't use them. Musicians can still make money without restricting people's freedom to use their music, such as concerts, the street performer protocol and the threshold pledge system (see http://questioncopyright.org/faq). It's already been demonstrated that restricting people's freedom isn't necessary to make good creative works, by the free software movement, started by Richard Stallman and the GNU project (as mentioned by bmccosar).

By the way, Guyjohnston's written up an informative catechismic (sp?) page at http://www.freedomstuff.org/about.html . It's a work in progress (like most of the web ;-)), but it is still a thoughtful and clear explanation of what musical freedoms are about.

PS: Guy, in return for this brown-nosing I trust you will add The Maya Conglomerate to your artists list on freedomstuff.

PPS: Guy, seriously, only if you think we're good enough. That's freedom too, after all.

I wrote:

"Freedom does have associated problems. I've decided that the benefits of releasing my recorded music to allow commercial use outweighs the harm of not making extra money from the sale, because the sale-of-stored-music model is a distorted economic model. I believe other economic models will evolve as the distortion corrects itself over time."

I think I'll elaborate a little here. By "the benefits" I mean the overall benefits to society (specifically, the pleasure/contribution to culture). Contrariwise, by "the harm" I mean the loss to society of pleasure/contribution to culture) and the economic loss to me. By "distorted economic model" I mean the (music) economy has protections that prevent it from finding its natural equilibrium.

Now, such distorted economies historically have tended to correct themselves by illegal actions (smuggling, Gandhi's salt march, mp3 downloads). (I have included a clearly moral action (the salt march) in the list of examples just to illustrate the point that illegal does not necessarily mean immoral).

Distorted economies tend to get corrected by overthrowing the regime that enforces it (Eg: the collapse of the centrally planned Soviet economy) or by fixing the system to remove the distortion (Eg: China's embrace of capitalism despite its authoritarian state). I have no idea if this correction will also take place in the distorted music economy, and if the free music economy will win, but such a correction is something I believe is morally right, so I will encourage it.

So, what do I mean by music as part of the music economy?

I regard music as an expression of an idea. In an ideal music economy, where freedom to express/repeat/swap such ideas exists, the benefits a musician gets from the music would not rely on selling the expression of the idea on a recording. This is because copying such an expression is too cheap to meter.

Instead, the fundamental economic principles of the situation here mean that in a truly free music economy, to make a living the artist will have to rely on expressing in a way that is not economically viable for others to copy. Which is what Madonna and the Rolling Stones have figured out as a way to make more money - do concerts live with a truckload of sound and lighting equipment and a posse of dancers, charge whatever price the market will bear.

Yeah, right, so where does that leave most bands who don't have that huge machinery and ensconced status behind them? How can they, too, pull off the trick of getting money in from something that can't easily be copied?

Well, I don't believe you have an intrinsic right to get money from creating a song - even if it is something that gets people gushing over it. Partly because it is intrinsically unenforceable. On the other hand, I do believe you have an intrinsic right to *make* money from any song you make and any song other people make by playing it (live, or off a recording) and distributing it. Obviously this is mostly illegal at present because it doesn't work with the current legislation unless the songmakers are using a CC-BY-SA or similar licence. In a free music economy the need for such licences would not exist.

OK, so what about the common musician, trying to make his money? Where does it leave these non-superstar musicians?

Mostly broke. Which isn't different from the current situation anyway. Consider:

At the lower end, most cities that are culturally alive have a thriving music gig scene. Gigging is hard work, and pays very little, even if you are talented - but it has the value of it being hard to copy the atmosphere that the band generates. This atmosphere and image is what bands will have to rely on for money in the future.

After much hard work some bands attract enough people to move on to the next tier of higher paying venues (I personally find the atmosphere in mid and high tier venues pretty crap, but that's just me - there are enough people who like it enough to sustain such bands). Again, this will be a hard-to-copy scene.

But even at this level making ends meet is tough. Around then is when the move from amateur to pro happens. The leap from amateur to pro is scary, and the chasm beneath is littered with the bones of bands that failed to make it, even with good music - because being successful enough to make money while making music is not just about having good music, or playing it well. It's also about marketing, managing and planning (plus currently not selling your soul to the record label forever).

So, like I said, a musician doesn't have an intrinsic right to make money. He has to work really hard at it, and it is a truth that most musicians, unless they are smart, will be broke.

So, if someone likes my music enough, I reckon they deserve to try and make their money off it without encumbrances down the line - it's a brave enough thing that they are doing anyhow, and if the music does become popular, it'll be cool that others can copy/play/modify it, without having the Hounds of the RIAA snapping at their heels.

I'm bumping this as I'm new here and I think it's fascinating.
Kuro5hin had a piece on this
http://www.kuro5hin.org/story/2005/9/11/16331/0655

I think making your music available to commercial radio is essential to the idea of free culture, and a huge win for your exposure.

