Allowed uses of a software licensed under CC-BY-NC license

Question

Recently I’ve come across several different programs on Github that are licensed under one of the Creative Commons noncommercial licenses and even after reading several articles on Wikipedia and Creative Commons Wiki and several threads here on Stack Exchange I still don’t fully understand what I can’t or cannot do with such a software.

I’ll start with a hypothetical scenario. Assume a text editor licensed under one of the noncommercial CC licenses. Am I allowed by its license to

• use such editor to do commercial work as an employee of for profit organization (e. g. create commercial software artifacts)?
• use such editor at home to create a work with the explicit intent to sell such work (e. g. write short story and try to sell it to newspapers/magazines)?
• use such editor at home to create a work, that might be exchangeable for monetary compensation in the future (e. g. write a short story for the fun of it with no intention of selling it now but keeping the doors open for commercial possibilities in the future)?

Does the answer to any of the preceding questions change with generative art software? To make it more concrete and specific I have found a name-generating software licensed under CC-BY-NC that takes a list of name as input and produces a list of similar sounding names as output. If I use my own lists of names as input, can I use outputted names in the use cases mentioned above?

Based on the reading I've done so far, I'd guess that all aforementioned uses are allowed by the license but I'm not really sure about that.

As a side note, I’m aware of the fact that the practice of licensing a source code under one of the Creative Commons license is discouraged but regardless I have to respect the license chosen by the copyright holder. I’m also aware of the fact, that noncommercial licenses are not considered free and as such are probably off-topic here but I’ve read several historical threads discussing this very subject on this site so I hope it’s OK to ask.

Answer 1

You are not alone in finding the NonCommercial CC variants confusing. It is really difficult to define what NonCommercial is supposed to mean, and it's quite likely that the copyright holder had a different opinion about this than you.

Let's look at the NonCommercial definition in the CC-BY-NC 4.0 license:

NonCommercial means not primarily intended for or directed towards commercial advantage or monetary compensation.
_{For purposes of this Public License, the exchange of the Licensed Material for other material subject to Copyright and Similar Rights by digital file-sharing or similar means is NonCommercial provided there is no payment of monetary compensation in connection with the exchange.}

I've de-emphasized the second part of the definition because it relates to file-sharing which is not relevant here.

Let's see how this definition squares against your scenarios.

1. Am I allowed by its license to use such editor to do commercial work as an employee of for profit organization (e. g. create commercial software artifacts)?

   It sounds like the purpose of that use would be directed towards commercial advantage. Thus, it likely isn't NonCommercial.

2. Am I allowed by its license to use such editor at home to create a work with explicit intent to sell such work (e. g. write short story and try to sell it to newspapers/magazines)?

   It sounds like the purpose of that use would be directed towards commercial advantage. Thus, it likely isn't NonCommercial.

3. Am I allowed by its license to use such editor at home to create a work, that might be exchangeable for monetary compensation in the future (e. g. write a short story for the fun of it with no intention of selling it now but keeping the doors open for commercial possibilities in the future)?

   It does not sound like the use of the software is made with the intention of commercial advantage, at least at the time of the use. Thus, the described activity might fall within the NonCommercial definition.

But it's important to understand for which grants of rights under the Creative Commons license the NonCommercial aspect would even be relevant.

• CC-BY-NC is a copyright-based license. It only gives you some rights you wouldn't have under the defaults given by copyright law. It doesn't take rights away that you already have.
• CC-BY-NC gives you the right to reproduce, modify, and share the licensed material, but only for NonCommercial purposes.
• Copyright and the CC-BY-NC license do not regulate mere use, such as executing a program. The NonCommercial definition is not relevant.

So in all your scenarios you could run the CC-BY-NC covered program, but you wouldn't be able to distribute it. For example, an employer who makes copies of the editor software and gives them to its employees might be violating the NonCommercial clause. And you wouldn't be allowed to modify the software for freelance writing purposes.

This distinction between use vs reproduction is not obvious. Whoever chose the CC-BY-NC license for the editor probably wasn't aware of that distinction. The Creative Commons licenses are intended for general creative works like texts, images, or recordings. They can lead to unintuitive results when applied to software. I'd recommend that you avoid using a software if your use would be clearly against the author's intention.

About name generating software: the above discussion holds just the same: you can run the software without restriction, but only reproduce, modify, and share the software for NonCommercial purposes.

Answer 2

Since this question surfaced again after almost 2 years, it deserves a close look.

The CC BY-SA license states in Section 2.a:

License grant.

Subject to the terms and conditions of this Public License, the Licensor hereby grants You a worldwide, royalty-free, non-sublicensable, non-exclusive, irrevocable license to exercise the Licensed Rights in the Licensed Material to:
A. reproduce and Share the Licensed Material, in whole or in part, for NonCommercial purposes only; and
B. produce, reproduce, and Share Adapted Material for NonCommercial purposes only.

Strictly speaking, this license does not grant you the right to run the software. This is one of the limitations of CC licenses, they are just not tailored for software, therefore they should not be used. The question now is what the author of the code meant when publishing the software? Was it intended to just be printed and used as wallpaper, or was the intention to enable recipients to run the software? If you received the software in object code it is highly likely that it is intended to be run (a presumption of the original author's intention?).

Let's ignore the previous paragraph for a moment and assume that you decide to run the software. What does the 'NonCommercial'-restriction mean for your use case?

The non-commercial restriction is related to a) reproduce and Share the Licensed Material and b) produce, reproduce, and Share Adapted Material.
a) means that you cannot share the software itself, while b) extends that (in software terms) from the source code to the object (executable) code. Please note that the emphasis is on the sharing ("and Share"), they don't apply for in-house use without sharing to 3rd parties.

The GPL FAQ states an important principle of all software licenses: The license of the output created by a software when run is not dependent on the license of the software.

In general this is legally impossible; copyright law does not give you any say in the use of the output people make from their data using your program.

Therefore, you should not be concerned, you may use the output of the software (the list of similar sounding names) also for commercial purposes, as the license of the software is not determining the license of the output. However, the question still remains open if the original author had the intention to allow the software to be executed on a computer.