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. identicon
    Anonymous Coward, 10 Jan 2020 @ 9:26am

    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 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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