Appeals Court Makes The Right Call Regarding Non-Commercial Creative Commons Licenses

from the good-to-see dept

We’ve pointed out for years that there’s always been some level of confusion about the boundaries of the “non-commercial” tag on a Creative Commons license. There are lots of things that are kind of fuzzy about it. Does it mean you just can’t sell the work? Or does it mean you can’t even use it on a website if that website has ads on it? Indeed, we’ve worried that the non-commercial license created a bit of a branding problem for Creative Commons. However, to the organization’s credit, it has spent plenty of time and effort over the past decade or so to try to clarify some of the confusion about non-commercial licensing, saying that it really just refers to the direct sale of such works.

For the past few years, that’s also meant that Creative Commons, the organization, has had to step in to an ongoing lawsuit over such a license, and inform the court what a non-commercial license actually means.

The issue, in the case, was that an educational non-profit, Great Minds, sued various copy shops for making copies of its educational materials, even though they were licensed under Creative Commons BY-NC-SA 4.0 license. That license says the work can be copied, but only under non-commercial terms. Great Minds argued that because the copy shops, like FedEx and Office Depot, made money from the copies, that made it commercial. Creative Commons kept telling the court that this was a misreading of “non-commercial” and in the Office Depot case, the 9th Circuit has agreed.

It’s a nice, quick, and simple ruling:

There is no dispute that the school and school district licensees? copying of Great Minds? material is permitted under the License. There also seems to be no dispute that if Office Depot were itself a licensee, commercial copying of Great Minds? material would fall outside the scope of the License and infringe Great Minds? copyright. The issue we consider then is whether the school and school district licensees? exercise of their rights under the License through the services provided by Office Depot results in Office Depot becoming a licensee. We hold that it does not. A licensee?s hiring of a third-party copy service to reproduce licensed material strictly for the licensee?s own permitted use does not turn that third party into a licensee that is bound to the License terms.

Citing the ruling in the 2nd Circuit in the basically identical case that Great Minds brought against FedEx:

?Great Minds? licensees may rely on non-employee agents in carrying out permitted uses without converting those agents into independent licensees.?

The court also notes (again, echoing the 2nd Circuit’s ruling) that Great Minds’ contention that Office Depot’s “volitional” conduct changes matters, is “absurd”:

Great Minds also contends that the ?volitional? element, i.e., which entity?s employee does the copying, is determinative in this case. But that argument produces the following absurd results: (1) a teacher may copy Eureka Math on an Office Depot-owned copy machine for a fee in-store, but cannot hand the materials to an Office Depot employee to be copied; (2) a school may pay a copy machine provider a monthly fee to keep a machine on site to copy Eureka Math, but cannot pay Office Depot employees to make the same copies; and (3) a school may permit teachers to copy Eureka Math on school-owned or leased machines, but cannot pay a high school student to make the same copies.

Great Minds? interpretation cannot be correct.

So now we have rulings in both the 2nd and the 9th Circuit saying basically the same thing. That’s useful, as those are the two biggest circuits for copyright law, generally. This is, at the very least, good news. Putting an NC license on Creative Commons works does not prevent all commercial activity, so long as that activity is within the reasonable ambit of the license.

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Companies: fedex, great minds, office depot

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Comments on “Appeals Court Makes The Right Call Regarding Non-Commercial Creative Commons Licenses”

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Samuel Abram (profile) says:

BY-NC license

I license my original work with a creative commons license. That being said, I’m okay with this ruling. Very okay. I believe it was Cory Doctorow who once said that a noncommercial condition in a creative commons license didn’t negate a fair use or de minimis right that a person reusing the work had. It should also be noted that when Jonathan Coulton saw a T-shirt on Cafepress saying "Code Monkey Like Fritos" he said:

Yes, to clarify how CC applies here, it doesn’t. Protection from copyright is still in effect despite the CC license, which only allows non-commercial use of the song. Though I’m not sure to what extent this represents use of the song – it’s really use of a lyric. If I were Sony I would probably send a cease and desist just to throw my weight around. As it is, I suppose I will contact Cafepress and see what they say.

But does copyright really apply to these shirts and mouse pads? Couldn’t I make a shirt that said "I want to hold your hand" if I wanted to?

I think that is in essence admitting that the person uploading the lyric from the Jonathan Coulton song "Code Monkey" has as much as a fair use defense as someone doing the same with a Beatles lyric, and my guiding principle in these matters is WWJD: What Would JoCo Do?

I also think that what should be determined "non-commercial" or not should basically be determined by the courts so that we may have precedent on the matter. AFAIAC, I think what is commercial or not should be similar to the definition used in trademark.

