Creative Commons Wants To Step Into Lawsuit Over Definition Of 'Noncommercial' In A CC License

from the this-could-be-interesting dept

Two decades ago, there were a series of lawsuits against copy shops over whether or not it was fair use for them to be photocopying educational materials for college coursepacks. Unfortunately (and, some of us still think, incorrectly) the courts ruled that this was not fair use. The end result was that the price of coursepacks shot up to astronomical levels (this happened while I was in college, and I saw coursepacks increase in price from $20 – $30 to well over $100, and they’ve gone up more since then).

Earlier this year, it appears that a new version of this kind of lawsuit was filed by Great Minds, an educational non-profit, against FedEx, the shipping giant who also took over what used to be known as Kinkos copy shops, now rebranded as FedEx or FedEx Office. At issue: these copy shops owned by FedEx were photocopying some of Great Minds’ works for educational entities. Great Minds says that FedEx is infringing on the copyright. If that was all there was to it, based on the cases back in the 90s, Great Minds would have a slam dunk of a case (unfortunately).

Here’s the twist: the works in question, Great Minds released under the CC BY-NC-SA 4.0 license, or the Attribution-NonCommercial-ShareAlike license. So at the heart of this issue is what is meant by “noncommercial” in this license. Great Minds argues that because FedEx is profiting off the copying, it’s commercial, and thus the license is violated and the copies are infringing:

This explicit limitation of the License to noncommercial use requires that commercial print shops, like FedEx, negotiate a license and pay a royalty to Great Minds if they wish to reproduce the Materials for commercial purposes ? i.e., their own profit ? at the request of their customers. Thus, this limitation benefits Great Minds and the public, too, by providing Great Minds with additional financial resources to develop new curricula, which in turn can be made available nationwide for free, noncommercial use, and otherwise to further its educational mission.

Now, this is both an interesting question and a not particularly surprising one. For many, many, many years, I’ve pointed out some concerns I’ve had with the “noncommercial” license that Creative Commons offers, because “commercial use” is kind of a vague idea at times, and seems to open up the opportunity for nutty cases (like this one!). In fact, we’ve also noted that the offering of a “noncommercial” license has resulted in some problematic branding confusion for Creative Commons, sometimes leading people to think that it’s only for people who don’t want to make money. And people have made the suggestion that CC may want to drop or otherwise spin off those NC licenses to avoid the confusion.

To its credit, Creative Commons has actually tried to address this issue proactively over the last few years, and has been careful to take a lot of the feedback into account. And part of that has resulted in increasingly defined guidelines that clarify what is and what is not commercial use in the context of Creative Commons.

And that makes the latest news quite interesting as well. Creative Commons is asking to file an amicus brief in the case, arguing that Great Minds has seriously misunderstood what NC means in a CC license. CC doesn’t beat around the bush either:

We seek to file an amicus brief explaining why Great Minds? interpretation of the CC BY-NC-SA 4.0 license is wrong….


The point of Creative Commons licenses is to be useful tools that facilitate creative, socially constructive activity. Particularly (though not exclusively) where the licensee is an entity rather than an individual, the entity must be able to act as entities do, through employees and contractors alike. The artificial distinction drawn by Great Minds?between whether a school district employee pushes ?copy? and pays FedEx Office for use of its copier, or a FedEx Office employee pushes ?copy? on the same machine?would, if applied more broadly, preclude the use of most or all standard channels of dissemination and render the licenses all but useless. It would force users to choose between owning the entire chain of production or distribution, and leaving a trail of actionable copyright infringements in their wake. That is emphatically not how Creative Commons NonCommercial licenses were designed to work.

Creative Commons further points out that agreeing with Great Minds could create a real issue as tons of NonCommercial CC licenses may not do what people expected them to do:

Finally, we note that Great Minds has argued that ?granting FedEx?s motion would create bad public policy.? See Pl.?s Opp. to Mot. to Dismiss at 15. That is backwards. Creative Commons takes no view on whether, as a general matter, it is good or bad policy for creators to license works to the world-at-large under precisely the terms Great Minds seeks to enforce in this litigation?by using their own licenses, not ones from Creative Commons. But to twist the meaning of the CC BY-NC-SA 4.0 to engineer that result would be profoundly damaging. It would disrupt the settled expectations of innumerable users and creators of works governed by CC BY-NC-SA 4.0 licenses around the globe. And it would substantially diminish the utility of a license that enables the sharing of knowledge and creativity to build a more equitable, accessible, and innovative world.

