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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 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 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 produce 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 practice of licensing a source code under one of Creative Commons license is discouraged but irregardless 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.

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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.

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  • Thank you for your detailed answer. One additional question if I may. Why do you recommend against using a software in the way that is allowed by software copyright license but might be against the wishes of the copyrights holder? Is this recommendation based on moral reasons (e. g. not being a ****), financial reasons (e. g. there’s a higher probability of legal action initiated by copyrights holder and one would have to invest time and money to defend herself) or legal reasons (e. g. copyrights holder can sue and actually win the case) or some combination of thereof?
    – vrsio
    Aug 23 at 20:29
  • @vrsio All of the above. If the software's author makes multiple potentially conflicting statements like “this is licensed under CC-BY-NC” and “free for personal use”, it might be difficult to argue that you would be allowed to run the software for scenarios #1 or #2 just because CreativeCommons doesn't forbid it. But a good-faith user would probably be able to escape legal problems due to contra proferentem doctrine: ambiguity should be interpreted against whoever wrote the contract, or against whoever tries to enforce it. Defense could still imply substantial costs, though.
    – amon
    Aug 24 at 12:04
  • Again thank you for your answer. I was actually thinking about this a bit more today and maybe I'm jumping to the conclusion here but does 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. imply that as soon as someone publish a code on Github and by doing so grants other Github users the right to clone her repository, there's no copyright license she can possibly draft that would prevent others from building and running her application locally for any possible purpose?
    – vrsio
    Aug 24 at 20:42
  • @vrsio Kind of. Public licenses (including open source licenses or CC-BY licenses) are an unilateral offer. Recipients are motivated to accept those licenses because nothing except those licenses gives them the right to make copies or modify the software. Except that copyright law already comes with tons of exceptions (e.g. fair use in the US). And merely running a program is not restricted by copyright law, and doesn't require acceptance of the license. This a bit different to EULAs that prevent access to the software or prevent the software from running unless a contract is accepted.
    – amon
    Aug 24 at 20:59
  • The caveat is that cloning a repository to a local computer and building it there does involve making a copy, which would require a license. The default GitHub license for public repos only allows viewing the code and clicking the “fork” button.
    – amon
    Aug 24 at 21:00

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