One of the mistakes armchair lawyers make is assuming that the mere text of the rules is all that matters. In many cases, and especially when dealing with
regulations issued by agencies, the
intent of the regulation also matters.
(Note: statute/law = issued by Congress; regulation = issued by government agency.) Agency regulations are not held to the strict interpretive requirements as are statutes, since agency regulations by their very nature include a measure of interpretation. (For more information on this topic, lookup
Chevron deference.
)The clear intent of the regulations are to prevent unregistered commercial use of drone footage. Thus, in this case it doesn't matter if the drone pilot doesn't commercialize the footage if he gives it to his own shell company* to commercialize. That would be illegal under the plain intent of the regulations. (It could be different if he gave it completely for free to an unrelated company and they commercialized it without his permission or knowledge.)
The right to fly a drone is a permissive license, so the burden to prove non-commercial use can be placed on the pilot. The pilot's intent not to commercialize the footage at the time of shooting can matter...but only if he can show that he did not intend to commercialize the footage at the time he recorded it. Thus, for example, a guy randomly shooting footage happens to capture a newsworthy event and later sells that footage to a news network will most likely be treated as not operating the drone commercially. However, if the guy flies his drone for the purpose of capturing a newsworthy event and later sells the footage, he will likely be treated as operating the drone commercially unless he can demonstrate a non-commercial intent.