Blog Trolls and Commercial Use

Keith Lee at Associate’s Mind has blogged over the last couple of days about the latest law blog ripoff outfit, something called “Lawblogs.net.” Lawblogs is yet another scraper, pulling down posts from other sites and posting them – apparently in their entirety – on its site. Business plan? Sell ads around all of that scraped content, because we know that law blogs are traffic magnets, amirite?

OK, so that’s scummy, sleazy and probably not a high ROI endeavor. It would be much better to scrape photos of kittens, or celebrities, or well, pretty much ANYTHING other than content that is a) lightly-read (to put it charitably) and b) written by people who sue people for a living.

But I digress.

One thing in Keith’s otherwise-excellent recap of finding this troll was this statement about Creative Commons licensing:

For example, Kevin Underhill, author of Lowering The Bar, uses an Attribution-NonCommercial-NoDerivatives 4.0 International Creative Commons license. Meaning that while you can re-publish posts from his blog, they cannot be used for commercial gain. Advertising is commercial gain. As such, displaying any of the content from Lowering The Bar within a website supported by advertising is in violation of the license.

A lot of people believe this about Creative Commons licensing, but here’s the thing: it’s not the case. The fact that a site is monetized by advertising does not mean that the content within the site is “commercial.”  I wrote about this a couple of years back:

The fact that a publisher has a commercial motive does not mean that everything published is likewise commercial.  “Commercial” means that the work itself is resold or incorporated into something that is for sale (although there are plenty of exceptions even then, starting with fair use).  This is a basic legal principle, and it’s been reinforced time and time again.  See, for example, the Dex Media v. City of Seattle case I wrote about earlier.  Or the Browne v. Avvo suit filed by an attorney upset over his rating right after Avvo launched in 2007.  Or the latest Lindsay Lohan lunacy, involving a suit (tossed yesterday) over a reference to the troubled actress in a Pitbull song (“locked up like Lindsay Lohan”).

Obviously, the copyright issues Keith identities would apply to a troll like Lawblogs.net aggregating entire blog posts onto its own site. But absent more specific designation within the CC licensing paradigm that “commercial” means more for CC than it does for traditional first amendment analysis, Creative Commons licensors will have an uphill battle trying to hang their hats on the “no commercial use” exception.