Hopefully, CC is allowed to weigh in… and the court realizes how this lawsuit is a misinterpretation of the NonCommercial license.

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Companies: fedex, great minds

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Comments on “Creative Commons Wants To Step Into Lawsuit Over Definition Of 'Noncommercial' In A CC License”

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Anonymous Coward says:

Re: What is Fed-Ex charging for?

I agree.

If simply making a copy (and charging the same as any other content) was against CC-NC then the post office would be in trouble for ever shipping any CC-NC content. So if I order a CC-NC book it couldn’t be delivered to me unless the freight service did so for free.

I couldn’t download it because my ISP is a for profit entity and they would have to be the ones to provide it.

I would, essentially, have little practical way of attaining such content.

Andrew D. Todd (user link) says:

Re: Re: What is Fed-Ex charging for?

What may have happened is that FedEx took it upon itself to give the school district an education in printing economics.

Great Minds was attempting to sell a package worth something like $50,000 per year, for a single school, or half a million dollars or a school district. That means there would have been salesmen all over the place. One can imagine the school superintendent becoming progressively disgruntled as it became apparent that free did not actually mean free, and what was worse, the damm salesmen would not go away, but probably camped out on the school lawn like so many hyenas, improperly approaching children and giving them Great Minds-branded candy bars. With large sums of money at stake, commission salesmen are quite unscrupulous.

The local FexEx manager might have heard about the business, and put together a counter-proposal (“You do, um, realize that Great Minds is proposing to make a 2000% profit?”). He would have noted which items did not require stapling or collating, and could therefore be produced on small-office-grade photocopiers in the schools, on a daily basis, at an effective cost of maybe a penny a page, and he would have quoted a price for the things which did require collating and binding. Of course this got back to the Great Minds people, and it would explain the animus behind their lawsuit.

Ninja (profile) says:

Re: What is Fed-Ex charging for?

This is actually the same case regarding many services like Netflix or The Pirate Bay (yes, that TPB), Google. They don’t make money on the content but rather on the platform they offer, the ease of use, availability, indexing etc. Haters will foam at the mention of Google or TPB but they host many things other than copyrighted material (maybe less true for TPB than Google lmao).

The revenue comes because they are useful.

Doug says:


FedEx may not even know what their customers are copying. They certainly aren’t taking the content and then advertising “Hey Come to FedEx to get your Great Minds content”. That would be profiting off the copyrighted material.

As others have stated, as it is, they are only making money off their copying service, completely independent of what content they are copying.

Anonymous Coward says:

Re: FedEx is guilty of piracy

Yes, lets shut down

The post office. People can order pirated stuff


Copy centers

Printing presses

Copy machines


Humans, since we all copy each other


We’re all just a bunch of evil stealing copying machines and the human race and all life should be obviated from existence.

Federico (profile) says:

NC licenses are dangerous

Commendable effort by Creative Commons, but this legal risk is why the CC-NC licenses make little sense for most people and are positively dangerous and misleading.

If this lawsuit fails, I hope CC will drop those licenses as suggested by

Thad (user link) says:

Re: NC licenses are dangerous

I think there are perfectly reasonable uses for the NC license (Doctorow explains using it on his fiction by saying that he’s got no problem with school plays adapting his work without compensating him but would have a problem with a Hollywood movie studio doing so) but the criticisms you linked are valid ones. Its name is confusing and it’s not appropriate for works that have an educational purpose; it has its uses but they’re narrower than a lot of creators and publishers perceive them to be.

I self-published a short story a few months ago under NC-BY; IIRC I declared my blog to be SA-BY. Different licenses for different types of content. (I’m thinking of changing the license on my short story the farther out I get from release; it’s NC-BY now, maybe at five years I’ll switch it to SA-BY, and then at ten years just BY. Ideally I’d like to publish more ebooks and use similar rolling license schemes, but I’ve got to actually write some stuff before I do that.)

