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Enforceability of CC "Non-Commercial" license?

Update: I was able to resolve this issue with Jameco and I now earn a commission on the kit sales. Original post below.
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I'm not sure if this is the right forum to post this, and I realize most responses will probably start with "I am not a lawyer, but...", but I figured it's worth asking.

I publish all my Instructables under the CC Attribution-NonCommercial-ShareAlike license:

http://creativecommons.org/licenses/by-nc-sa/2.5/

http://creativecommons.org/licenses/by-nc-sa/2.5/legalcode

What I had in mind was that I didn't want people trying to sell the content - putting my Instructables in a book and selling it, or behind a pay wall on the internet or whatever (I realize the odds of that happening are probably slim). I figured the odds of anyone actually selling a product based on one of my Instructables were vanishingly small.

However, it turns out that my most popular Instructable:

https://www.instructables.com/id/Arduino-controlled-RGB-LED-Infinity-Mirror/

is now the basis for an Infinity Mirror kit sold by Jameco Electronics:

http://www.jameco.com/webapp/wcs/stores/servlet/Product_10001_10001_2215380_-1

It looks like this was a project by one of their summer interns, who did a "step-by-step guide" (which DOES link to my Instructable as the original source) here:

http://www.jameco.com/Jameco/workshop/JamecoBuilds/infinity-mirror.html

To complicate things a bit, Jameco as a feature called "Club Jameco" where you can design electronics projects (similar to Instructables) with a set bill of materials, and if it's popular enough they will sell it as a kit and give you a comission:

http://clubjameco.com/

I contacted Jameco to let them know that technically I'd published the project under a non-commercial license, so they probably shouldn't have done that without consulting with me (in a very cordial manner, not threatening to sue or anything). Their response was that they thought the intern's work was "different" enough and that she put enough of her own work into the project that it constituted a different product, which I strongly disagree with (the only circuit diagram in her written directions is from my Instructable - all she really did was create a BOM using Jameco parts instead of SparkFun). I would have liked to make this my own Club Jameco project so I could earn commission, but they said they wouldn't want to sell duplicate kits like that.

Realistically, I doubt I'm missing out on huge amounts of cash here (the kits retail for $80 and commission is 10% or so), so I'm in no hurry to go hire a lawyer. I'm just curious about the enforceability of Creative Commons licenses in general. Do I have the right to just tell them "Hey, you actually can't do that, because the license says so?" In theory, would I actually need to hire a lawyer and send them some sort of scary-looking cease-and-desist letter?

So again, I know most Instructables users probably can't give actual legal advice...just curious if anyone else has had a similar experience. I'm sure content gets ripped off without attribution quite a bit, violating the "Attribution" and "Share-Alike" clauses of the CC license.

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slullin1 month ago

Hey,

Yeah old post over here, never mind.

You guys are talking about licensing the content. I would have a question regarding the physical product; What if I use an instructable to build for example a clock, I change a bit the design and functions, and then sell it (the clock, not the instructions whatsoever). does the CC license cover only the content on instructables or does it also cover the final product I would build? (my target being to sell ONE clock per year...)

Cheers

Simon

Kiteman slullin1 month ago

The exact answer depends on your local law (licensing, copyright and maybe contract), but for your product to not be affected by another's license is for you to make "substantial changes", which is one of those vague, ill-defined phrases that keeps lawyers in doughnuts for years.

Your best option is to contact the creator of the original item and ask nicely - most authors here will be happy to accommodate you in some mutually-beneficial way.

slullin Kiteman1 month ago

Did I understand you correctly? the way the CC license covers the instructable depends of the country I'm in? Again, does the CC licence protect (for example in the USA) the instructable, or the object built in the instructable.

(other example: if the instructable is a cake recipe, and you sell the cake to finance a school trip, you are for sure not breaking the CC non-commercial. Right? I'm not selling the recipe! )

Thanks for your help KiteMan :-)

Kiteman slullin1 month ago

Remembering I am not a lawyer, and not an employee of the site...

As I understand it, the license covers the instructable, the photos and the final product.

Using the CC license, you can share the instructable (as long as you credit the source) and make it as often as you like, as long as you do not profit from sharing the project, or from making the project (so you can make the cakes, then sell them for the cost of the ingredients and the energy used in making it, but no more).

If we're realistic, it would be next to impossible for the project's author to find out that you have profited from their work, especially if you do everything offline (such as, to stick with your example, selling the cakes at school and not advertising online), but, all licenses and laws aside, the "right" thing to do would be to talk to the project's creator and ask their permission. As I said, the vast majority of authors are good folk, especially if you explain that it's for a good cause.

Some authors publish and then stop using the site - if you try to contact them, but get no response after a reasonable length of time, then go ahead with your bake-sale; you tried your best, your conscience is clear.

Ben Finio (author)  slullin1 month ago

Answering for myself personally - if you were making something based on one of my projects and selling it to a friend a few times a year, I wouldn't care, and even if I did I would probably never find out about it. If you were selling my exact design online like Jameco was, then I'd have an issue. Like Kiteman said, the exact legal answer will probably vary by region or country.

Just out of curiosity, what was the outcome of the Jameco thing?

Ben Finio (author)  ThirdEarthDesign1 month ago

I actually worked it out with them and now I get a commission on the kit (I've updated the top of this post to reflect that). I bugged them about it again a year or so later and a different employee answered my email (the previous guy didn't work there anymore) and agreed with my original argument. If I had been more persistent with the first guy I might have gotten through, but the amount of money was so small I didn't think it was worth the effort.

makendo2 years ago

Yep, content does get ripped off. I've seen my cube for sale for example, and never with any attribution. I've never bothered to follow up. And of course, you'll see your content all over other blog-type sites where they're monetizing your content through advertising and often attribution is not to your instructable but to whatever site they found it on. All of this is irritating but I basically accept it comes with the territory and do my best to make sure I accurately credit my own sources of inspiration (not always to everyone's satisfaction, see my eyeball ible for example). Books and TV shows (Japanese ones, anyway) seem to be the best at asking permission and remunerating you; the internet never seems to bother.

Not at all impressed with Jameco's response. They know full well their intern ripped off your content; the right thing to do would be to give you the commission on that project.

Ben Finio (author)  makendo2 years ago

Yea, I've seen occasional repost-style ripoffs of the content, but many of those at least link back to the original Instructable (even if they don't explicitly mention the CC license) so I'm generally OK with it. I'm a little disappointed in Jameco here but my suspicion is that it's just a) a lack of supervision of the intern to begin with and b) the guy who responded to my email probably didn't bother reading through the intern's post and my Instructable in full to see how similar they really are. I'd be pretty surprised if it's intentional "stealing" on their part.

Kiteman2 years ago

My opinion is that, although the wording used by the intern may be different to yours, the intent and final product are effectively identical, and they use your wiring diagram.

Also, I didn't look at the code - how close is it to yours?

If it was me, I'd insist on the project being published according to your licence, meaning that all adverts and links to Jameco shop pages be removed from their version to comply with the "NC/SA" part of the license.

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