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Re: [gnso-reg-sgc] Commercial vs. Non-commercial

  • To: Christopher Gibson <cgibson@xxxxxxxxxxx>
  • Subject: Re: [gnso-reg-sgc] Commercial vs. Non-commercial
  • From: Wendy Seltzer <wendy@xxxxxxxxxxx>
  • Date: Tue, 22 May 2007 06:28:47 +0100

To clarify my concerns with the commercial vs. non-commercial distinction:

Where does blogger fit who's not selling goods but uses Adwords to
defray the site's hosting costs?  An activist group that sells t-shirts
with its message on them? An author or programmer who provides text or
code online for free and offers printed material or CDs at cost?

They are among the reasons why I think a distinction between commercial
and non-commercial is unworkable.  This debate has been going on in
trademark law for a lot longer than in ICANN, and is far from solved
there.  I don't think we can solve anything by hinging our work on this
murky distinction.

Thanks,
--Wendy

Christopher Gibson wrote:
> As requested during last week's call by the Sub-Group C leaders, Lynn
> Goodendorf and I have provided criteria to address the distinction between
> commercial vs. non-commercial activities.  Lynn and I reviewed a number of
> relevant documents including the EU Directive on Data Protection and the
> APEC Privacy Framework in order to develop the following draft formulation.
> We hope this submission assists the work of Sub-Group C.
> 
>  
> 
> Chris Gibson
> 
> _____________________________________
> 
>  
> 
> Commercial vs. Non-Commercial Activity
> 
...
(2)
> (a) commercial activity means only those activities carried out by natural
> persons which involve:
> 
>  
> 
> (i) the offer or sale of goods or services;
> 
>  
> 
> (ii) the solicitation or collection of money or payments-in-kind for goods
> or services;
> 
>  
> 
> (iii) marketing activities including advertising or sale of advertising
> (e.g., these categories would include websites containing paid hypertext
> links); 
> 
>  
> 
> (iv) all activities carried out by natural persons on behalf of legal
> persons; or
> 
>  
> 
> (v) the collection, holding or processing of personal data (or instructing
> another legal or natural person to collect, hold, process, use, transfer or
> disclose such data), except in the exercise of activities which relate
> exclusively to personal, family, domestic or household affairs, such as
> correspondence or the holding of address books containing family, friends
> and professional contacts.
> 
>  
> 
> (b) non-commercial activity means activities by natural persons which do not
> fall within paragraph (2)(a) above.
> 
>  


-- 
Wendy Seltzer -- wendy@xxxxxxxxxxx
phone: +1.617.418.3456 / +44 (0)1865 287203 // cell: 07785 550361
Visiting Fellow, Oxford Internet Institute
Fellow, Berkman Center for Internet & Society
http://cyber.law.harvard.edu/seltzer.html
http://www.chillingeffects.org/



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