Copyshop Covered By “Non-Commercial” Creative Commons License–Great Minds v. FedEx
Great Minds developed a math curriculum called Eureka Math. It commercializes the Eureka Math materials itself but also released the materials pursuant to a Creative Commons Attribution-NonCommercial-Sharealike (CC BY-NC-SA) 4.0 license. Great Minds discovered at least two circumstances where school districts used FedEx as a copyshop for the materials. Great Minds sued FedEx for copyright infringement because it profited from the copying. FedEx defended that it was covered by the CC license to the school districts.
The court grants FedEx’s motion to dismiss because “FedEx’s copying of the Materials is permitted by unambiguous terms of the License.” The court cites some cases saying that a licensee can hire delegees unless expressly prohibited, which the CC license doesn’t do. Therefore, “[a]s the school districts are the entities exercising the rights granted by the License, it is irrelevant that FedEx may have benefitted by having been hired by them to act, viz. make copies, in their stead.” The court distinguishes some copyshop fair use cases because FedEx isn’t relying on fair use and the school districts had the requisite authorization. The court summarizes:
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.”
* CC License Upheld. The court doesn’t question the CC license’s enforceability because Great Minds apparently didn’t contest the issue. As a result, the court doesn’t discuss any of the thorny conceptual issues about how CC licenses are formed or the contract/conditions-on-copyright divide exposed by the Federal Circuit’s Bowers v. Baystate ruling. Even though the issue wasn’t actually contested, this ruling might emerge as one of the strongest citations that CC licenses are enforceable.
* The “Delegee” defense. Defendants often defend on the basis that they are just helping a customer engage in legitimate activities. I tried to think of some examples where I’ve seen this argument, and I couldn’t come up with a comprehensive list. Some of the examples that came to mind: MAI v. Peak and the related software repair cases; US v. Megaupload (at least with respect to private storage); sideloading services (such as BWP v. Polyvore); and the Cablevision/Aereo line of cases. I’m sure we could come up with others if we spent a little more time thinking about it. Although we’ve seen the rise of “volitional” copying as a defense to direct infringement, normally copyright law doesn’t excuse copying even if it’s done at the request of third parties. Direct infringement is strict liability; vicarious infringement covers situations where the defendant might claim just to be acting as the agent of some infringer; and contributory infringement can fill in whatever gaps are left between direct and vicarious infringement.
Yet, the “not me” defense succeeded here. Why? Perhaps it’s best to view this case as a pure licensing case. The school districts were authorized to make copies by the CC license and there was no express contractual preclusion on delegation. Thus, FedEx had more licensing cover than we might find in cases where the defendant’s customer has no contractual license, such as Aereo or Megaupload or the sideloading cases; and the software repair cases involved licenses that typically would restrict delegation.
* The term “Non-commercial” is incoherent. Many legal doctrines distinguish between “commercial” and “non-commercial” activity, and that distinction is usually incoherent. We have a whole chapter on this in our Advertising Law book, but students routinely finish that chapter feeling bewildered. Unfortunately, CC has incorporated all of this semantic ambiguity into its licenses. CC is aware of this problem, and in 2009 it released a 255 page report “Defining ‘Noncommercial’: A Study of How the Online Population Understands ‘Noncommercial Use.‘” The report could be viewed as pretty damning of CC’s terminology; the executive summary acknowledges that “with the exception of uses that earn users money or involve advertising – at least until specific case scenarios are presented that disrupt those generalized views of commerciality – there is more uncertainty than clarity around whether specific uses of online content are commercial or noncommercial.” I can see why Great Minds might be grousy here–how did a “noncommercial” license allow FedEx to profit from its copyrighted materials? To many people, that’s the kind of word-twisting that makes people hate lawyers.
* Not the First Time a CC Licensor Got Surprised. This raises a related issue about how well copyright owners understand what it means to release content under a CC license. We saw a lot of CC adoptions last decade due to social pressure, which I think may have eased a bit. For example, in the academic community, I see more angst nowadays about open access (especially not having content behind paywalls) than about reuse terms. Still, because of the social pressure, I know some copyright owners adopted CC licenses even if they didn’t understand the full consequences of doing so. Here, Great Minds may have better understood the general consequences of its CC license (i.e., schools could copy/reuse the material without charge); so perhaps it just got blindsided by one aspect of it.
* Implications for Other Copyshop Cases. We’ve seen a fair amount of copyshop cases over the years, but between this ruling and the Georgia State fair use rulings, the pendulum seems to be swinging in their favor. Does this mean we’re nearing the end of copyshop litigation? I’d love to think so, but no. In this case, FedEx’s free pass is fundamentally predicated on its customers having the appropriate license to make copies, something that won’t usually be true when professors or schools ask to copy non-CC materials. Still, if this case holds up, it is good news for for-profit copyshops copying CC-licensed materials; and when copyshop customers provide non-CC materials for copying, the Georgia State and other fair use cases may provide partial defenses.
Case citation: Great Minds v. FedEx Office & Print Services, 2:16-cv-01462-DRH-ARL (E.D.N.Y. Feb. 24, 2017)