The Divisive and Difficult Commercial Use Question

A recent post from The 1709 Blog raised a very interesting and simple point that those who routinely mull copyright issues face routinely.

Pulling a quote from the UK Pirate Party’s manifesto, which encourages the legalization of private file sharing but wishes to to give artists the first chance to profit from their work, the blog asks “What would there be to stop one person buying a song, film or book legally and then sharing it with everyone else in the world legally, leaving the original artist with only one sale?”

The question is an interesting one and the comments below, which include at least some higher ups in the UK Pirate Party, but the commercial use question is an age old one that predates the Web.

But the basic problem is a simple one: Non-commercial use often has dire commercial consequences. Just because a user isn’t selling or profiting from a work doesn’t mean they aren’t hindering the creator’s ability to do so.

This, in turn has implications for the laws and ethics that govern copyright as well as the licenses people choose to distribute their works under.

Nailing Down Commercial Use

Simply defining what is and is not a commercial use is thorny enough without additional complications. This is so much so that, back in 2009, Creative Commons posted a very interesting study as to what users thought commercial use was and was not.

However, even if we only look at the most clear-cut cases of non-commercial use, such as file sharing, there are still commercial implications to be found. The reason is that the idea of commercial vs. non-commercial use looks at the actual use itself, not the impact it has on the creator and/or copyright holder.

For example, though the actual commercial impact of file sharing is hotly debated, it almost certainly has an impact, no matter how large or small you believe it to be.

This, in turn, creates problems and conundrums for lawmakers and rightsholders alike and raises difficult questions about what copyright should protect and how.

The Challenge This Creates

The disconnect here is best illustrated by the Jammie Thomas-Rasset case, where a woman has been hit with damage awards anywhere between $54,000 and $1.5 million based on her sharing of 24 songs. This, despite the fact she never sold a single track.

The juries and even the judge looked at the perceived commercial harm her non-commercial her sharing did and decided on a damages award based upon that. It works that way because the entire system of statutory damages is designed to do just that, award damages when they can’t be calculated or proved based on a variety of factors.

Licenses also suffer from this issue as well. For example, using any Creative Commons License, even a non-commercial one, is likely not a smart move if you are commercially exploiting a work, especially if that exploitation involves selling copies of it.

However, the biggest challenge this issue creates revolves around the copyright debate itself. Copyright reformers routinely view only the act itself where copyright maximalists see only the harm, or potential harm, of it.

This causes two sides, which often have overlapping goals, to see the same act in very different ways and often clash very strongly rather than try to work out the differences.

Sadly, there’s no easy way to see this problem, not when two sides are looking at it from such drastic angles they can’t see the other’s viewpoint (at least not well enough to take it seriously).

Even worse, this problem is only going to grow as the Web continues to make non-commercial copying easier and cheaper.

In short, this battle is one that has just begun.

Bottom Line

If there’s one thing in my opinion in copyright that has changed over the past 6 years, it’s been that I’ve started seeing the world in shades of gray. Very few cases are truly as black and white as the sides involved want to paint it.

Both sides, at their extreme, try to simplify the issues and paint their pictures from one simple perspective. The commercial use is just one of those examples. Where one side sees millions in declining revenues and potential lost sales, another sees a single mom innocently sharing a few songs with friends. Both views are right. Both views are wrong.

I don’t have an answer to this problem nor do I see an easy way to resolve it. However, overcoming this perspective challenge, and others like it, is going to be critical to creating a better copyright future for everyone.

Sadly though, it doesn’t seem that too many people are willing to try and the few who are find themselves enemies of both sides of the debate.

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