Definition of 'commercial use'

[Stuart Mitchell]

From OpenDesk website:

"It is commercial use if you plan to:

• pay a professional to make it for you
  
• sell the design or resultant product"
  

I must say I find it rather strange that paying to having someone fabricate the parts for this table is now considered 'commercial use'. Frankly, that is nonsense and will greatly limit the use of the designs by those to whom they are, in no small way, intended. 

Your banner "Fit out your work space with open furniture" and the provision of cafe, desk and meeting tables tends to indicate a target market of cafes, schools and offices. Not many of these have CNC routers so, any wanting to use these, will be in breach of your rules as they will need to engage a 3rd party fabricator. Further, anyone, like me, who wanted to make the tables for personal use, but using the services of a fabricator to cut parts on their behalf, is no longer eligible to do so.

What is even more strange is the fact that you list, on your website, contact details for a number of professional fabrication shops which, one can only assume, expect to be paid for their services, thus breaching 'commercial use' provisions.

Very, very strange!!!

Regards....Stuart

[Scott Bennett]

My company is one of those commercial fabricators listed on the site. To do that, we signed a commercial use agreement. If you ask us to quote you for an OpenDesk, part of that price is a royalty we pay to OpenDesk, to compensate them for the project, pay for the site, pay the designer, etc. It's only fair that if we make a profit on the product, they should get a piece of it. 

Now if you download the design and take it to Bob's CNC down the road, they can quote it for 25% less than we can, because they can stiff OpenDesk on the royalty. If someone is profiting from the design (because money is changing hands), then it's commercial use. If it's commercial use, the IP holder deserves to receive a fair share of the profit.

If I make one on my CNC (or you use the local Fablab), and stick it in my office, no money changed hands, so it's not commercial use. Any percentage royalty on $0 is $0. Seems pretty obvious to me.

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[Stuart Mitchell]

Scott, 

I am so pleased that it "all seems pretty obvious" to you!

• The Open Desk website states "This design is offered to make for non-commercial use " Paying you to make it is, under their definition, 'commercial use' and, therefore, under the terms quoted, not permitted. It does not differentiate between those organisations that have entered into a license agreement and those that haven't.
  
• If I spend a considerable amount of money buying a CNC router, I can make as many of these designs as I wish and don't pay a licence fee. Instead, I get you to make it for me and there is now a licence fee payable. Should the supplier of the CNC router pay a licence fee based on the % of the  time I spend using the router to make OpenDesk items?
• A fee is payable for access to the design and, apparently, for the securing of CNC services. This is far from my, and most people's understanding, of what Open Source is. This is becoming a straightforward, commercial sale transaction. 
• What is the licence fee that you pay? From experience, this could be seen as a 'secret commission' (in many countries) to Open Desk if it is not disclosed that a) they are getting one and b) what it is.

This is not as simple as you think. Needs considerable further discussion. This will turn off a large number of potential users.

Stuart

[James Arthur]

Hi Stuart,

We have tried to clarify license restrictions and their meaning on both the new design pages and the lead in to the https://www.opendesk.cc/how-it-works/non-commercial-use page.  I realise that me may not be there yet both in terms of interpretation and communication.

Stepping back for a second: our intention is to make a viable business model for open making.  In this, we want to support both open source and proprietary / non-commercial designs (much as github supports public and private repos) and we want to charge a fee (split between us and the designer) when designs are made commercially.

So... that's the intent and we hope it's a consistent position.  If not, we need to change it.  Now, on your specific points:

> The Open Desk website states "This design is offered to make for non-commercial use " Paying you to make it is, under their definition, 'commercial use' and, therefore, under the terms quoted, not permitted.

You are correct that the design that you download is offered under a specific license (nearly all CC-BY-NC) and this precludes commercial use (the NC bit).  That's precisely why you'd go to a maker who has a commercial license to the design to make it commercially.  In a sense, the distinction is that you're not brining your NC licensed download to the maker, you're asking for them to make their C licensed version for you.

(This is also why, for paid downloads, the fee is different to download and to make commercially: the download price buys NC use, the commercial royalty buys C use).

> A fee is payable for access to the design and, apparently, for the securing of CNC services. This is far from my, and most people's understanding, of what Open Source is.

Open source does not imply free as in beer: it's quite common to e.g.: buy an MIT licence to some code.  However, you're absolutely right than restricting commercial use does not count as open source.  We were called on this by the Hacker News crowd last year when we initially launched as "Open Source Furniture" -- after which we stopping using the term.

