U.S. Appellate Court Enforces CC’s Interpretation of NonCommercial

Diane Peters

The U.S. Court of Appeals for the 9th Circuit reaffirmed Creative Commons’ interpretation of activities that are permissible under the NonCommercial (NC) licenses, which allow bona fide noncommercial reusers to hire out the making of copies of NC-licensed content, even to profit-making businesses such as Office Depot and FedEx Office. Below is an excerpt from the decision:

Under the License, a non-commercial licensee may hire a third-party contractor including those working for commercial gain, to help implement the License at the direction of the licensee and in furtherance of the licensee’s own licensed rights. The License extends to all employees of the schools and school districts and shelters Office Depot’s commercial copying of Eureka Math on their behalf.”

This is the second time a federal appellate court in the United States has adopted CC’s interpretation of NC. The first decision was published by the U.S. Court of Appeals for the 2nd Circuit last year (summarized here) and involved copying by FedEx Office at the behest of school districts admittedly using the works for noncommercial purposes. 

CC’s position has been clear in both of these cases: so long as commercial actors are not acting independently for their own commercial gain but solely on behalf of noncommercial actors, they are protected by the license granted to the noncommercial actors.

After all, entities must act through employees, contractors, and agents as a necessity. To require every teacher, employee (including part-time student employees), and third-party contractor making copies of NC licensed works to forego payment for their services would make it impossible for those types of licensees to use the works and facilitate sharing for noncommercial purposes.

This is a huge win for educators, school districts and, most importantly, students.

All students deserve access to effective open education resources (OER) and meaningful, inclusive learning opportunities. These NC-licensed OER will help ensure students have access to the effective learning resources they need by allowing schools to seek assistance in making copies when they do not have sufficient resources to do so on their own. Further, because these resources were created using public funds received by the New York State Education Department from the U.S. Department of Education, it’s important that they remain openly licensed.

In October, Creative Commons requested permission to file an amicus and participate in oral argument. Our requests were granted, and our amicus brief (friend of the court brief) with the 9th Circuit became part of the record. Andrew Gass of Latham & Watkins argued the case on behalf of CC (video). 

A very special thanks to Latham & Watkins for their hard work and diligence over the course of both the 2nd Circuit and 9th Circuit cases.