Creative Commons Wants To Step Into Lawsuit Over Definition Of 'Noncommercial' In A CC License
from the this-could-be-interesting dept
Two decades ago, there were a series of lawsuits against copy shops over whether or not it was fair use for them to be photocopying educational materials for college coursepacks. Unfortunately (and, some of us still think, incorrectly) the courts ruled that this was not fair use. The end result was that the price of coursepacks shot up to astronomical levels (this happened while I was in college, and I saw coursepacks increase in price from $20 - $30 to well over $100, and they've gone up more since then).Earlier this year, it appears that a new version of this kind of lawsuit was filed by Great Minds, an educational non-profit, against FedEx, the shipping giant who also took over what used to be known as Kinkos copy shops, now rebranded as FedEx or FedEx Office. At issue: these copy shops owned by FedEx were photocopying some of Great Minds' works for educational entities. Great Minds says that FedEx is infringing on the copyright. If that was all there was to it, based on the cases back in the 90s, Great Minds would have a slam dunk of a case (unfortunately).
Here's the twist: the works in question, Great Minds released under the CC BY-NC-SA 4.0 license, or the Attribution-NonCommercial-ShareAlike license. So at the heart of this issue is what is meant by "noncommercial" in this license. Great Minds argues that because FedEx is profiting off the copying, it's commercial, and thus the license is violated and the copies are infringing:
This explicit limitation of the License to noncommercial use requires that commercial print shops, like FedEx, negotiate a license and pay a royalty to Great Minds if they wish to reproduce the Materials for commercial purposes – i.e., their own profit – at the request of their customers. Thus, this limitation benefits Great Minds and the public, too, by providing Great Minds with additional financial resources to develop new curricula, which in turn can be made available nationwide for free, noncommercial use, and otherwise to further its educational mission.Now, this is both an interesting question and a not particularly surprising one. For many, many, many years, I've pointed out some concerns I've had with the "noncommercial" license that Creative Commons offers, because "commercial use" is kind of a vague idea at times, and seems to open up the opportunity for nutty cases (like this one!). In fact, we've also noted that the offering of a "noncommercial" license has resulted in some problematic branding confusion for Creative Commons, sometimes leading people to think that it's only for people who don't want to make money. And people have made the suggestion that CC may want to drop or otherwise spin off those NC licenses to avoid the confusion.
To its credit, Creative Commons has actually tried to address this issue proactively over the last few years, and has been careful to take a lot of the feedback into account. And part of that has resulted in increasingly defined guidelines that clarify what is and what is not commercial use in the context of Creative Commons.
And that makes the latest news quite interesting as well. Creative Commons is asking to file an amicus brief in the case, arguing that Great Minds has seriously misunderstood what NC means in a CC license. CC doesn't beat around the bush either:
We seek to file an amicus brief explaining why Great Minds’ interpretation of the CC BY-NC-SA 4.0 license is wrong....Creative Commons further points out that agreeing with Great Minds could create a real issue as tons of NonCommercial CC licenses may not do what people expected them to do:
[....]
The point of Creative Commons licenses is to be useful tools that facilitate creative, socially constructive activity. Particularly (though not exclusively) where the licensee is an entity rather than an individual, the entity must be able to act as entities do, through employees and contractors alike. The artificial distinction drawn by Great Minds—between whether a school district employee pushes “copy” and pays FedEx Office for use of its copier, or a FedEx Office employee pushes “copy” on the same machine—would, if applied more broadly, preclude the use of most or all standard channels of dissemination and render the licenses all but useless. It would force users to choose between owning the entire chain of production or distribution, and leaving a trail of actionable copyright infringements in their wake. That is emphatically not how Creative Commons NonCommercial licenses were designed to work.
Finally, we note that Great Minds has argued that “granting FedEx’s motion would create bad public policy.” See Pl.’s Opp. to Mot. to Dismiss at 15. That is backwards. Creative Commons takes no view on whether, as a general matter, it is good or bad policy for creators to license works to the world-at-large under precisely the terms Great Minds seeks to enforce in this litigation—by using their own licenses, not ones from Creative Commons. But to twist the meaning of the CC BY-NC-SA 4.0 to engineer that result would be profoundly damaging. It would disrupt the settled expectations of innumerable users and creators of works governed by CC BY-NC-SA 4.0 licenses around the globe. And it would substantially diminish the utility of a license that enables the sharing of knowledge and creativity to build a more equitable, accessible, and innovative world.Hopefully, CC is allowed to weigh in... and the court realizes how this lawsuit is a misinterpretation of the NonCommercial license.