I think this notion that someone's going to press a CD full of your music and make $millions is goofy.

The use of one's music in ads is annoying, but it just seems like you have to take the bad with the good if you're a free-culture advocate. It's not your property.

Very good article, I hadn't read that before.

I think the NC license is a bad idea. The intention, as I read it, is to prevent someone else from putting your music on a CD and selling it more successfully than you are. However, what's the difference between that and someone selling copies of Linux they've burned to CD? The latter is legal, because the downloading, burning, packaging, and distribution all require effort and resources -- that's what the recipients are paying for, technically.

I also believe that "NC" is unenforceable as a result of being so vague.

I know all about these issues. In fact, I consider myself to be an expert on it.

Check out this chart .


Also, check out this article I wrote about it
http://www.teleread.org/blog/?p=3574#more-3574. That by the way was my analysis of Erik Moller's excellent article.

My short answer (and this may reflect my personal preferences) : CC BY + NC is a good safe (and noncontroversial) license compatible with lots of distribution/reuse methods. Advertising is probably commercial use, though that can easily be solved if the creator explicitly gives you the right to do this.

I personally will use CC BY for my own fiction, but I'm more generous than most people. For donations/tipjars, attribution is the most important thing.

The important thing is NOT to forbid derivative works.

I am looking for jamendo music for background music on podcasts. If an album is ND or SA, I can't use it (even if I have a noncommercial project).

How does SA prevent you from using it in your podcasts? The whole point of it is to ensure that the licensed material will always be available for derivative works, in all incarnations.

SA means that any derivative work you create needs to have the exact same license as what you are borrowing from. Personally I wouldn't mind doing that, but many contributors to my podcast are storytellers who have their own individual views about copyright. (Many don't even understand what CC means!). It would be really hard to persuade contributors that SA is a good license for them. For the sake of consistency and compatibility I have chosen CC BY + NC for the podcast as a whole. It's easier for them to understand "it's free to share if others don't make commercial use of it".

If you look at the chart I linked to above, SA is the most restrictive and least compatible licenses out there. Here, http://wiki.creativecommons.org/FAQ#I_used_part_of_a_Creative_Commons-licensed_work.2C_which_Creative_Commons_license_can_I_relicense_my_work_under.3F .

Here's from that FAQ page:

Can I combine two different Creative Commons licensed works? Can I combine a Creative Commons licensed work with another non-CC licensed work?

Generally yes; you can combine one Creative Commons licensed work with another Creative Commons licensed work or with another work.

The one big caveat is for Creative Commons licenses that contain the ShareAlike license element (ie. Attribution-ShareAlike, Attribution-NonCommercial-ShareAlike). These licenses require derivative works (ie. the result of two combined works) to be licensed under the same license elements. So, you cannot, for example, combine an Attribution-ShareAlike license with an Attribution-NonCommercial-ShareAlike. If you are combining a work licensed under a ShareAlike license condition, you need to make sure that you are happy and able to license the resulting work under the same license conditions as the original work.

****

SA is a good idea in principle (and as I said I would have no objection to using it for material I was solely responsible for), but from a standpoint of compatibility, it is difficult to use. Also, merely because something has a SA license doesn't mean I can't negotiate something privately with them.

idiotprogrammer, I wouldn't agree that the licences involving the sharealike/copyleft clauses are the most restrictive. I'd say licences which restrict commerical use or derivate works are the most restrictive, as they take away people's freedom to copy and modify the work. Copyleft licences only take away people's power to take those freedoms away from other people, by insuring that if anyone makes a derivative work of a work under that licence, they have to allow others the same freedom to copy and modify it that they had with the original work.

I agree that the incompatibility between the copyleft licences can cause problems, but a way to avoid this is to use more than one copyleft licence for a work, for example, CC by-sa, the Free Art Licence and the GNU Free Documentation License (without invariant sections). If you yourself are making a derivative work, for example a podcast with various people's contributions, you can still use a copyleft licence such as the CC-by-sa if the original works are under non-copyleft licences which allow the same freedoms, e.g. the CC-by.

Interesting point about NC or ND giving artists more freedom.

Giving artists the freedom to restrict music is like the freedom in giving a plantation owner the freedom to keep slaves.

Yes, I know, restricting music it isn't as evil as slavery (since slaves suffer). I have a shotgun, a burlap sack with heavy rocks and a deep pond waiting at the back of my yard for anyone who dares to point that out.

The point remains: it is indeed a freedom, but it works by restricting the freedom of the music/slaves being controlled. And it deservedly prompts the question - should music/slaves be controlled?

That's a good point with the slavery analogy pajandrum. Whether or not music should be controlled, and to what extent, depends on whether or not it benefits society. By allowing music and other works to be restricted, we as a society are trading our freedom to copy and modify them in return for possibly having more available to us, because it's easier for publishers and artists to make money from them.