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Anonymous Coward says:

Re: But The Licence Is The Only Permission You Have To Make Copi

That is not in US copyright law.

First, there is fair use which is expansive, especially in the NC domain.

Second, it ignores the "first sale" doctrine which turns into the "first transfer" doctrine in a NC context.

Step 1. Make copies of NC work.
Step 2. Give copies away.
Step 3. Transferee has all the rights to sell or dispose of their copy however they see fit.

The NC licenses is like a public domain license with an extra step.

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Anonymous Coward says:

Re: Re: Re: Step 2. Give copies away.

Are they selling the copy back to the school, or are they charging the school for the service of copying? The court seems to think it the payment is for services rendered when they do the dismissal of the ‘volitional’ element.

Great Minds also contends that the “volitional” element, i.e., which entity’s employee does the copying, is determinative in this case. But that argument produces the following absurd results: (1) a teacher may copy Eureka Math on an Office Depot-owned copy machine for a fee in-store, but cannot hand the materials to an Office Depot employee to be copied; (2) a school may pay a copy machine provider a monthly fee to keep a machine on site to copy Eureka Math, but cannot pay Office Depot employees to make the same copies; and (3) a school may permit teachers to copy Eureka Math on school-owned or leased machines, but cannot pay a high school student to make the same copies.

Great Minds’ interpretation cannot be correct.

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Anonymous Coward says:

Re: But The Licence Is The Only Permission You Have To Make Copi

Does that mean that everybody who runs a printing press, CD press or DVD press has to be licensed to make copies of whatever they are copying? Note, printers etc. are not explicitly licensed to make copies, but act as subcontractors to the publisher who has the license to make copies. This ruling makes sense ad the copy house is a subcontractor of someone with a license to make copies.

Anonymous Coward says:

Re: Re: But The Licence Is The Only Permission You Have To Make

Any license has to be baked into the contract. Generic language would read that the manufacturer has a limited right to create X copies that are sent back to the studio or to a distributor of the studio’s choice.

If a manufacturer under those terms made extra copies and sells them independently, they’re in breach of contract and willful infringers – a double whammy, legally speaking. Not to mention the reputation hit they’d take.

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Anonymous Coward says:

Re: But The Licence Is The Only Permission You Have To Make Copi

The license could apply if the copyshop took it upon themselves to provide copies themselves, knowing that they would be needed. Being contracted to copy something by another party who has taken on the state of being a licensee, the license does not and need not apply.

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bhull242 (profile) says:

Re: But The Licence Is The Only Permission You Have To Make Copi

Not true. Essentially, Office Depot is acting as an agent for the licensee. So long as Office Depot is only producing the copies for the licensee and the licensee is acting within the limitations of the license (including that the license doesn’t expressly prohibit or limit the licensee from using agents for the permitted use(s)), Office Depot cannot be committing copyright infringement.

Think of Office Depot as a third-party contractor. As far as this license is concerned, there is no difference between hiring an employee to make the copies as permitted by the license and hiring an outside entity to do so.

And it’s worth noting that several other cases—not just these two Great Minds cases—have made this principle expressly clear: unless expressly restricted by the original license, third-party agents hired by a licensee cannot be held liable for copyright infringement at all for actions taken for and on behalf of the licensee if they are solely done in furtherance of the licensed use and the licensee isn’t in violation of the license themselves. Basically, if the agent’s copying is only done for licensees, then the agent cannot be committing copyright infringement if the licensee is not.

As an example, imagine that a company X has a nonexclusive license to some copyrighted software A from another company Y, producing their own software B using the licensed software. Unless otherwise stated in the license, X can hire a factory run by third-party company Z—who is not a party to any license for A—to produce copies of B on X’s behalf without Z becoming a licensee of Y’s or licensing A. As such, Z is not restricted by the license Y granted X for A. As long as X is within the bounds of the license, Z is not committing copyright infringement of A.

(Also, while inapplicable here, there’re also “fair use”, de minimis, scenes a faire, and the first-sale doctrine as exceptions to copyright infringement. Licenses aren’t the end-all-be-all to the question of whether an act of copying a copyrighted work is copyright infringement.)

bhull242 (profile) says:

Re: Re: Re: acting within the limitations of the license

Commercial activity is permitted by the license so long as the use isn’t commercial. And no, paying money isn’t considered commercial activity. By that logic, the schools would be in breach of the contract just for buying paper to print the copies on. Seriously, this part is well-settled in US case law. Paying an agent to make copies you are licensed to make doesn’t break the license, and as long as the agent doesn’t make copies for unlicensed use and the licensee doesn’t exceed the license, the agent isn’t infringing on copyright, period. This is not exclusive to the NC-CC license; it’s true of all licenses and contracts.

