As you pointed out, many software license agreements fail to describe what falls under non-commerical use. For many years this has actually been a grey area in the IP world and the non-profit heavyweight Creative Commons released a 255-page reporton the issue in 2009 to address it. The report listed 9 “Qualitative Research Consideration Factors” to consider when analyzing non-commercial use:
- Perceived economic value of the content
- The status of the user as an individual, an amateur or professional, a for-profit or not-for-profit organization, etc.
- Whether the use makes money (and if so, whether revenues are profit or recovery of costs
associated with use) - Whether the use generates promotional value for the creator or the user
- Whether the use is personal or private
- Whether the use is for a charitable purpose or other social or public good
- Whether the use is supported by advertising or not
- Whether the content is used in part or in whole
- Whether the use has an impact on the market or is by a competitor
As you can see there are a bunch of things to consider. When an area of law is so uncertain, it’s always wise to talk to an attorney. You should take a look at LawTrades, a legal platform designed for small businesses and startups. I think we’d be a good fit to help you out as our lawyers offer affordable, flat-fee pricing on contract reviews. Feel free to message me with any questions as well!
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