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.