Classroom images by Jeff Peterson, CC-BY-2.0

Diane Peters and Michael Carroll
August 30, 2016

Creative Commons has requested permission to file an amicus brief in litigation between Great Minds and FedEx Office and Print Services, Inc.  At the center of the litigation is the proper interpretation of the CC Attribution-NonCommercial-ShareAlike 4.0 license, known as BY-NC-SA. The case is pending in the U.S. District Court for the Eastern District of New York before Judge Hurley. While we rarely file amicus briefs, we feel strongly that the correct interpretation of the legal code here is essential to the utility of the NC licenses for both licensors and licensees, including those using any of the more than 370 million works that are licensed under one of CC’s NC licenses.

In this case, Great Minds claims that FedEx Office violated the terms of the BY-NC-SA license Great Minds applied to educational materials when FedEx Office copied material at the direction of school districts for non commercial use in classrooms. While it is undisputed that the use of these materials by public school districts is non commercial (as defined in the CC license), the claim against FedEx Office is that it cannot make copies for the school districts—even if it does so at the direction of the school districts and solely in service of that permitted NC use. CC disagrees with this interpretation and has requested permission to explain to the court why the license clearly allows this activity under these circumstances.

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.

As a result, we believe this litigation is important to the usability of the NC licenses, which feature prominently in the OER ecosystem at present. Moreover, we pledged to our community during the 4.0 versioning process we would do more to clarify how the NC limitation works in the practical world. We will continue to work closely in collaboration with CC United States as this litigation unfolds. Watch here for updates as this case progresses.