Anonymous Coward says:

Re: Re: NC licenses are dangerous

but that is the problem, no? there is no difference in the term ‘commercial’ for a school play and a Hollywood movie.

the size of the production does not convert it from non-commercial to commercial. It is or isn’t.

I see this a lot in CC discussions, the stance that they were licensing things for the little guy, not understanding that major corporations could also use their work.

That One Guy (profile) says:

"Ignore the experts, here's what it REALLY means..."

Unless I’m seriously misreading things Creative Commons is the group that defines and puts together the CC licences in the first place, so the fact that they’re saying that Great Mind’s are wrong here should be all that’s needed to get the lawsuit tossed.

If Great Mind’s is wrong then there’s nothing to sue over, as the actions performed by FexEx is perfectly within the scope of the licence, hence no infringement, and it’s Great Mind’s that’s screwed up by thinking the licence is something that it’s not.

Dan (profile) says:

Re: "Ignore the experts, here's what it REALLY means..."

What you say makes sense, but consider a contrary position: When I license my works under a given license, I do so based on my understanding of what that license means. That understanding should be entitled to some consideration (though how much consideration would depend a lot on how reasonable it is).

That One Guy (profile) says:

Re: Re: "Ignore the experts, here's what it REALLY means..."

The problem with that is that the other party may not share your ‘understanding of what a licence means’, and may act in a fashion that violates your ‘understanding’ of what the licences allows but not theirs ‘understanding'(or in this case the official ‘understanding’), leaving a tangled mess of ‘violation to one but not to another’.

If you’ve got a ‘standard’ license and the person who uses a licence gets it wrong they should have no grounds to sue over ‘violations’ of that licence done by someone else who is following what the licence actually says, as that undercuts the entire purpose of using the ‘standard’ licence rather than a custom one.

They used a particular ‘standard’ licence, their understanding of what it does and does not allow is wrong, as such they should drop the case, chalk it up to the licence not being the ‘right’ one and change to one that means what they think it does, or throw together a custom one for their stuff. If FedEx or someone else violates the terms they throw together after that point then sure, then they’ve got grounds to take them to court.

Anonymous Coward says:

Re: "Ignore the experts, here's what it REALLY means..."

Creative Commons is the group that defines and puts together the CC licences

Contra proferentem

Contra proferentem (Latin: “against [the] offeror”), also known as “interpretation against the draftsman”, is a doctrine of contractual interpretation providing that, where a promise, agreement or term is ambiguous, the preferred meaning should be the one that works against the interests of the party who provided the wording. . . .

(Footnotes omitted.)

The fact that Creative Commons drafted the CC BY-NC-SA 4.0 license does not necessarily work in favor of Creative Commons’ interpretation of the terms.

James Burkhardt (profile) says:

Re: Re: Re: "Ignore the experts, here's what it REALLY means..."

The point of the language is to prevent the party supplying the language from creating intentionally vague language which the non-supplying party thinks means one thing, but was ‘meant’ to mean something very different which gave significant leverage to the party supplying the language.

orbitalinsertion (profile) says:

Re: Re: Re:2 "Ignore the experts, here's what it REALLY means..."

Except that this is not what is at work here. It’s an open license, not a negotiated contract. Great Minds adopted and used (supplied) to their own detriment someone else’s work without some combination of enough understanding, questions, or lawyers. This might holed if the those bound by the terms (the consumers copying the work) had misunderstood. Which is pretty much the problem everyone who is confused by cc-by-nc-sa has. If you are using a license without reading it, don’t expect those who consume your content to read it either.

Anonymous Coward says:

Re: Re: "Ignore the experts, here's what it REALLY means..."

I’m pretty sure contra proferentem only applies when one of the signatories is the draftsman. In this instance Creative Commons is a third party with no interest in the transaction other than the integrity of their license as it was intended.

The only possible way this legal principle could be applied here would be against the party who supplied the contract — that is, Great Minds when they decided on a CC BY-NC-SA 4.0 license.

Skeeter says:

To Copy, or Not to Copy?

