Creative Commons BY-NC-SA hypothetical
May 24, 2024 4:11 PM Subscribe
There's an Arduino library called Mozzi. Its license is CC BY-NC-SA. I'm curious about the NC (non-commercial) aspect. Mozzi is a library for generating sound. If one were to build a sound synthesizer around an Arduino running Mozzi, could one sell that device?
I guess my question boils down to: does the license apply only to the source code, or does it also apply to compiled images?
I guess my question boils down to: does the license apply only to the source code, or does it also apply to compiled images?
Best answer: (Not a lawyer, not legal advice.)
I believe the answer is "no", per the text of the CC BY-NC-SA license. Under copyright law, the compiled binary form of the library (which you would need to copy and distribute in order to sell your product) is a "derivative work" of the source code. The CC license also uses the term "Adapted Material" to cover roughly the same thing.
Distributing derivative works requires permission from the copyright owner, just like distributing unmodified copies. This particular CC license gives you permission to distribute either the original source code or the derived binary code, but the same non-commercial terms apply to both. (Other CC licenses may differ, e.g. a license with the "No-Derivatives" clause would ban derivative works entirely.)
The Creative Commons organization's FAQ has a guide explaining more specifically what, in their opinion, counts as "non-commercial use". This guide is not legally binding, but it gives you an idea of what they were thinking and how they intended the license text to be interpreted when they created it.
This doesn't unequivocally mean that you could never sell a product that uses this library. In theory, nothing prevents you from contacting the copyright holder and negotiating a separate license from them, which does allow commercial use. In practice, this could be difficult, because you have to get permission from every single author who has ever materially contributed to the codebase.
posted by teraflop at 5:05 PM on May 24 [3 favorites]
I believe the answer is "no", per the text of the CC BY-NC-SA license. Under copyright law, the compiled binary form of the library (which you would need to copy and distribute in order to sell your product) is a "derivative work" of the source code. The CC license also uses the term "Adapted Material" to cover roughly the same thing.
Distributing derivative works requires permission from the copyright owner, just like distributing unmodified copies. This particular CC license gives you permission to distribute either the original source code or the derived binary code, but the same non-commercial terms apply to both. (Other CC licenses may differ, e.g. a license with the "No-Derivatives" clause would ban derivative works entirely.)
The Creative Commons organization's FAQ has a guide explaining more specifically what, in their opinion, counts as "non-commercial use". This guide is not legally binding, but it gives you an idea of what they were thinking and how they intended the license text to be interpreted when they created it.
This doesn't unequivocally mean that you could never sell a product that uses this library. In theory, nothing prevents you from contacting the copyright holder and negotiating a separate license from them, which does allow commercial use. In practice, this could be difficult, because you have to get permission from every single author who has ever materially contributed to the codebase.
posted by teraflop at 5:05 PM on May 24 [3 favorites]
Best answer: I would just bring it up on the Mozzi discussion boards, particularly if there is one aimed more at the developers/contributors who would be the decision-makers here. If you explain what you are doing and how it would fit under the non-commercial license and/or ask them how it should be structured in order to fit under the current license, they might have helpful advice.
If you are planning to sell the boards with an aim to making a profit, that would certainly fall under the category of "commercial". On the other hand if you are more planning to produce a fairly limited amount of the boards intended for hobbyist use and your goal is to recover your costs of the project rather than make a profit per se, then I would say that falls under the CC definition of "noncommercial" that teraflop linked above. Still, I would bring this up on the discussion boards and try to develop a consensus that this would be allowable under the license.
On the flip side, if you are indeed aiming to make a profit, then I would still bring it up. There are only 30 contributors to the project and my sense is, they might be open to "licensing" the project if you were to contribute a set amount of each unit sold towards either the project itself or perhaps some cause they would support.
Personally if I were doing this I would be aiming more towards the "hobby/cost recovery/no profit" end of the spectrum and I would be surprised if anyone objected strongly to you doing that. It's one thing if a giant mega-corp grabs your code and uses it to sell 10s of thousands of units and make millions. It's quite another if a hobbyist makes a few dozen or even a couple hundred units on a cost-recovery basis.
Yet another possibility (don't know if it is technically possible in your situation - maybe not) would be to sell 'Mozzi-ready' boards, which don't include the code (not even the compiled version) but include instructions for the end-user to download Mozzi, compile the code themselves, and then (somehow) add it to the board.
I've bought/used lots of this type of thing - where the unit is indeed sold at a profit (though most of the ones I've seen have leaned strongly towards the hobbyist end of the spectrum), it doesn't include any open source or CC software, but it does include sometimes very detailed instructions about how to get, install, and set up the open source software in order to use it with the gadget.
posted by flug at 6:06 PM on May 24 [4 favorites]
If you are planning to sell the boards with an aim to making a profit, that would certainly fall under the category of "commercial". On the other hand if you are more planning to produce a fairly limited amount of the boards intended for hobbyist use and your goal is to recover your costs of the project rather than make a profit per se, then I would say that falls under the CC definition of "noncommercial" that teraflop linked above. Still, I would bring this up on the discussion boards and try to develop a consensus that this would be allowable under the license.
