Important Ruling On Perennially-Problematic Creative Commons Non-Commercial License

from the NC-stands-for-'not-clear' dept

Techdirt has been warning about the problems with the Creative Commons Non-Commercial License (CC NC) for many, many years. Last September, Mike wrote about an important case involving the CC NC license, brought by Great Minds, an educational non-profit organization, against FedEx, the shipping giant. Copy shops owned by FedEx photocopied some of Great Minds' works on behalf of school districts. The material had been released by Great Minds under a CC BY-NC-SA 4.0 license -- that is, the Attribution-NonCommercial-ShareAlike license. The issue was whether a company like Fedex could make copies on behalf of a non-commercial organization, of material released under a license that stipulated non-commercial use. Happily, the judge in the case has ruled that it can (pdf):

At issue on this motion to dismiss is whether the allegations that FedEx has copied the Materials at the behest of one or more school districts and charged the school districts for that copying at a rate more than FedEx's cost states a claim for violation of GM's copyright. There is no claim that the undisclosed school districts are using the Materials for other than a "non-Commercial purpose" or that FedEx has copied the Materials for any other entities or for its own purposes. As so framed, FedEx's copying of the Materials is permitted by unambiguous terms of the License and the motion to dismiss is granted.

That's a sensible result: FedEx was simply an intermediary making copies on behalf of a non-profit organization, even if FedEx extracted normal profits in the course of doing so. But it's also important, because if the judge had found against FedEx, the wider consequences for the CC-NC license would have been disastrous. A few were spelled out in the August 2016 letter from Creative Commons Corporation's lawyers (pdf) seeking permission to file an amicus brief:

a CC BY-NC-SA 4.0 license would be of decidedly limited value if the licensor could invariably sue any for-profit intermediary engaged by the end user in the course of carrying out the ultimately permitted use. And the results would be absurd. Under the plaintiff's interpretation, school districts could not engage a parcel service to send copies of the licensed works to schools; could not use an internet service provider to host the works online for use in the classroom; or, more unworkable still, could not even email a digital file through a commercial network for receipt by students and educators

Although everything turned out fine in this case, it's worth noting that the problem was caused -- yet again -- by the ambiguous nature of the CC-NC license. Moreover, we are quite likely to see yet more court cases as a result of the lack of clarity around the definition of non-commercial use. It's hard not to feel that this particular Creative Commons license is more trouble than it's worth.

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  1. icon
    Gwiz (profile), 9 Mar 2017 @ 2:13pm

    Re: Re: No, that's not what they are doing

    If FedEx were to advertise.

    What difference would that make? You don't believe in the first amendment?


    The Supreme Court says that commercial speech that concerns unlawful activity is not protected by the First Amendment.

    See Central Hudson Gas & Elec. Corp. v. Public Service Comm'n

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