Noncommercial means noncommercial -- whatever that means

Summary:Copyright law in general and many license scenarios generally bar re-use of a work for commercial purposes. But determining what is commercial and what is not becomes increasingly difficult as the world becomes increasingly connected, and people can and do post a variety of materials in a variety of contexts. In our mashed-up world, "commercial" becomes hard to pin down, even when an employee posts something to an employer-hosted blog.

Niall Kennedy has this lengthy account of his successful efforts to have one of his Creative Commons licensed Flickr photos (licensed for noncommercial use) removed from Microsoft's Team RSS Blog.  Rather than send a cease and desist, Niall decided to make his point with a bit of a flourish.  The response he received emphasizes one of the most rapidly emerging and problematic gray areas of the Live Web:  when is a commercial site engaged in noncommercial activity, and vice versa?

I decided to educate Microsoft about the use of images licensed under Creative Commons and hosted by third-party sites by using the same tactics employed in its own fight against piracy, but with a little twist. I edited the Goatse image to remove depictions of anything that might be considered offensive, and placed the Creative Commons circle logo covering up the focus of the image. The modified image was meant to send a message to readers of the Internet Explorer team's blog that the new picture was out of place, and ensure quick corrective action from Microsoft. I was unsure how many employees in the software division would get the subtle reference to Microsoft's own anti-piracy efforts.

I sent an e-mail to Sean Lyndersay, author of the Microsoft blog post, shortly after the image swap stating I was the copyright holder and detailing the violation of Creative Commons license and Flickr terms of use. I provided a link to his blog post and advised him to choose a different image. Sean responded with his own interpretation of commercial use, claiming the inclusion of my picture in the post was an appropriate non-commercial use.  [...]
(Emphasis added.)  Sean ultimately removed the photo citing his failure to give Niall attribution, which doesn't quite jibe with Niall's account.  In any event, the story struck me as interesting and representative of an area where disputes are bound to increase:  namely, the difficulty of winnowing the commercial from the noncommercial in the various contexts of the Live Web.

 

Topics: Microsoft

About

Denise Howell is an appellate, intellectual property and technology lawyer who enjoys broad industry recognition for her expertise on the intersection of emerging technologies and law. For further details please see her professional background and speaking schedule. Denise's career is characterized by her passionate engagement in intell... Full Bio

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