Anonymous Coward says:

Re: Re: Re: acting within the limitations of the license

That isn’t what is meant by "commecial" in the license, and the court wisely agrees.

Of course there is some commerce going on, but it has nothing to do with the licensed work.

It’s like… hey, you can make as many copies of this as you want, but you aren’t allowed to buy paper, haha! That makes no sense.

Anonymous Coward says:

Re: Re: Re: Re:

Sure, if not for the fact that the bulk of copyright cases don’t even make it to the stage of Prenda’s proceedings, despite the RIAA/MPAA’s cases, for all intents and purposes, looking exactly like cases Prenda and Malibu Media brought forward.

If what separates your majority cases and corner cases is literally "Judges Wright and Pregerson happened to look at it", that baby might be more bathwater than you think.

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Anonymous Coward says:

Re: Re: Re:2 Re:

Well, one might also consider all the commercial applications, breakthrough inventions, and contributions to humanity that depend on copyright and patent law, and have nothing to do with litigation and everything to do with encouraging and rewarding creative genius.

As an example, name a country with more valuable and long lasting contributions to humanity than the USA.

I’ll wait while you think.

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Anonymous Coward says:

Re: Re: Re:5 Re:

I like how you’ve gone on to completely sidestep all the other points brought up to bring out a "governments would be tyrannical and controlling if not for copyright law" screed, but humor me – exactly how does copyright law, a government-granted monopoly that allows copyright holders to define and control usage of their works, result in less control?

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Anonymous Coward says:

Re: Re: Re:6 Re:

You like me, that’s nice.

Think of copyright and patent law like super powers, allowing, even encouraging, independent inventors to compete and win with large, tyranical corporations by having and protecting better ideas from unlawful theft.

Better inventions makes for better societies.

Everyone benefits.

Except the Chinese, of course.

Anonymous Coward says:

Re: Re: Re:7 Re:

Ah, just couldn’t hide the Trump rally talking point could you fam? I’m going to guess you thought that the defeat of Dallas Buyers Club and Blackbird were absolutely terrible for democracy, too. Because obviously corporations have always lived in fear of copyright instead of abusing it at every possible opportunity…

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Anonymous Coward says:

Re: Re: Re:8 Re:

Well, yes, I would agree with your point regarding the greed associated with human nature.

My point is that incentivizing poor inventors to become rich inventors is good for everyone because we all get good inventions to choose from.

More and more incentivized inventors, that’s the promise of America.

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Anonymous Coward says:

Re: Re: Re:3 Re:

If a cure exists for the common cold that also gives me AIDS as a side effect, I don’t care how effective it is at curing the common cold; it’s broken.

If a military tactic ends up killing all enemy forces but also wipes out plenty of allied forces and civilians in friendly fire, it’s a terrible strategy.

Copyright law as it stands is a dumpster fire used to incentivize shutting down game reviews and harass grandparents at the behest of porn producers, which you seem very reluctant to fix.

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Rocky says:

Re: Re: Re:3 Re:

As an example, name a country with more valuable and long lasting contributions to humanity than the USA.

Challenge accepted, The UK (or British if you so prefer):

Vaccines – Edward Jenner
Penicillin – Alexander Fleming
Steam Engine – James Watt
The Computer – Charles Babbage

Now, can you come up with US inventions that beat that in the category long lasting contributions to humanity?

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Rocky says:

Re: Re: Re:5 Re:

No, I provided a rebuttal to your implicit argument that the USA is the leader in inventions that provided long lasting contributions to humanity – regardless if they where copyrighted/patented or not.

Anyone who thinks copyrights and patents are the sole driving forces behind progress hasn’t paid attention to what’s really happening. There actually exist people who invent things for the sole purpose of benefiting mankind regardless of patents, copyright and money.

The consequences of today’s copyright- and patent-law are that they actually stifling progress because the cost of doing business is increasing – especially when it comes to patents, which forces smaller parties out of the market. Currently, the cheapest average cost for filing a very simple patent starts at ~$6000 (attorneys fees + prior art search) – and it quickly gets extremely expensive the more complex the invention is.

You know that the whole thing is broken when companies regularly files for bullshit patents to create an IP-portfolio with the sole purpose to be used defensively or to go after competitors.

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bhull242 (profile) says:

Re: Re: Re:7 Re:

I would not, at least not as a positive impact per se. Many medical advances, including in the US were never patented, for example. Many famous authors never saw a profit.

And what the hell do the Taliban, ISIS, or religion have to do with patent and copyright law?

