The commercial conundrum

Dark grey between the black and white

Last week, The Legal Genealogist tackled half of reader Lynda Peach’s questions based on the launch of her new blog, idogenealogy.net. The easy half, about Microsoft clip-art. Now for the hard half.

“Given that I have affiliates listed on the site,” she asks, “is my site now COMMERCIAL?”

It’s an important question for genealogy bloggers, many of whom allow Google AdSense or similar ads or participate in affiliate programs to help underwrite the costs of running a website.

Many resources out there, including lots of content available under what are called Creative Commons licenses, only allow personal use, not commercial use. Many websites let you copy and use small portions of their content, but only for personal, not commercial, use.

AdSense, if you’re not familiar with it, is, in Google’s words, “a flexible, hassle-free way to earn revenue by showing relevant and engaging ads alongside your online content.”1

And affiliate programs are a form of revenue generation. Here, for example, is the exact language from the Flip-Pal affiliate program: “An affiliate program is a revenue sharing program where the affiliate (that’s you!) drives traffic to a merchant’s web site (that’s us!) in exchange for referral commissions. When a visitor to your site clicks on the affiliate link to our site and completes a purchase, you get a commission on every item they buy!”2

So the issue is what content those bloggers can freely use on their blogs from other content creators — artists and photographers, for example — who make their work available to others for free but only for non-commercial use.

And although this is something of a grey area between the “I’m in it for the money” websites and the “I’d never take a penny” websites, the answer is likely to be Bad News. Because taking any money for your website, in any way, puts you way into the dark grey side of things.

The problem is that, in general, the web world is agreed that any site with advertising is regarded as commercial by content creators. It doesn’t matter if you make enough from advertising even to pay your hosting costs. The fact that you’re trying to put money into your pocket that wouldn’t have been there if you hadn’t set up your website that way is enough to put it over the line in the generally accepted meaning of the term among creators.

The Creative Commons folks did a survey intended to guide their future development of their licensing system. And overwhelmingly people who create content and then release it for non-commercial use only think any type of advertising on the site makes it commercial. Fully 60% believe that it’s even commercial use for a not-for-profit organization to use the work on its site, when the organization makes enough money from ads to cover its web hosting costs. Overall 79% of respondents said it was “definitely commercial use” if the user (say, a blogger) would make money from the use in any way.3

That jibes pretty well with the definition advocated by the Internet Archive, that wonderful repository of publications we all love to use: “Ad supported websites … would be deemed commercial use.” And it quotes approvingly what the Grateful Dead said: “No commercial gain may be sought by websites offering digital files of our music,
whether through advertising, exploiting databases compiled from their traffic, or any other means.”4 Get that language: “No commercial gain … (through) any other means.”

That’s also pretty much in line with what the U.S. Supreme Court says in the copyright context: “The crux of the … distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.”5

In other words, does having this content help take money from someone else’s pocket and put it into yours in some way? And you’re hoping it will, aren’t you? You want folks to come to your site and read your stuff, and that’s why you’re using the content in the first place, no? And when they’re there, you also want them to click on an ad or go to an affiliate site to help pay that hosting bill, right? You wouldn’t be using the content or allowing the ads or affiliates if you didn’t.

Now this isn’t a 100% for-sure answer, because what is and isn’t commercial is hotly debated online, and even the Creative Commons folks are still struggling with it. It doesn’t help that the exact language of the license says that the non-commercial restriction means you can’t use the content “in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation.”6 Clearly, the word “primarily” is being read out of the license by the vast majority of creators. Proposals to change and clarify its non-commercial use licenses have gone round and round with all kinds of debate and ended up exactly nowhere: the next version of the license is likely to say exactly what the current one does, even though people don’t always agree on what it means.7

But if you’re earning any money from your site through advertising or anything that smells like advertising like an affiliate program, then, in your shoes, I’d either use materials that are free for commercial use or ask permission, particularly if what you want to use is under a Creative Commons non-commercial license. And if you’re thinking about adding ads or affiliates to a site where you’ve already used materials restricted to non-commercial use, I’d ask permission to keep those items on the site and not just assume it’s okay.

Because I agree, generally, that “there is something approaching consensus … that ad-supported sites are considered commercial.” 8 And violating a license for content otherwise protected by copyright is Not A Good Idea. Because the content you’re trying to use is still copyrighted. A license, whether under Creative Commons or anywhere else, is just an easy way for the content creator to give permission to a large group of people to use it without them having to ask each and every time. If you use the content in a way that violates the permission you’ve been given, you’re still violating the creator’s copyright.

It may be easier, as the saying goes, to get forgiveness than permission. But forgiveness in this context can come with a hefty price… one your ad or affiliate revenues aren’t likely to cover.


 
SOURCES

  1. AdSense,” Google.com (https://www.google.com/ : accessed 31 Jan 2013).
  2. Frequently Asked Questions,” Flip-Pal Affiliates (http://flip-pal-affiliates.com/ : accessed 31 Jan 2013).
  3. Defining “Noncommercial”: A Study of How the Online Population Understands “Noncommercial Use” – September 2009, Creative Commons (http://creativecommons.org/ : accessed 31 Jan 2013).
  4. What is Non-Commercial Use?,” Internet Archive (http://archive.org/ : accessed 31 Jan 2013).
  5. Harper & Row v. Nation Enterprises, 471 U.S. 539, 562 (1985).
  6. CC 3.0 Legalcode, § 4(b), Creative Commons (http://creativecommons.org/ : accessed 31 Jan 2013).
  7. See Creative Commons Wiki (http://wiki.creativecommons.org/), “NonCommercial,” rev. 30 Aug 2012.
  8. See Molly Kleinman, “CC HOWTO #2: How to use a work with a NonCommercial license,” Molly Kleinman, posted 21 Aug 2008 (http://mollykleinman.com/ : accessed 30 Jan 2013).
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9 Responses to The commercial conundrum

  1. I don’t want to add affiliation to my blog, nor do I want google ads. But I would like to have a link to some Legacy quickguides I recently produced. Is that the same thing?

    • Judy G. Russell says:

      As much as I’d like to say no, my question to you is: why wouldn’t it be the same? You’re getting paid for every copy of the quickguide that sells, yes? So you’re using the blog in part to drive traffic to something you sell? The only safe course here is to ask permission.

  2. Lynda Peach says:

    I am not surprised at Judy’s answer to my question, “Given that I have affiliates listed on the site is my site now COMMERCIAL?” If in doubt, treat your site as if it is commercial until confirmed. Because I did that, I have no extra *must do* work.

    I would continue idogenealogy.net if I decide to drop affiliates. I would advise people who art thinking about adding them to investigate first. There are some excellent articles — and this one will be added to a MUST READ — that will give you a good idea of whether you will want to proceed or not.

    Judy — another wonderful article. And a great answer.

  3. Thank you Judy. This was extremely helpful.

  4. Pingback: Found Ephemera – Public Domain Ideas | Moultrie Creek Gazette

  5. Anne Wallingford says:

    Thank you for a thoughtful, well-researched article.

  6. Robert Stewart says:

    Thank you for the article. I was thinking about starting a blog and using some of the things you mentioned. I reached the same conclusion that using ads or other revenue generating items would put it into the commercial fold. Does it follow that having a PayPal Donation link also turns a site commercial?

    Personally, if I do a blog, I would always ask permission on stuff that has the no commercial prohibition. Agree it’s better safe than sorry.

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