Creative Commons Continues To Try To Help Courts Understand What Its NonCommercial License Means

Over the years we’ve expressed some concerns about the NonCommercial license option from Creative Commons. Even as we’re incredibly supportive of CC, the NonCommercial license often seemed to raise more questions than answers — to the point that some have argued that it actually harmed CC’s brand and resulted in significant confusion for how CC licenses work. There have even been suggestions that CC should drop the NC license option altogether.

To its immense credit, people at Creative Commons have appeared to take these concerns quite seriously over the past few years, doing quite a bit of work to try to clarify what NonCommercial means for the purpose of the license. Our specific concern is that NonCommercial could mean all different things to different people. If you’re using a NonCommercial CC-licensed image on a personal blog and you have ads on that blog (even if you don’t make much money from it) is that non commercial? If you use it in a tweet and your Twitter bio promotes your business is that non commercial?

Two years ago we wrote about Creative Commons stepping in to file an amicus brief in a case that raised some specific issues concerning a NonCommercial license. An educational non-profit, Great Minds, sued FedEx over FedEx Office shops photocopying some Great Minds works for educational entities, even though the works were licensed under CC’s BY-NC-SA 4.0 license. Great Minds argued that because FedEx made money from copying, it’s “commercial” and thus in violation of the license. Creative Commons stepped into that lawsuit and explicitly stated that Great Minds interpretation was wrong.

In the FedEx case, both the district court and the 2nd Circuit appeals court rejected Great Minds’ interpretation and tossed out the lawsuit saying that the license in question did not limit FedEx from charging for copies. Great Minds also filed a nearly identical case against Office Depot in California, which also was dismissed, despite Great Minds claiming that this case is different than the FedEx one (specifically, it argued that Office Depot employees were “actively soliciting” schools to copy Great Minds’ works). The court didn’t buy it.

That case has now been appealed to the 9th Circuit (who, as we’ve noted all too frequently, mucks up copyright cases). And Creative Commons is back again asking the court if it can file an amicus brief again. This seems like the perfect situation for an amicus brief, given that Creative Commons certainly should understand its licenses the best. The proposed brief is well worth a read.

Creative Commons appreciates the valuable contributions to the
development of open educational resources made by Great Minds, along with its
use of a standard CC public license to enable broad reuse of the materials it
produces. However, its interpretation of the Creative Commons license at issue in
this lawsuit is incorrect. As the U.S. Court of Appeals for the Second Circuit
correctly determined in Great Minds’ prior suit against another copy shop, FedEx
Office, the license authorizes a bona fide non-commercial user to discharge her
licensed rights by directing a third party like Office Depot to make copies at her
instruction. Creative Commons welcomes and respectfully seeks a similar holding
from this Court:

Under the Creative Commons “NonCommercial” license
at issue, a bona fide non-commercial user may engage
contractors to exercise the non-commercial user’s own
licensed rights on behalf and at the direction of the noncommercial
user, irrespective of whether the contractor is
itself non-commercial actor.

Going into details, CC explains how Great Minds is completely misinterpreting its NC license term:

The CC BY-NC-SA 4.0 license fully authorizes the conduct that Great
Minds contends on appeal is unlawful. The only licensee here is the school
district. Under the terms of the license and prevailing principles of law, a school
district may permissibly use Office Depot as a means by which the school district
exercises its own licensed rights. The license does not restrict the school district to
using only its own employees to exercise those rights; it allows the school district
to engage anyone—employees and non-employee contractors alike—to do so. To
establish a rule that denies a licensee the ability to use non-employee actors to
exercise the rights it is lawfully entitled to exercise would contravene the plain
language of the license and established precedent.

To be sure, Office Depot could not on its own initiative make copies of
Great Minds’ curricular materials and sell them for a profit. In that scenario,
Office Depot would not be acting at the direction of a bona fide licensee, would
not be shielded by any bona fide licensee’s license, and thus would itself need to
rely on the terms and conditions of the CC BY-NC-SA 4.0—including limiting its
conduct to non-commercial purposes when reproducing the licensed work. But
that is not what is alleged here. Instead, on the facts as pleaded, the school district
has, under its license from Great Minds, engaged Office Depot to make copies and
paid Office Depot for the service, just as it could have paid an employee to make
the same copies at an Office Depot store. In that scenario, Office Depot is not a
licensee in its own right, and its own, independent purpose is analytically
irrelevant.

Hopefully the 9th Circuit follows the lead of the 2nd and agrees that Great Minds is misreading the NC part of the license. This would go a long way towards further establishing that NC licenses aren’t so limiting.

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