Recently, the U.S. Court of Appeals for the 2nd Circuit ruled that a commercial copyshop may reproduce educational materials at the request of a school district that is using them under a CC BY-NC-SA license. The decision aligns squarely with the arguments made by Creative Commons in an amicus brief submitted to the court. Although the court denied our request to admit the amicus brief, the brief remains publicly on file with the Second Circuit.

The Litigation

The case involved open educational resources (OER) used by schools for non commercial purposes. The school districts asked FedEx Office to reproduce the materials for use in their classrooms. The OER in question were created by Great Minds using public funds and licensed by Great Minds under CC BY-NC-SA 4.0. Great Minds claimed that the school districts were not allowed to engage FedEx Office to reproduce the materials, and that because FedEx Office made profit while producing the requested copies, they were violating the license. Importantly, Great Minds never alleged that the school districts’ use of the reproduced materials violated the NonCommercial restriction of the license. The central question in the case was whether a licensee – a school district – that is properly using the work for non commercial purposes may outsource the reproduction of the works to another who makes a profit doing so.

In granting FedEx Office’s motion to dismiss, the lower court ruled that under U.S. law, a licensee (here a school district) is permitted to use a third party to exercise rights it has under a CC license, just as with other licenses. It relied on U.S. case law that allows a licensee to use third parties where the license does not expressly prohibit it. The district court noted that the CC license specifically allows licensees to share the licensed content “by any means or process . . . such as reproduction . . . .” thereby giving “licensees broad latitude in exercising their licensed right to reproduce the [M]aterials for non-commercial use.”

“In sum, the unambiguous terms of License permit FedEx to copy the Materials on behalf of a school district exercising rights under the License and charge that district for that copying at a rate more than FedEx’s cost, in the absence of any claim that the school district is using the Materials for other than a ‘non-Commercial purpose.’ The motion to dismiss is granted.”

Great Minds appealed the decision to the U.S. Court of Appeals for the Second Circuit. Creative Commons filed a request to submit an amicus brief to provide guidance to the court on the proper interpretation of the BY-NC-SA 4.0 license. Our request was denied.

Last week, the Second Circuit agreed with the decision of the district court and found Great Minds’ argument that FedEx required a separate license in order to reproduce the works at the school districts’ request “unpersuasive.”

“Under Great Minds’ reading of the [CC] License, each teacher and administrator who handles the Material is a “downstream recipient” who acts as an independent licensee, even if their use of the Materials is compelled by the terms of their employment. If a license were intended to achieve such a radical result, we would expect a clear statement in the license to that effect….[it] contains no such statement.”

Further, the court agreed with the lower court that the “unambiguous import” of the provision allowing a licensor to collect royalties for all commercial uses does not apply because FedEx Office’s services did not exceed the scope of the license granted to the school districts.

We stand behind the legal rationale of both courts. The decisions are consistent with the intention of the licenses as we wrote them and how they are used day-to-day by millions of creators and re-users. Based on the facts and circumstances as presented by Great Minds, CC sees no difference between an employee of a school district hitting PRINT at a FedEx Office store, and that of a FedEx Office employee doing so when hired by the school district to do so on their behalf and at their direction.

Why File a ‘Friend of the Court’ Brief?

One of our most critical roles as a responsible public license steward is weighing in on cases when necessary and actively providing guidance and education about our licenses. Fortunately, in the 16 years since our licenses were first published, the number of lawsuits turning on the interpretation of a CC license has been extremely low, especially considering that more than 1.3 billion CC-licensed works are available on the internet and have been reused by many more. CC licenses have fared incredibly well in court, and disputes are rare when compared to the number of lawsuits between parties to privately negotiated, custom licenses.

As we consider weighing in on disputes with commentary or the filing of an amicus brief, we cannot emphasize enough that CC is always acting as an advocate for the licenses and their proper interpretation, never in favor or against a particular litigant. Our goal when we do speak out is to educate the courts and the public about how our licenses work, and to ensure as much as possible that legal decisions interpret the licenses correctly. Sometimes facts play a role in the decision, but fact-finding is not CC’s role. Our interest is making sure that whatever the facts find, the licenses are interpreted correctly in relation to them.

What’s next?

We will continue to track this and other litigation and disputes, including a similar case pending before the U.S. Court of Appeals for the Ninth Circuit brought by Great Minds against Office Depot that remains pending. As steward, we will constantly monitor these important developments with an eye toward usability of our licenses and the proper alignment of creator and re-user expectations.