Update: Shortly after publishing this post, we received word that Judge Hurley today has granted defendant FedEx Office’s motion to dismiss. You can read the order here [pdf]. This is the very result CC advocated for in its motion for leave to file an amicus brief,and we’re delighted with the outcome, the ruling, and the court’s analysis. The court found on the facts as presented by Great Minds, FedEx’s copying is permitted by the “unambiguous” terms of BY-NC-SA. Look for an in-depth post on the decision and its implications for users of the NC licenses and users of NC-licensed works next week.
Earlier this week, Judge Hurley issued an order denying our motion for leave to file an amicus brief at this stage in the litigation between Great Minds and FedEx Office. The central question in that case turns on the proper interpretation of the CC Attribution-NonCommercial-ShareAlike 4.0 International license (BY-NC-SA). In our motion, we sought permission to file a brief in support of FedEx Office and to assist the court in its interpretation of the license. As detailed in the motion, we believe it’s clear based on the facts alleged that the conduct engaged in by FedEx Office when it copied educational materials at the direction of school districts, whose use everyone agrees is non commercial, is not a violation of the license. You can read our rationale for this interpretation in our earlier blog post and in our motion [PDF] seeking permission to file an amicus brief, and learn why we’re fighting to protect non commercial uses here.
We’ll be monitoring the litigation for an update on the pending motion by FedEx Office to dismiss the case. We look forward to seeing how the court resolves the issue consistent with its order, and look forward to participating in the litigation if our assistance is needed at a later stage.
A special thanks to Andy Gass and Jonathan Ellis, our pro bono counsel at Latham & Watkins, for their assistance with the motion and amicus brief.