One of the absolutely easiest ways to work around those $150-$250 college ‘copy packs’ issue, is to get with 5-10 other people in your given class, everyone chip-in equally, say, $10, and simply buy one pack of information, and scan it, then print it out for everyone. We figured this joke out decades ago, when the prices were ludicrous but still within the range of ‘known sanity’. As for software packages, those are easy, too – simply use a ‘make ISO’ software program, and make an ISO disk of the original, then burn as many copies of it as you want. Few require a ‘purchase key’ for simple text data, even now.

I have a LOT of problems with the exorbitant costs of books and material related to education. Some things are worthy of Capital Gains, but education should NOT be one of them, at the cost of ordered ‘institutional graft’ (where you MUST buy this book, or THAT package, to participate).

Anonymous Coward says:

Could they change the meaning of the license?

Could a court case just arbitrarily change the meaning of a CC license, without any regard for the organization which created it?

It would seem to be more appropriate for Great Minds to change their license to one more appropriate, rather than trying to make CC fit their idea.

Andrew D. Todd (user link) says:

Facts Can Change In Response to Law

When the first Kinko’s decision went through, I was in graduate school (Anthropology) at Oregon. I think it must have been about 1989 or thereabouts. The immediate result was that packet copying was shifted over to the university copy shop, located in the student union. There was a bit of crowding, as I recall, but everyone got their packets. Shortly afterwards, I switched over to History, at Temple, in Philadelphia. History is much more book-oriented than Anthropology. Historians tend to write books instead of writing journal articles, the way anthropologists do. The leading history journal is the American Historical Review– it consists mostly of book reviews. I found that a lot of professors, when they needed to use journal material for classes, went and had it copied at their own expense, driving for miles to find the cheapest copy shop, and then handed the copies out in class, one article each week.

At that date, a copy machine which could make twenty copies of a twenty-page document was still mechanically distinctive. It had collating trays and a sheet-feeder. The attendant pulled copies from the collating trays, and stapled them and stacked them. Nowadays, of course, there are machines which read an Acrobat file from a disk, pretty much like a computer printer, and do automatic stapling. I don’t suppose it would be particularly difficult to design such machines to be full-on, self-service vending machines.

What you have here is people creating facts which are legally advantageous to themselves. I suspect that it would be economically rational for a middle school to own its own copying machine, or mass-production printer. A copy shop has to pay rent, etc. at a commercial location. A middle school can keep a copying machine in a closet in the basement. At this point, people seem to want reading material in electronic format more than they want it on paper. I doubt there’s any real windfall to be gained by turning e-books into paper books.

Oddly enough, the last time I was in a copy shop was a couple of years ago, when my printer packed it in at tax time. So I exported the filled-out tax forms, via GIMP, to JPEG files (maximum compatibility), burned them to a disk, and carried it down to the copy shop. As Arlo Guthrie would put it, “Great Minds began to cry, because they could see it was a typical case of American blind justice, and there was just no way they were going to get to charge royalties on Form 1040, let alone on the dollar sum of line 37…”

More seriously, Great Minds’ issue is that, in a crowded textbook market, they want schools to try out their books in a single classroom, in the belief that these books are free, and then to turn around and adopt the books for the whole school, and pay for those books. It is much the same situation as the Flat World business school textbooks. In both cases, the publisher is essentially seeking to secure textbook adoption on false pretenses. I realize a lot of people here do not have actual teaching experience. In a department common room/mail room, sample textbooks pile up like any other junk mail. The publisher is desperate to avoid having his book used for various inappropriate purposes, some on them having to do with dogs. Getting someone to even look at a book under those circumstances is problematic. A publisher can sometimes unfairly advance to the head of the line by shouting “free,” and then recant his words.

If I recall rightly, the General Public License deals with copying explicitly, saying what constitutes a fair copying fee, and anything beyond that is treated as an attempt to charge for the content. The creative commons license does not appear to address this point.

The Creative Commons license ought to have a similar clause for printing. Printing costs are not in Moore’s-Law free-fall, the way data copying costs are, so there would have to be some kind of adjustive mechanism, say, a fair print-off price might be the greater of ten cents per 8-1/2 X 11 page, and such prices as Creative Commons may from time to time publish.