Copyright made a lot of sense in the days of the printing press, because people couldn't easily copy the published books, so losing the freedom to copy them and publish modified versions didn't bother them much. However, as technology is progressing, it's becoming easier and easier to copy and distribute creative works and derivatives of them, so people want the freedom to do so, so that loss of freedom is becoming more of a burden. This also means that it's becoming cheaper to publish works, so publishers themselves are becoming less necessary. (When I refer to publishers, I mean anyone who distributes a work rather than writes it, which includes record labels and film companies. Also, please note that copyright in its current form was invented by publishers, primarily for publishers, not by artists, despite what some people might say. Please see http://www.questioncopyright.org/faq). Therefore allowing people to restrict works is becoming less and less beneficial for society.

I agree with the viewpoint of Richard Stallman, the founder of the free software movement (referring to freedom), that people should be allowed to copy all works noncommercially, and to copy and modify functional works freely, such as software, encyclopedias and dictionaries. I also generally agree that it makes sense that small restrictions on artistic works should probably still be allowed, as the benefits of making it easier to produce more of them probably still outweigh the effects of the lost freedom for most people. However, I still actively support people who release artistic works which can be freely copied and modified (including commercially), and I allow those freedoms for the works I release.

Hello everyone,

it's interesting to see the same issues pop up all over the web. :-) I'm the author of the above-referenced piece on the NC licenses. You can find an updated, illustrated version of that article here:

http://freedomdefined.org/Licenses/NC

It's a wiki, so I appreciate improvements & comments on the talk page. Together with Mako Hill of the Debian GNU/Linux project, and with input from the FSF and Creative Commons, we've also tried to develop a "Definition of Free Cultural Works", which lays out similar freedoms (but with more precision) as the Free Software Definition. You can find our first release here:

http://freedomdefined.org/Definition

In our definition, music under the NC license is _not_ free. Share-Alike licenses, on the other hand, are free, since they do not take away any of the core freedoms. Many arguments regarding NC are addressed in the above essay, but I'd like to respond to a specific claim that Share-Alike means that an entire podcast/etc. would have to be under the same license: not so. The license text specifically distinguishes derivative works from mere aggregation. A podcast where multiple songs are played sequentially is aggregation, not a derivative work. Such is completely permissible, regardless of the license status of these works. What is not permissible, however, would be to combine a song with a non-free advertisement (you could make the advertisement free, but few companies would be willing to do that). We're currently discussing with Creative Commons & other interested folks how the share-alike/copyleft model could be extended further to cover different needs, without resorting to the problematic NC restriction.

Note that using SA does not prevent you from negotiating commercial deals with companies that would like to combine your music with non-free works such as films & ads.

We have a grid of free licenses here:

http://freedomdefined.org/Licenses

We're also asking artists to help us develop alternatives to the Creative Commons buttons to identify freely licensed works:

http://freedomdefined.org/Logos_and_buttons

We need help with translations of the definition:

http://freedomdefined.org/Translations

Finally, using the wiki, we'd like to build a comprehensive index of freely licensed work across the web:

http://freedomdefined.org/Portal:Index

Your help in this process would be much appreciated.

Next steps? We need a Free Art Foundation similar to the FSF that promotes and articulates these freedoms. We need a digg-style index to freely licensed works. We need promotion & awareness campaigns, and educate artists that there are alternatives to non-free licenses. Together we can build a truly free culture without unnecessary restrictions & limitations.

Guy, I just saw the website freedomstuff.org. We should join forces. Could you contact me at (eloquence) (at) (gmail) (dot) (com) so we can talk? I did not see contact info on the website.

Before you ask, I'm not a musician (I spend most of my time with wikis & open source software), but I love the Jamendo framework. It's a great site and I don't mind listening to music under NC, ND etc. at all! I completely understand that many artists are reluctant to use a more permissive license. I just believe that if you're willing to give your music away for free, making it _completely_ free is only a logical and natural next step.

Those are some good points Eloquence. I agree that works which prohibit commercial use and/or modification shouldn't be said to be completely free (as in freedom). That's where I don't agree with Lawrence Lessig's viewpoint of calling cultural works 'free' even if they ban commercial use, which is a significant restriction. However, I totally agree that copyleft/sharealike doesn't stop it being free. My criteria for any free work are the same as the free software definition.

However, I'm not sure what my viewpoint is on whether or not partially nonfree works should be allowed. I think in terms of the law, noncommercial copying of unmodified versions should definitely be allowed, because the huge interest in file sharing and similar activities has shown that that's a vital freedom that a lot of people want to have, and the benefits of prohibiting that aren't big enough. In terms of whether or not smaller restrictions should be allowed, I think as long as the choice is made to allow the greatest benefit for the public (restricting works can possibly allow more to be produced), rather than to satisfy the needs of the big media companies, the right decision is likely to be made.