On the flip side, if you are indeed aiming to make a profit, then I would still bring it up. There are only 30 contributors to the project and my sense is, they might be open to "licensing" the project if you were to contribute a set amount of each unit sold towards either the project itself or perhaps some cause they would support.
Personally if I were doing this I would be aiming more towards the "hobby/cost recovery/no profit" end of the spectrum and I would be surprised if anyone objected strongly to you doing that. It's one thing if a giant mega-corp grabs your code and uses it to sell 10s of thousands of units and make millions. It's quite another if a hobbyist makes a few dozen or even a couple hundred units on a cost-recovery basis.
Yet another possibility (don't know if it is technically possible in your situation - maybe not) would be to sell 'Mozzi-ready' boards, which don't include the code (not even the compiled version) but include instructions for the end-user to download Mozzi, compile the code themselves, and then (somehow) add it to the board.
I've bought/used lots of this type of thing - where the unit is indeed sold at a profit (though most of the ones I've seen have leaned strongly towards the hobbyist end of the spectrum), it doesn't include any open source or CC software, but it does include sometimes very detailed instructions about how to get, install, and set up the open source software in order to use it with the gadget.
posted by flug at 6:06 PM on May 24 [4 favorites]
Best answer: As it happens, Tim Barrass, the developer of Mozzi answered this exact question - https://groups.google.com/g/mozzi-users/c/7EAcaHGia6I/m/rwIbhh4vtqQJ
The way I understand the license is that if someone wants to sell a product which includes Mozzi or a modified version of Mozzi in its distribution, they would ask permission and possibly we would negotiate an agreement.posted by Nonsteroidal Anti-Inflammatory Drug at 6:42 PM on May 24 [7 favorites]
On the other hand, you could sell something which works with Mozzi but doesn't include it in the distribution, so that people can access Mozzi or a modified version for free and use it themselves with your product.
This might give clearer answers... https://wiki.creativecommons.org/Frequently_Asked_Questions
One of the reasons I've licensed it this way (Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License) is to protect against my work being sold unacknowledged as well as unpaid, as if it was the work of the people marketing it, which happened under GPL3.
Tim
Maybe the Arduino Playground's Audio section may lead you somewhere that's NOT Mozzi related...
https://playground.arduino.cc/Main/InterfacingWithHardware/#Audio
posted by kschang at 11:09 PM on May 24 [1 favorite]
https://playground.arduino.cc/Main/InterfacingWithHardware/#Audio
posted by kschang at 11:09 PM on May 24 [1 favorite]
If one were to build a sound synthesizer around an Arduino running Mozzi, could one sell that device?
Can't see why not, as long as you're not also trying to make money off the software that runs on it. The folks who make and sell the Raspberry Pi are not breaking the licensing terms of any of the systems or application software that can run on that, much of which is under more restrictive public licenses than CC BY-NC-SA, even though they also make available considerable amounts of such software packaged up as freely downloadable Raspberry Pi OS images.
The key to keeping that option legal would be to make no attempt to restrict the distribution of such images only to people who have actually bought your hardware.
posted by flabdablet at 4:40 AM on May 25 [1 favorite]
Can't see why not, as long as you're not also trying to make money off the software that runs on it. The folks who make and sell the Raspberry Pi are not breaking the licensing terms of any of the systems or application software that can run on that, much of which is under more restrictive public licenses than CC BY-NC-SA, even though they also make available considerable amounts of such software packaged up as freely downloadable Raspberry Pi OS images.
The key to keeping that option legal would be to make no attempt to restrict the distribution of such images only to people who have actually bought your hardware.
posted by flabdablet at 4:40 AM on May 25 [1 favorite]
Response by poster: > Can't see why not, as long as you're not also trying to make money off the software that runs on it.
I was having trouble understanding how that could even work. I mean, if I'm selling a device for profit, the software powering it is presumably part of the value proposition so how can I avoid "trying to make money off the software"? But I think you're saying I could sell the device+software as long as I also made the software freely available. 'Cuz then I'm saying the value of my Mozzi-based software is $0, so ipso facto non-commercial. Do I have that right?
Of course this is all moot in this specific case since we know Mr. Barrass's thoughts on the matter.
posted by mpark at 7:55 AM on May 25
I was having trouble understanding how that could even work. I mean, if I'm selling a device for profit, the software powering it is presumably part of the value proposition so how can I avoid "trying to make money off the software"? But I think you're saying I could sell the device+software as long as I also made the software freely available. 'Cuz then I'm saying the value of my Mozzi-based software is $0, so ipso facto non-commercial. Do I have that right?
Of course this is all moot in this specific case since we know Mr. Barrass's thoughts on the matter.
posted by mpark at 7:55 AM on May 25
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posted by mpark at 4:14 PM on May 24