People familiar with Creative Commons have been worried recently about a litigation in the United States regarding the non-commercial element in the licences, which had the potential to negatively affect the integrity of the licensing environment by narrowly defining non-commercial use.
The case is between Great Minds, a non-profit organisation that produces educational materials for US schools, and Fedex Print an Office Services, a branch of Fedex that provides, as the name implies, printing and other office solutions. Great Minds produces and sells several school materials, including a maths textbook entitled Eureka Math, and they also released this under the Creative Commons Attribution-NonCommercial-ShareAlike . As the name implies, this licence allows for the re-use of the copyright work as long as licensees do so complying with three main conditions: they attribute the author, they do not re-use of non-commercial purposes, and they share any resulting derivatives using the same licence.
On October 2015, Great Minds found out that several schools in Michigan were printing out the licensed material for distribution in their school (an act restricted by copyright), but they did not sue the schools ordering the printing, but rather sued the printing service provider as it is doing so for commercial purposes. Fedex obviously replied that they were not the licensees, they were simply providing a service for the school districts that were the licensees, and as educational institutions were exercising their non-commercial rights as granted by the licence.
It is evident that the argument by the plaintiffs is, to put it in not very polite terms, insane. If we were to accept that any commercial service would be liable while helping or assisting a legitimate licensee’s use of a work, it would make the non-commercial clause in Creative Commons licenses so narrow as to be reduced out of existence. For example, an Internet service provider could be sued because it helps to disseminate a non-commercial work online which has been legitimately shared by a licensee for non-commercial purposes, or a studio that has been hired to make a sound recording of a non-commercial song, which is to be released non-commercially, could also be sued. As CC explained in a blog post about the litigation:
“Entities using CC-licensed works must be free to act as entities do—including through employees and the contractors they engage in their service. To preclude an entity from using contractors to carry out otherwise-authorized work is not supported by the law, and is not prohibited by the terms and conditions of the NC license. A contrary understanding would mean that in many cases, a bona fide noncommercial licensee could not engage any service that charged a standard fee in the course of the non commercial user’s exercise of its legitimate rights under the license. Instead, only those with the means and resources to own all points in the reproduction and distribution chain could use NC-licensed material. If that were so, the value of the license would be significantly diminished.”
CC tried to file an amicus brief in support of Fedex, but their plea was rejected. However, the judge has now granted a motion to dismiss the case, siding with CC’s and the defendant’s opinion. The judge makes a very clear enunciation of what is wrong with the line of thought put forward by Great Minds:
“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.”
A great result, it is good to read that logic and rationality win. Moreover, here we have yet again another legal decision that recognises the legal validity and effectiveness of Creative Commons licensing. I am old enough to remember when the lack of court cases was used by CC detractors against the movement.
On a related note, I have been for long a big proponent of the idea that open licences are contracts (see here for a more developed formulation of this debate). I was delighted to read that Judge Hurley agrees when he states that “Principles of contract law are generally applicable in the construction of copyright licenses and other transfers of rights.” Scratch one more victory for the contract camp.