I’m not totally against patent and copyright laws, but you are doing a terrible job at defending them.

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Wendy Cockcroft (profile) says:

Re: Re: Re:7 Re:

historical context of patents and their impact on the American way of life.

America’s power is built on telling copyright and patent holder to get bent.

Case in point: Hollywood. It began as an attempt to escape Edison, who was always trying to chase down infringers.

Basically, rampant IPR piracy had a bigger and better impact on America than IPR law conformity, which is why music tends to sound the same and Fast and Furious 9 is in production.

Scary Devil Monastery (profile) says:

Re: Re: Re:7 Re:

" But even you would agree about the historical context of patents and their impact on the American way of life. Or are you a Taliban/ISIS religious zealot?"

Can’t even tell if it’s the real Bobmail/Blue/Jhon writing that or some troll trying to emulate him.

Either way it’s a fairly classic tactic to run the "either you agree with me or you’re a monster of a sort completely unrelated to this debate" red herring rhetoric.

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bhull242 (profile) says:

Re: Re: Re:7 Re:

I’m afraid you’re quite mistaken. Against current and some proposed specifications of copyright law, particularly regarding duration, DMCA notifications, and anti-circumvention restrictions? Sure. Opposed to overenforcement or abuse of patent and copyright law? Absolutely. Completely against their existence? Absolutely not.

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Anonymous Coward says:

Re: Re: Re:4 Re:

Modern Refrigeration (1805, O Evans)
Solar Cell (1883, C Fritts)
Airplane (1903, W Wright & O Wright)
Transistor (1947, J Bardeen & W Brattain)
LED (1962, N Holonyak JR)
LCD (1964, G H Heilmeier)
Sat Nav Systems (1960, Johns Hopkins University) & GPS (1972, B Parkinson, et al)
Mobile Phones (1973, M Cooper)
Internet (1983, DARPA & NSF)

…interestingly this next one is not a British invention…

Tea Bag (1903, T Sullivan)

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bhull242 (profile) says:

Re: Re: Re:3 Re:

Well, England and France made some pretty significant contributions to humanity, and China gave us paper, rice, noodles, and ketchup. Japan has also been responsible for a number of advances in technology and car manufacturing. Germany has had some amazing research for us. I don’t recall which country the printing press originated from, but it sure wasn’t the US.

And most of these advances existed outside of copyright and patent law.

Oh, and by the way, our patent and copyright law originated from Britain.

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That One Guy (profile) says:

Re: Re: Re:7 Re:

Checking wikipedia would seem to confirm it.

In the 17th century, the Chinese mixed pickled fish and spices and called it (in the Amoy dialect) kôe-chiap or kê-chiap (鮭汁, Mandarin Chinese guī zhī, Cantonese gwai1 zap1) meaning the brine of pickled fish (鮭, salmon; 汁, juice) or shellfish. By the early 18th century, the table sauce had arrived in the Malay states (present day Malaysia and Singapore), where English colonists first tasted it. The Malaysian-Malay word for the sauce was kicap or kecap (pronounced "kay-chap"). That word evolved into the English word "ketchup". English settlers took ketchup with them to the American colonies.

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Wendy Cockcroft (profile) says:

Re: Re: Re:4 Re:

@bhull242, the printing press was invented in China. Since their alphabet has at least 72 glyphs, it didn’t take off. They also invented the typewriter, which failed for the same reason. When the West got hold of these things they took off because our alphabet has only 26 letters.

bhull242 (profile) says:

Re: Re: Re:4 Re:

I’m sorry, but I believe you’re replying to the wrong person or are misunderstanding something. I was specifically listing items invented/created outside the U.S., with particular focus on things that were created without assistance from patent or copyright law. That was my point. I was refuting the idea that the majority of things with long-term benefits for humanity owe their existence/discovery to U.S. patent or copyright law.

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Wendy Cockcroft (profile) says:

Re: Re: Re:3 Re:

As an example, name a country with more valuable and long lasting contributions to humanity than the USA.

Greece. They gave us the building blocks of civilisation including principles still in use today in the following areas:

  • Architecture
  • Mathematics
  • Philosophy
  • Ethics
  • Science
  • Language
  • Medicine
  • Civil engineering

I’d say the same for Rome, which borrowed heavily from Greece. We still use elements of their:

  • Language
  • History
  • Warfare tactics
  • Architecture and construction techniques
  • Roads (in the UK and across Europe, where they built them)
  • Civil engineering
  • Franchising and regime change principles (they wrote the book on this, having perfected the Greek client state system)
  • Administration and record keeping techniques

China gave us the following during the Renaissance. We were too ungrateful and rude to thank them for:

  • Paper
  • Fireworks
  • Printing
  • Civil engineering
  • Ice cream

Among other things.

