Derek Slater of A Copyfighter's Musings responds to some of my questions (Compulsory Licensing - What is Noncommercial Use?) regarding the commercial/noncommercial distinction in many compulsory licensing schemes (More on Commercial/Noncommercial, Public/Private). He suggests that banning all tip jar people and affiliate people would be overbroad and that we should set some dollar value for such income below which your sharing would not be considered commercial - all to be enforced through a record-keeping and audit program. Frankly, I think the tracking requirements would be so onerous it would be better if we simply banned people who wanted to share from using tip jars and affiliate programs.
Derek would also leave webhosting services with advertisements immune. People who uploaded to such sites would be free to do so and the webhosting service would not get in trouble either. Only advertising "tied" to the copyrighted work would be considered commercial. Bit of a loophole there. Hosting services specializing in such a service would spring up overnight. But, if you didn't immunize the hosting service, you would have to have a process for telling a hosting service to take down copyrighted content, and eventually, you'd want to get people to stop uploading it constantly, otherwise the take down requirement would be toothless.
As Derek notes, these responses don't answer all of my questions (for example, the advertising issue is a rather difficult one - once an unauthorized commercial has been released into the filesharing universe, what can you do about it?), but he is trying to move the dialog along. As I view it, it is not that the commercial/noncommercial distinction can't be made or that we need to design the law to be perfect in every imagineable case, but that these issues don't seem to have been discussed in much depth at all. As I've said before, there has been much debate about how to collect and distribute revenue in the compulsory license model, but not much debate about the many other issues compulsory licensing raises.