We're trying to clarify this support both open source and non-commercial licenses.  With designs that are released open source on OpenDesk (and I'm shipping our first CC Zero design today!) there are no commercial use restrictions.  With designs that restrict commercial use, these don't count as open source and we will charge a royalty through our maker network.

FWIW, I'm also in process of trying to document what we mean by "Open" on http://www.openmaking.is  I have two draft posts in progress, one on open making and one on the distinction between open making and open source.  I'd love feedback on these and / or any contributions you'd like to make to help define and document what open making should be: http://www.openmaking.is/contribute/

> What is the licence fee that you pay? From experience, this could be seen as a 'secret commission' (in many countries) to Open Desk if it is not disclosed that a) they are getting one and b) what it is.

We have tried to document stuff on, e.g.: https://www.opendesk.cc/open/join/designer, https://www.opendesk.cc/open/join/maker and https://www.opendesk.cc/open/join/model  However you're dead right: the pricing isn't transparent enough yet.  This really is a factor of my capacity rather than intent to be murky.  We have new UI designs for pricing and checkout and I've already implemented a better data model behind it.  I just need some time to ship...

There's loads more I could say and I'd be very happy to go into as much depth as possible: it's hugely important we get this right and are at least clear about what we're trying to do.  You've been one of the most active and supportive members of the OD community for a long time and the last thing any of us here would want to do is let you down with the way we're trying to navigate the path between the benefits of open and the necessity of a business model.

Thanks,

James.

[Stuart Mitchell]

James,

many thanks for the comprehensive response. Please see comments below:

On Friday, 23 May 2014 17:51:57 UTC+10, James Arthur wrote:

Hi Stuart,

We have tried to clarify license restrictions and their meaning on both the new design pages and the lead in to the https://www.opendesk.cc/how-it-works/non-commercial-use page.  I realise that me may not be there yet both in terms of interpretation and communication.

Stepping back for a second: our intention is to make a viable business model for open making.  In this, we want to support both open source and proprietary / non-commercial designs (much as github supports public and private repos) and we want to charge a fee (split between us and the designer) when designs are made commercially. 

Have absolutely no objection to a fee being passed to the designer in the event of one of their designs being produced and sold for a 'profit'. I do have an issue where those with ownership of a CNC Router are treated differently to those who don't and are required to engage the services of a third party to carry out fabrication of parts on their behalf. 

Where an individual purchases drawings for a particular item and proactively engages a fabricator then I feel the fact that the fabricator generates a profit on the provision of their services is irrelevant. In the almost exclusive majority of cases, the fabricator will merely charge his standard rate, not an increased rate that is the result of fabricating this specific design. I am strongly of the belief that the end use of the product (i.e. personal use or sale) should be the sole determinant of whether a use is commercial or not. Where a fabricator actively promotes his/her services in relation to your designs, then that has become a commercial venture on his/her part and should warrant payment of a license fee.

So... that's the intent and we hope it's a consistent position.  If not, we need to change it.  Now, on your specific points:

> The Open Desk website states "This design is offered to make for non-commercial use " Paying you to make it is, under their definition, 'commercial use' and, therefore, under the terms quoted, not permitted.

You are correct that the design that you download is offered under a specific license (nearly all CC-BY-NC) and this precludes commercial use (the NC bit).  That's precisely why you'd go to a maker who has a commercial license to the design to make it commercially.  In a sense, the distinction is that you're not brining your NC licensed download to the maker, you're asking for them to make their C licensed version for you.

Firstly, the website does not seem to differentiate between licensed and unlicensed fabricators. As above, the CNC-less downloader of the design is financially disadvantaged as a result. Also, my knowledge of international markets is limited but I know, in many, the licence fee payable by the fabricator would fall into the category of a 'hidden commission' given the fact that the imposing of a license fee is not revealed to the owner of the NC license, nor is the quantum of that amount. It will also be a clear case of '3rd party forcing' where you sell me a licence to use a design but make that conditional on my using a 3rd party (not party to the initial license agreement) and, especially, one who's rate is above prevailing market rates (due to the license fee impost). 

To complicate things further, this requirement for fabricators to pay a license fee to you will significantly reduce their likelihood to participate, particularly those of higher skill levels. From my experience, good fabricators are few and far between and will avoid this work if it means additional administrative workload. In a country the size of ours, your nominated fabricators will, in many cases, be some distance away and not practical to use. Further, the payment of the initial license fee and the fabricator's license fee (the client always pays!) may render the production cost unsustainable to many.