Anonymous Coward says:

Re: Facts Can Change In Response to Law

If I recall rightly, the General Public License deals with copying explicitly, saying what constitutes a fair copying fee…

GNU General Public License, Version 3 (29 June 2007)

4. Conveying Verbatim Copies.

 . . .

You may charge any price or no price for each copy that you convey . . .

“[A]ny price or no price”.

Because some significant works are still offered only under GPLv2 (June 1991), it’s probably also worth looking at the previous language.

1.  . . .

You may charge a fee for the physical act of transferring a copy . . .

“[A] fee”.

Andrew D. Todd (user link) says:

Re: Re: Facts Can Change In Response to Law

Ah, my confusion, what I was thinking of was the commitment to provide source code (section 3B of GPL v.2)

“Accompany it with a written offer, valid for at least three years, to give any third party, for a charge no more than your cost of physically performing source distribution, a complete machine-readable copy of the corresponding source code, to be distributed under the terms of Sections 1 and 2 above on a medium customarily used for software interchange;”

This is a necessary provision, because otherwise, the distributer could simply raise the price of the source code until it became de-facto closed-sourse. This clause seems to be superseded by Section 6b) of GPL 3:

“Convey the object code in, or embodied in, a physical product (including a physical distribution medium), accompanied by written offer, valid for at least three years and valid for as long as you offer spare parts or customer support for that product model, to give anyone who possesses the object code either (1) a copy of the Corresponding Source for all the software in the product that is covered by this License, on a durable physical medium customarily used for software interchange, for a price no more than your reasonable cost of physically performing this conveying of source, or (2) access to copy the Corresponding Source from a network server at no charge.”

Note the assumption that material can and should be distributed by a network server without money changing hands. Possibly GPL v.3 could be improved by stipulating that if you use a network server to distribute object code, you have to distribute source code the same way. Conceivably, a malicious distributer, especially of a modified work, could use the constraints of physical distribution to delay access to the source code of updates.

Now, the problems of free textbooks, etc., are somewhat different. It does seem to be necessary to print copies. Ideally, the end user, having been given a URL, should download and print his own copy on his home computer printer, but there are circumstances in which this is not feasible. Therefore, appropriate language would have to be drafted for the Creative Commons License, explicitly describing how a copy shop works, and drawing a clear line between making copies for someone who brings in an original copy, typically in electronic form, and speculatively producing paper copies for sale to third parties. That is of course the key distinction. If the customer comes in with an original copy, and he doesn’t like the quoted prices, he can take his original copy, and walk out, and go somewhere else.

In practice, in most school or college settings, it is reasonable for the teacher or the school to give the students paper copies, as an incident of course enrollment or class attendence, without money changing hands. From what I can see, young people take to reading on the screen, like ducks to water, so the provision of paper copies should be fairly de minimus. Thge kind of edge case I can think of is a freshman course with five hundred students, and an instructor who is paid only a small fraction of the revenue generated by the course. Such an instructor might find it onorous to provide five hundred sets of reading materials out of his own pocket.

On further examination, Great Minds charges about $1500/year for a set of textbooks and worksheets for a class of 30 pupils for one subject. This is at least ten times reasonable printing and shipping costs. Asuming one worksheet per pupil per hour, it might be about twenty cents per page, and Great Minds’ large volume ought to aloow them to use the comparatively inexpensive offset printing system, and have the worksheets printed in China, rather than using photo-copying.

Anonymous Coward says:

Re: Re: Re: "Noncommercial" in similar context [was Facts Can Change In Response to Law]

… section 3B of GPL v.2… … Section 6b) of GPL 3…

You know, despite the explicit definition “k. NonCommercial” in section 1 of CC BY-NC-SA 4.0, it’s still probably worth taking a good, hard look at the use of the term “noncommercial” in the Gnu GPL.


3. You may copy and distribute the Program (or a work based on it, under Section 2) in object code or executable form under the terms of Sections 1 and 2 above provided that you also do one of the following:

a) . . .
b) . . .
c) Accompany it with the information you received as to the offer to distribute corresponding source code. (This alternative is allowed only for noncommercial distribution and only if you received the program in object code or executable form with such an offer, in accord with Subsection b above.)

