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.

Filed Under: copyright, creative commons, non-commercial, print shops
Companies: fedex, great minds, office depot


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  1. icon
    Samuel Abram (profile), 9 Jan 2020 @ 4:09pm

    Re: 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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