One last thing!! If you 'require' the use of certain fabricators, you place yourself at some risk where said fabricator does not deliver a sufficiently high quality of work, given that, it could be argued, you have 'recommended' them.

My very strong suggestion is that you eliminate the payment of license fees by those fabricators who are proactively approached with a request for CNC services. 

 

(This is also why, for paid downloads, the fee is different to download and to make commercially: the download price buys NC use, the commercial royalty buys C use).

> A fee is payable for access to the design and, apparently, for the securing of CNC services. This is far from my, and most people's understanding, of what Open Source is.

Open source does not imply free as in beer: it's quite common to e.g.: buy an MIT licence to some code.  However, you're absolutely right than restricting commercial use does not count as open source.  We were called on this by the Hacker News crowd last year when we initially launched as "Open Source Furniture" -- after which we stopping using the term.

I would tend to argue that open source does imply 'free' although I appreciate that many open source items do attract a code. I suspect that there is 'Open Source' where the source code is sold to enable further software development and 'Open Source' where designs, software (Libre Office, Gimp) are made available free of charge. In broad terms, I think you fall more towards the latter category.

We're trying to clarify this support both open source and non-commercial licenses.  With designs that are released open source on OpenDesk (and I'm shipping our first CC Zero design today!) there are no commercial use restrictions.  With designs that restrict commercial use, these don't count as open source and we will charge a royalty through our maker network.

FWIW, I'm also in process of trying to document what we mean by "Open" on http://www.openmaking.is  I have two draft posts in progress, one on open making and one on the distinction between open making and open source.  I'd love feedback on these and / or any contributions you'd like to make to help define and document what open making should be: http://www.openmaking.is/contribute/

 

Will certainly have a look and get back to you. 

> What is the licence fee that you pay? From experience, this could be seen as a 'secret commission' (in many countries) to Open Desk if it is not disclosed that a) they are getting one and b) what it is.

We have tried to document stuff on, e.g.: https://www.opendesk.cc/open/join/designer, https://www.opendesk.cc/open/join/maker and https://www.opendesk.cc/open/join/model  However you're dead right: the pricing isn't transparent enough yet.  This really is a factor of my capacity rather than intent to be murky.  We have new UI designs for pricing and checkout and I've already implemented a better data model behind it.  I just need some time to ship...

There's loads more I could say and I'd be very happy to go into as much depth as possible: it's hugely important we get this right and are at least clear about what we're trying to do.  You've been one of the most active and supportive members of the OD community for a long time and the last thing any of us here would want to do is let you down with the way we're trying to navigate the path between the benefits of open and the necessity of a business model.

Please don't misinterpret my whinging! I sympathise greatly with the position in which you find yourself. It's just that I have significant experience in this area and I do not want to see you guys fall into any potholes if possible. I think if you eliminate this treatment of the fabricator's profit as a commercial use, then I think you alleviate a lot of your problems. It will also make the whole process a lot more simple and will encourage greater take-up rates.  

Mate, keep up the good work!!!

Cheers....Stuart

[James Arthur]

Hi Stuart,

Some serious discussion this end.  We see the force of what you're saying both re: fabricator's profit as a commercial use and explicit commercial licensing.

I suspect we'll chew over and revisit next week.

James.

[James Arthur]

Hi Stuart,

Apologies for radio silence.  I want to get to a consistent position on this but probably need to get through the next couple of weeks work before I can address properly.

In meantime, one key distinction that bears on your situation (no CNC but NC use): we distinguished between going to a fab lab and using a pro maker.  For us, going to a fab lab, buying e.g.: material and machine time and even working with a machine supervisor was still absolutely fine as NC use.  Where we saw the line was QA / warranty for the product.

I.e.: imagine there's a silly error with the resulting product (used the wrong drill bit / material thickness / wrong sheet alignment, etc.).  If this your problem then that equates to "making it yourself" so that would be NC use.  No matter how much you pay the fab lab.  If this is the maker's problem, i.e.: they warranty the quality of the end product, then that's NC use because the maker is making a commercial profit from the design.

Whether this holds up / makes sense (it's pretty arbitrary where you draw the line) I think still needs consideration but it was our candidate position to allow non-CNC owners to "make it yourself".

James.

[Rob Malvisi]

I have to agree with the OP.

I love the furniture here, and was planning to find a local CNC outfit to provide me with the service of cutting out parts for my desk. I can't. The likelihood of finding a local outfit willing to go through the process of becoming a pro maker, just to cut one desk for my personal use? Slim to none I imagine. There are no fab labs where I live (South Wales).

