What constitutes non-commercial?

Question

Although I understand this site is by no means a place for legal advice, and I'm not looking for any lawyers to step up and defend their cases, I'm certain that there are other programmers out there who have dealt with this and can share their thoughts and experiences.

My general question is, what constitutes non-commercial? If some software allows for you to use it non-commercially, what is the general assumptions about what you can and cannot do?

Specifically:

• If I go and sell my software on the internet, I'm assuming this constitutes commercial use.
• If I put all of my code on an open-source hosting site, or upload my application somewhere for anyone to download, I'm assuming that this constitutes non-commercial use.
• But, what if I host it on my own site, and place a "Donate" link on the page?
• What if I place a "Donate" link within my software itself?
• What if I host it on my own site, and host advertisements on the site as well?

As a student, I have access to a lot of "academic" licenses to products, such as Visual Studio and Resharper. I would like the products of my tinkering to be available to the general public, and am not looking to make profits off any of it - if donations/ads could just pay off the cost of hosting my site, that would be great.

Answer 1

My assumption -- and IANAL etc. -- is that if a monetary exchange is required in order to obtain the software, that is commercial use.

Answer 2

You can get paid both ways, but the key difference is selling software vs services.

Take the Red Hat business model. They give you Linux, which is open source. They can't make money commercially by selling it. However, they can and do sell services and support for the product.

Commercial use would be saying donate me money in return for me giving you this software.

Non-commercial use would be saying donate me money to pay for the time it took to package this software, give it to you, and for the time you take when you send me emails asking me how to get it installed/running, but the software is free.

Donations and ads should not violate this.

• I am not a lawyer and cannot give legal advice.

Answer 3

I'm also not a lawyer, but I would say that if a license prohibits commercial use that goes well beyond just prohibiting selling the software. It seems to me that it would prohibit using the software in any way to make a profit, including using it entirely internally as part of running a for-profit business. Of course there are going to be some gray areas there...

I'd say that accepting donations for something you do that using the software is important to is skirting the line if you want to err on the side of caution, but that practically speaking it is very unlikely anyone would bother you about it unless what you were doing was very high profile, or the donations were an obvious fig-leaf for a profit-making activity. But the standard disclaimer applies: I am not a lawyer.

Answer 4

I'm also not a lawyer, but first check each license for any definition of "non-commercial"; the fair use of their software is subject to their license's definition of non-commercial rather than any general concept. It's usually in there in the fine print. It may not be explicitly laid out as a definition, but rather in the parts that handle rights restrictions. For example, the Creative Commons non-commercial license says,

You may not exercise any of the rights granted to You in Section 3 above in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation.

If it is not explicitly laid out in the terms of the license, it would have to be decided by the laws where the license is being enforced; this could mean the place where the license was issued, where the company is primarily located or where any infringement is litigated. This part is a little creepy, because a company could choose to sue you in a state with very restrictive interpretations (venue shopping).

Creative Commons actually has gone to some length to find out what rights-holders think "non-commercial" means. Their report can be viewed here.

I have never heard of any company going after an individual for using educationally licensed software for commercial purposes. The only litigation I've ever heard of is over pirated copies or completely unlicensed copies being run on corporate systems. I just don't think it's worth anyone's time.

Answer 5

I am a lawyer, but you take these comments as you find them - it's not legal advce, blah, blah.

This is a question which doesn't permit a defintive answer but I'd say that commercial use means any use in connection with a commercial activity. In other words, it's about the context in which you operate, not the specific use. So, when I source software, even if it's somehting I'm just 'playing with', I regard it as commercial use. All this stuff about how you get any money is largely irrelevant for most people who work in a business

If you are a student, then there is a secondary question of whether any revenue generating actvity is sufficient to tip you into the commercial arena. For software licence purposes, I'd say it is.

Answer 6

IANAL - but it is obvious that if you have the standard academic license as you can viewed on the net, the two products you mentioned essentially do prohibit ANY use apart from entirely personal/academic learning on a single copy, anyhow, not just commercial use. Beyond that, I think what you're describing - donations for software - can probably already be seen as commercial use.

But you can actually easily do what you want with other tool kits... look around, its very easy if you're not terribly picky. Use visual studio express, port things to Mono, enter Java...