(“[N]oncommercial” hilighted.)


6. Conveying Non-Source Forms.

You may convey a covered work in object code form under the terms of sections 4 and 5, provided that you also convey the machine-readable Corresponding Source under the terms of this License, in one of these ways:

• a) . . .
• b) . . .
• c) Convey individual copies of the object code with a copy of the written offer to provide the Corresponding Source. This alternative is allowed only occasionally and noncommercially, and only if you received the object code with such an offer, in accord with subsection 6b.
• d) . . .
• e) . . .

 . . . .

(“[N]oncommercially” hilighted. Note also that GPLv3 utilizes the term “commercial” in the elided portion of section 6, as part of the definition of a “User Product”.)

As this comment takes up enough screen space already, I’m going to defer upon further remarks for awhile, in favor of just staring at the words and asking myself, “What does this actually mean?”

Andrew D. Todd (user link) says:

Re: Re: Re:2 "Noncommercial" in similar context [was Facts Can Change In Response to Law]

Well, I imagine Sub-clause C is an attempt to deal with the situation in which people are buying Linux disks by mail-order, getting only the executable version in order to save money, and then turning around and burning copies to give to their friends. This was more critical when media were smaller. In my time, I have shared around disks holding 360 KBytes each.

In 1989, the University of Oregon computer center acquired, for about a hundred dollars, a CD containing the complete contents of the PC-SIG shareware collection, about 1500 360-KByte floppy disks. I already owned a printed catalog of this collection, maybe 500 pages thick, which I had purchased for about twenty dollars, and used for ordering individual 360K disks by mail order. Well, on hearing that the CD-disk was available, I took the catalog into the Anthropology department student lounge, showed it around, and made like a traveling salesman, and solicited some orders. At the same time, I had made an appointment, about a week in advance, to use the CD in the computer center, on one of their personal computers, which was fitted with a CD drive, a rare and expensive accessory in those days. So, with orders in hand, I first bought a box of blank disks (with my own money, for which I was never reimbursed), and then, I went in to the computer center, copied over the desired disks, and carried them back to the Anthropology Department to hand them out. Sub-clause C simply reflects the “friction” inherent in this process.

Sub-clause C is not an elegant solution in principle, but it is an expedient one. It would be much better if the principal Linux distributions moved gradually to shipping more packages as source-code-only, and automatically running the compiler during the install process. The kind of package which goes on the fifth or sixth DVD disk of a distribution is not one which very many people will want to install, and the running time of the compiler is probably not very critical in those circumstances. It is a kind of law-of-diminishing-returns. A reasonable balance might have 4.7 GBytes (1 DVD) of packages in both source-code and binary, so that the user would not have to compile things like a word processor and a web browser. A distribution might come in seven DVD disks instead of six DVD disks, and that is an acceptable trade-off. That way, everyone using open-source software would actually acquire source code.

Anonymous Coward says:

Re: Re: Re:3 "Noncommercial" in similar context [was Facts Can Change In Response to Law]

The kind of package which goes on the fifth or sixth DVD disk of a distribution is not one which very many people will want to install, and the running time of the compiler is probably not very critical in those circumstances.

Suppose, peering into the future, dimly, that executables typically get built out in the cloud, using something like Open Build Service.

I’m not sure where I’m going with this thought…

Anonymous Coward says:

I think the distinction is that Fedex isn’t selling the works or access to the works (ie: they’re not putting up a picture on a wall, like a museum, and charging for admission and they’re not specifically selling a book released under such a license). They’re selling the output of a machine that’s indifferent to what’s being outputted and simply charging a generic fee for that output. It’s not like Fedex is charging a different fee based on what’s being outputted (other than general guidelines, ie: they may charge more for color than black and white), the user is choosing the output. Fedex is just acting as a service provider.

It’s not different than your ISP providing a generic service. As CC makes clear, and as has been discussed here on Techdirt before, if I download a CC NC licensed piece of work my ISP is technically commercially benefiting from that because I pay my monthly ISP bills. But it would be ridiculous to think that this means CC-NC content can never be available on the Internet because people download such content and hence the ISPs indirectly benefit from the availability of such content and from providing it since ISPs are for profit.

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