Perhaps more pertinent to this argument, I would be approaching them for a service, not a product. I would be supplying them with the design files to be cut. If the desk turns out not to be what I wanted or expected, I will blame myself or opendesk, not the maker as it would not be as a result of his supplied service, which ended when the parts were cut accurately. I will ask for a cost for the service, which may or may not include the raw materials (I actually wanted to use a veneered ply, so would probably have to supply myself). I don't expect be be supplied with a desk, but simply a series of parts.

If I use a maker on opendesk, and simply hit a buy it now button, here I am buying a product professionally supplied, with the raised expectations this brings. Here the premium in the price would necessarily include a fee for the designer, and a fee over and above the cutting service for the maker for supplying a finished product, flat pack or not.

[James Arthur]

Hi Rob,

Absolutely take your point and we will address this.  In the meantime:

a) I know that our other UK makers will happily deliver to south wales

b) no problem at all if you just want to cut one cut at a local maker (we're not going to chase you for a royalty payment)

c) it's free and takes a minute or so for a local maker to join the network and then they're likely to pick up more work through us

James.

[Stuart Mitchell]

Hi,

a couple of observations in red.

Cheers...Stuart

On Thursday, 19 June 2014 01:33:46 UTC+10, James Arthur wrote:

Hi Rob,

Absolutely take your point and we will address this.  In the meantime:

a) I know that our other UK makers will happily deliver to south wales Significant cost involved I would have thought.

b) no problem at all if you just want to cut one cut at a local maker (we're not going to chase you for a royalty payment) To clarify, are there now no obligations on CNC shops to pay a royalty?

c) it's free and takes a minute or so for a local maker to join the network and then they're likely to pick up more work through us Not sure about British (or other) makers, but here in Australia, the vast majority wouldn't go to the effort regardless of it being free to register. Most of them are reasonable busy and, assuming they still need to pay a licence fee, would be put off by the admin effort.

[Rob Malvisi]

James & Stuart,

Thanks both. I've added my comments in blue.

Rob

On Friday, 20 June 2014 09:01:17 UTC+1, Stuart Mitchell wrote:

Hi,

a couple of observations in red.

Cheers...Stuart

On Thursday, 19 June 2014 01:33:46 UTC+10, James Arthur wrote:

Hi Rob,

Absolutely take your point and we will address this.  In the meantime:

a) I know that our other UK makers will happily deliver to south wales Significant cost involved I would have thought. Rather than cost being the barrier to me, it is more that I wanted to keep it local, and to be more involved in the process.

b) no problem at all if you just want to cut one cut at a local maker (we're not going to chase you for a royalty payment) To clarify, are there now no obligations on CNC shops to pay a royalty? I agree, this is the critical point that needs clarification. I don't want to do it on the basis it is a minor transgression for which I won't be pursued, I want to do it within the licensing terms. Why not have a middle option, to simply pay a lesser fee to the designer and opendesk, for personal rather than commercial use?

c) it's free and takes a minute or so for a local maker to join the network and then they're likely to pick up more work through us Not sure about British (or other) makers, but here in Australia, the vast majority wouldn't go to the effort regardless of it being free to register. Most of them are reasonable busy and, assuming they still need to pay a licence fee, would be put off by the admin effort. I agree again, the fact that it is easy to join the network is not the issue (though the administration involved with fees might be discouraging). Convincing a local maker who currently does all of their business offline and mostly business to business to take an interest in an online business to consumer transaction is not going to be an easy sell. Some might be interested, but not likely as a result of my one desk.

[Federico Noferi]

I completely agree with you...

The common sense of commercial use is that if I earn money by selling the design/product it's a commercial use. Going to a CNC service providing the the DXF and paying for the cut it's very hardly considered a commercial use of the design. If the CNC service provider is proposing OpenDesk designs to its own customers (or on its shop/website) than this is a commercial use of your design by the CNC service.

In many countries there are no fablabs, so the CNC services are the only option and convincing them to sign-up with OpenDesk would be virtually impossible: language barriers, time availability, interest in selling design/products are all good reasons for service providers to avoid sign-up. Most CNC service providers do just that: get the design, make the cut, stop. Only those professional providers already interested also in the design of products would have the interest to be part of OpenDesk commercial network.

 I've an home made CNC, so it's not my direct problem (even if for bigger design I would need a professional CNC service and there are no fablab here around).

To summarize: if a user goes to a CNC service provider with the design to have its cuts done, I think it's not commercial use. If the CNC service provider proposes directly the designs/final products as part of its offering, than it's commercial use.

Bau Bau

Fede