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bhull242 (profile) says:

Re: Re: Re: Re:

Actually, none of them have. They’re opposed to overenforcement, expansion, and abuse of copyright and patent laws as well as the long duration, but none have said that copyright or patent laws should be abolished entirely. You literally don’t know what you’re talking about.

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Scary Devil Monastery (profile) says:

Re: Re: Re:

"I don’t think anyone was saying to abolish copyright and patents completely. At least, not in this article or prior to your comment."

Not yet, but to show willing I’ll pitch in my two cents and state that copyright is so fucked up from the core principles and up we’d be better off abolishing it completely and replace it with a creators right to stand as origin (paternity) and some commercial restriction when it comes to actually selling copies in bulk without clearance.

Anonymous Coward says:

Sadly, as soon as someone slaps "non-commercial" on something, the lawyers immediately interpret this as meaning "free", "not worth anything" and "OK to steal with impunity".

Wikia (aka FANDOM Inc.) is a dumpster fire in this regard. They have many projects (Memory Alpha, Gamewikis, Lostpedia) which were founded in 2004 or 2005 under some form of the Creative Commons CC-NC licences (some of which add additional conditions, like attribution, share-alike or – in one case – no derivatives). Wikia got control of the domains under these projects by buying them from the original founders, usually over the objections of the author communities who created the work. The deals are invariably a mess of non-disclosure and non-disparagement clauses not only prohibiting the vendors from speaking out, but concealing that they’d been contractually gagged. Wikia then slipped some very nasty surprises into their terms and conditions in 2012, opting themselves out of the non-commercial terms. All that content, from way back in 2005 or whenever, is still online and every edit to those pages since then (or any translation of those pages to other languages) is a derivative work… which should’ve been subject to the original licence terms, not Wikia’s 2012 monstrosity which claims the users "agree" to Wikia’s stealing non-commercial content for blatantly commercial use. By 2019? Go to memory-alpha.org and get a notice that the content is CC-NC with attribution, and immediately under that notice is a huge display ad for Amazon or TD Bank or some other huge corporate behemoth.

Complain to a lawyer and the lawyer will probably say that to litigate this in anything higher than a small claims court could cost $30-100k and it’d be an uphill battle to convince the judge that actual economic harm was done if the content Wikia/FANDOM has allegedly stolen is under a "free licence". Odds are, most judges aren’t particularly aware of the wiki concept or of the Creative Commons, so some very basic concepts would have to be explained and documented in excruciating detail… by well-heeled senior counsel at a few hundred dollars an hour. Most victims can’t afford this, and the few who can will likely be offered an out-of-court settlement with a token payout in return for a waiver of all liability, a non-disparagement clause (silencing the victim, not the wiki farm) and a non-disclosure agreement… allowing the infringement to continue unabated.

And sadly, corporations have played just as fast and loose with the commercial version of the Creative Commons licences. The licence says they have to share alike; that didn’t stop Internet Brands from suing some of its users (authors) when they tried to leave Wikitravel and take their content with them to Wikimedia-backed Wikivoyage in 2012. By the wording of the CC BY-SA 3.0 licence, the refusal to share alike should’ve ended with the termination of Wikitravel’s licence to use the content… but it didn’t. All that was left after a very expensive lawsuit was an out-of-court settlement in which both versions continue to exist – allowing Wikitravel to crush Wikivoyage with the search engines’ duplicate content penalty for years. The newer CC BY-SA 4.0 licence is worse, as it kicks the teeth out of whatever rights the authors had to get infringing uses taken down.

And then there’s the whole issue of content created for one purpose being reused in offensive ways for something else, which this ridiculous free licence does clearly permit. Take a photo of your Boy Scout troop for a Wikipedia article on [[Boy scout]]s, then wonder how that photo ended up on Wikia on a wiki eroticising spanking. You agreed to the stupid free licence, so you just flushed your rights down the loo. CC BY-SA 4.0 only makes this worse by expressly signing away "personality rights", so what happens if a user submitted something under an older CC version with no idea that the later revision (which might not have existed at the time) would merely sell out authors’ rights further.

The people drafting these free licences are just as vulnerable to being lobbied as anyone else, and "licenced under X or any subsequent version" is a blank cheque to the creators of the X licence to sell you down the river.

Sadly, the legal system does need to catch up and understand the difference between "licenced for non-commercial use with attribution" and just plain public domain or "free". They’re not the same but, as long as the services of senior intellectual property counsel are anything but free, the abuses will continue.

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