Odd lawsuit fails to ding FedEx for allowing copies of CC-licensed material

Creative Commons, the free culture licensing scheme, has survived a far-reaching legal challenge to its "noncommercial" licensing platform. It was a first-of-its-kind dispute, one that threatened Creative Commons' purpose of fostering the sharing of content, both online and offline.

Creative Commons, often known as CC, allows content creators to share their works with various licenses. The license at issue here is known as BY-NC-SA 4.0. Content under this license can be freely used by anybody for "noncommercial" purposes if the original source is credited. There are more than 1.1 billion works within the CC licensing umbrella, and 150 million licensed for noncommercial use.

However, a Washington, DC-based nonprofit educational stalwart called Great Minds (GM) tried to turn the CC noncommercial licensing scheme on its head. Great Minds develops K-12 curriculum for schools throughout the US and licenses its product under the CC noncommercial license. The nonprofit sued FedEx for profiting when school representatives used FedEx to duplicate the materials so they could be distributed in class. Great Minds demanded royalties from FedEx, which refused. Great Minds sued last year, claiming FedEx was infringing its content, which also enjoys US copyright protection.

Creative Commons argued (PDF) that if Great Minds were to have prevailed, the outcome would "thwart the purpose of the CC By-NC-SA 4.0 license."

A federal judge, Denis Hurley of the Eastern District of New York, dismissed (PDF) Great Minds' suit Friday.

At issue on this motion to dismiss is whether the allegations that FedEx has copied the Materials at the behest of one or more school districts and charged the school districts for that copying at a rate more than FedEx’s cost states a claim for violation of GM’s copyright. There is no claim that the undisclosed school districts are using the Materials for other than a "non-Commercial purpose" or that FedEx has copied the Materials for any other entities or for its own purposes. As so framed, FedEx’s copying of the Materials is permitted by unambiguous terms of the License and the motion to dismiss is granted.

In response, Creative Commons said: "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."

The judge ruled that the CC license at issue "does not limit a licensee's ability to use third parties in exercising the rights granted by" Great Minds.

"As 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... make copies, in their stead," Judge Hurley ruled. "Nor can the reservation of rights contained in the License be read to preclude a licensee from hiring someone to make copies of the Materials so the licensee can use them for a 'nonCommerical' purpose."

The judge, however, did not award FedEx attorneys fees, despite copyright infringement cases having a clause that allows the prevailing party to collect them from their opponent. In this instance, however, Judge Hurley said they were not merited. "First, plaintiff’s claim was not frivolous and there is no claim that GM was motivated by bad faith. Moreover, GM’s claim, while unsuccessful, was not objectively unreasonable," Judge Hurley ruled. "Furthermore, it would appear that no court has addressed whether commercial copy services may reproduce materials for a licensee under the Creative Commons License."