Does Asking for Money on Scribd Negate Creative Commons?

I think it does.

This is a quick post motivated by a balky comment system on Chronicle of Higher Education. There, Prof. Adeline Koh explores options available to scholars who want to make their dissertations publicly available. Koh chose Scribd to distribute her dissertation, Inventing Malayanness: Race, Education and Englishness in Colonial Malaya, and also chose to use the Creative Commons BY-NC-ND. So far, so good. Scribd is a perfectly good channel for distributing non-commercial content; CC BY-NC-ND is a perfectly honorable license for a dissertation. (Though I think CC BY-SA is much better in most use cases.)

But Koh used Scribd to set a download price of $2.99 on her dissertation. She has an absolute right to offer her work for sale under the license she chose. But there's a problem. Asking for money converts the Scribd offering to "Commercial Content", and thus invokes a bunch of provisions of the "Scribd Paid Access End User License Agreement", which users must agree to in order to purchase a download. This agreement states quite clearly

• You may not sell, distribute, or display any Scribd Commercial Content other than for personal use; 
• You may not share, lend, or rent copies of Scribd Commercial Content;
• You may not disable or circumvent DRM supplied with Scribd Commercial Content; 
• You may not make copies of all or any portion of any Scribd Commercial Content;

These conditions are in clear conflict with the specified Creative Commons License, and negate its intent. I am not a lawyer, but I'm pretty sure that if I tried to exercise my Creative Commons rights to a work I purchased from Scribd, Scribd could find a lawyer to sue me for doing so. 

All things considered, I think that use of Scribd in this circumstance is an attack on the integrity of the Creative Commons license. It does not reflect well on Prof. Koh, though she's clearly trying to do the right thing; more academics should be thinking about these issues. If she really wants to apply a Creative Commons license, she should be aware that anyone should be able to take their copy and make it available for download on a non-commercial site such as Internet Archive.

It's a shame that legal ambiguities and technicalities are preventing Creative Commons licenses from being as useful as they might be. Maybe we can get Scribd to clarify the EULA to accommodate situations like this.

Update August 2: Here's the response from Scribd.

Jason (Support Desk) Aug 02 09:30 am (PDT) Hi, The Scribd EULA declares "You may not share, lend, or rent copies of Scribd Commercial Content" under the assumption that most Commercial Content is posted with a standard copyright. Copyright licenses, including any Creative Commons add-ons, are set by the uploader. The uploader is the ultimate authority on a document's distribution license. Scribd takes no position on distribution license set by the uploader. If you have specific questions about copying or redistributing a particular document, please contact the uploader. I suggest leaving a note on the document page and the uploader will be notified. Best regards, Jason Bentley Scribd, Inc. So my answer to "is the CC license negated?" changes to "No, it's just muddied a bit".