Thanks for finding my website. Unfortunately, I've been quite lazy with it recently and haven't added much for a while. I'm going to start doing more very soon. My main priority at the moment is to list all of the music on Jamendo which is under a completely free licence. It seems to be the main place to find freely licensed artistic works. I've also started another project called Freedom Buyer, which is a wiki to organise campaigns to liberate existing proprietary works, by raising funds to pay the copyright holders to relicense them under a free license. I've requested to create it on Wikia, and I should get a response soon. I've written most of the main pages, and I'll announce it on Jamendo if it gets accepted, which it should do.

I've looked at your site, and I think it's really good. I'd definitely be interested in collaborating with you. I'll contact you in the next few days or so after making some additions to my site. There's also an organisation which was started recently called the Free Culture Foundation (http://www.freeculturefoundation.org) which seems to have very similar goals to your site. There seems to be quite a lot of different organisations trying to define the freedoms of 'free culture'. I hope the commonly agreed on freedoms will be the same as yours, which are along the same lines of those of free software, rather than Lessig's definition which refers to partially free culture.

On the topic of Lawrence Lessig, I also don't particularly agree with the aims of Creative Commons. Their licences are useful, but their aim isn't on allowing people any kind of freedom, it's about making it easier for copyright holders to exert their power more flexibly. When they released the newer Sampling and Developing Nations licences, I think Richard Stallman has a good point by saying he can't support them anymore, because their licences don't all allow the freedom to copy the work noncommercially, which he sees as the absolute basic level of freedom all works should have. In that respect, I think the Free Art License is a better choice than the CC licences, and I think it should be made more clear on Jamendo that it's one of the licence choices, because the goal of Copyleft Attitude is specifically to allow people the freedom to copy and modify creative works.

Some other free culture-related sites I recommend are QuestionCopyright.org, Libervis, all of the Wikimedia projects and Wikia.

On a different note, does anyone think it would be a good idea to request Jamendo to remove the noncommercial restriction on the site's pages, and to find as many users as possible who will join us in doing so?

Thanks for the great thoughts here. I am actually reconsidering my own take.

Erik, I have a followup question. You say:
"Many arguments regarding NC are addressed in the above essay, but I'd like to respond to a specific claim that Share-Alike means that an entire podcast/etc. would have to be under the same license: not so. The license text specifically distinguishes derivative works from mere aggregation. A podcast where multiple songs are played sequentially is aggregation, not a derivative work. Such is completely permissible, regardless of the license status of these works."

The example I'm thinking of is where I take a 10-15 second clip from a piece of music as an intro or filler of a work. That, I believe would be making a derivative work (because I am not leaving the recording itself intact). So I'm guessing that I could use works that have a sampling plus license. (although I'm not sure you can search for that on Jamendo). http://creativecommons.org/licenses/sampling+/1.0/

I'm producing a text story collection, with 75% my own content, 25% that of others, so I could slap a NC-BY on the whole work (thus satisfying other's demands to preserve copyright), while putting a Sampling Plus on all the content which is originally mine. I just don't think I could sell others on the idea of BY SA.

As you can see, these issues really plague me these days.

BTW, pajandrum, thanks for the funny remark about evil. I've come to feel that people with different attitudes about ownership and creativity are not wrong, just need to be accomodated.

This is an excellent thread. I've been wrestling with some of these issues regarding my own music, and trying to figure out where that leaves us in terms of musicians making a living and how this approach might radically alter the basic workings of a capitalistic world. Obviously there are a lot of people on here who know far more than I do about the vagaries and details of these licenses; it's great to read through all this. I wasn't aware of Stallman's departure from support of CC; can anyone supply more data on that one?

I don't think this approach would "radically alter the basic workings of a capitalistic world". For a start, creative works are only one part of the economy and the issues of copyright and freedom with using information aren't related to things which can't be copied, such as money and physical property. There are new business models being explored for producing free (as in freedom) creative works. A lot of money is already made creating and improving free (as in freedom) software such as GNU/Linux, by companies such as Novell and Red Hat. I think the threshold pledge system is promising for artistic works.

It's important to remember that the main way copyright laws help more works to be available to the public is by supporting publishing and distributing works. This used to cost a lot of money, but it's rapidly becoming cheaper due to new technology such as the internet. Writing a creative work, on the other hand, has always cost very little, and often just requires a pen and paper, and some time. Although some people try to hide this fact, copyright in its current form was invented by publishers, for publishers (see QuestionCopyright.org). Its previous form was a censorship law, started by the English government.

As for Richard Stallman's views on Creative Commons, you can read about them in one of his blog entries on the Free Software Foundation site here, and in a transcript of one of his speeches here.