Ged,



One of the best illustrations of this principle is the 2002 ruling
of the Federal Circuit Court of Appeals in the case of Madey vs Duke University:

http://cyber.law.harvard.edu/people/tfis...

http://en.wikipedia.org/wiki/John_Madey
http://scholar.google.com/scholar_case?c...


The case involved Duke's University use of a device, that Madey's had patented while working for Duke. 

Duke University argued to be using it for research and hence non-commercial purpose.

The Court pointed out that Duke researchers were salaried employees, that the institutions received indeed funds (in the forms of grants) in order to perform the research, and that was indeed a commercial activity.

In a remarkable quote, the briefing of the case state that the only activities that would be "non-commercial" in this case, would be if the researchers where using the device for:


"for amusement, to satisfy idle curiosity, or for strictly philosophical inquiry."

The full quote:


"In short, regardless of whether a particular institution or entity is engaged in an endeavor for commercial gain, so long as the act is in furtherance of the alleged infringer's legitimate business and is not solely for amusement, to satisfy idle curiosity, or for strictly philosophical inquiry, the act does not qualify for the very narrow and strictly limited experimental use defense. Moreover, the profit or non-profit status of the user is not determinative."

The Court went even further, and stated that:

"For example, major research universities, such as Duke, often sanction and fund research projects with arguably no commercial application whatsoever. However, these projects unmistakably further the institution's legitimate business objectives, including educating [**33] and enlightening students and faculty participating in these projects. These projects also serve, for example, to increase the status of the institution and lure lucrative research grants, students and faculty.


So, as long as the activity furthers the mission of the institution, it is considered a commercial activity.


To their credit, the Creative Commons went through a great effort to define what "non-commercial" means.

http://creativecommons.org/weblog/entry/...
http://wiki.creativecommons.org/Defining...
http://mirrors.creativecommons.org/defin...

They, publishing true Reproducible Science, made available the raw data:
http://mirrors.creativecommons.org/defin...


The Summary:  
Defining "non-commercial" is not a trivial task at all.
It depends on legislation, cultural standards, national backgrounds....


In the words of the Creative Commons:

"The results of the survey provide a starting point for future research. In the specific context of the Creative Commons licenses, the findings suggest some reasons for the ongoing success of Creative Commons NC licenses, rules of thumb for licensors releasing works under NC licenses and licensees using works released under NC licenses, and serve as a reminder to would-be users of the NC licenses to consider carefully the potential societal costs of a decision to restrict commercial use. They also highlight the need for caution when considering whether to modify the CC NC licenses in the course of a license versioning process or otherwise, so that expectations of those using NC licenses are preserved, not broken."
 

     Best,


          Luis