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Filed Under: copy shops, copyright, creative commons, fair use, non-commercial
Companies: fedex, great minds
Reader Comments
The First Word
“What is Fed-Ex charging for?
When Fed-Ex/Kinko's copies something they charge for the cost of the copy process. They are not profiting from the content that is copied. If they were copying and then marking it up further because of the content then Great Minds would have a point.Subscribe: RSS
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What is Fed-Ex charging for?
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Marketing
As others have stated, as it is, they are only making money off their copying service, completely independent of what content they are copying.
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FedEx is guilty of piracy
We need to shut down those industries that enable piracy.
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Re: What is Fed-Ex charging for?
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NC licenses are dangerous
https://meta.wikimedia.org/wiki/Free_knowledge_based_on_Creative_Commons_licenses
If this lawsuit fails, I hope CC will drop those licenses as suggested by http://freeculture.org/blog/2012/08/27/stop-the-inclusion-of-proprietary-licenses-in-creative-common s-4-0/
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Re: NC licenses are dangerous
I self-published a short story a few months ago under NC-BY; IIRC I declared my blog to be SA-BY. Different licenses for different types of content. (I'm thinking of changing the license on my short story the farther out I get from release; it's NC-BY now, maybe at five years I'll switch it to SA-BY, and then at ten years just BY. Ideally I'd like to publish more ebooks and use similar rolling license schemes, but I've got to actually write some stuff before I do that.)
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"Ignore the experts, here's what it REALLY means..."
If Great Mind's is wrong then there's nothing to sue over, as the actions performed by FexEx is perfectly within the scope of the licence, hence no infringement, and it's Great Mind's that's screwed up by thinking the licence is something that it's not.
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To Copy, or Not to Copy?
I have a LOT of problems with the exorbitant costs of books and material related to education. Some things are worthy of Capital Gains, but education should NOT be one of them, at the cost of ordered 'institutional graft' (where you MUST buy this book, or THAT package, to participate).
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Re: "Ignore the experts, here's what it REALLY means..."
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Could they change the meaning of the license?
It would seem to be more appropriate for Great Minds to change their license to one more appropriate, rather than trying to make CC fit their idea.
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Re: Re: "Ignore the experts, here's what it REALLY means..."
If you've got a 'standard' license and the person who uses a licence gets it wrong they should have no grounds to sue over 'violations' of that licence done by someone else who is following what the licence actually says, as that undercuts the entire purpose of using the 'standard' licence rather than a custom one.
They used a particular 'standard' licence, their understanding of what it does and does not allow is wrong, as such they should drop the case, chalk it up to the licence not being the 'right' one and change to one that means what they think it does, or throw together a custom one for their stuff. If FedEx or someone else violates the terms they throw together after that point then sure, then they've got grounds to take them to court.
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Re: "Ignore the experts, here's what it REALLY means..."
The fact that Creative Commons drafted the CC BY-NC-SA 4.0 license does not necessarily work in favor of Creative Commons' interpretation of the terms.
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Re: Re: "Ignore the experts, here's what it REALLY means..."
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Re: Re: "Ignore the experts, here's what it REALLY means..."
The only possible way this legal principle could be applied here would be against the party who supplied the contract -- that is, Great Minds when they decided on a CC BY-NC-SA 4.0 license.
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Re: Re: Re: "Ignore the experts, here's what it REALLY means..."
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Facts Can Change In Response to Law
At that date, a copy machine which could make twenty copies of a twenty-page document was still mechanically distinctive. It had collating trays and a sheet-feeder. The attendant pulled copies from the collating trays, and stapled them and stacked them. Nowadays, of course, there are machines which read an Acrobat file from a disk, pretty much like a computer printer, and do automatic stapling. I don't suppose it would be particularly difficult to design such machines to be full-on, self-service vending machines.
What you have here is people creating facts which are legally advantageous to themselves. I suspect that it would be economically rational for a middle school to own its own copying machine, or mass-production printer. A copy shop has to pay rent, etc. at a commercial location. A middle school can keep a copying machine in a closet in the basement. At this point, people seem to want reading material in electronic format more than they want it on paper. I doubt there's any real windfall to be gained by turning e-books into paper books.
Oddly enough, the last time I was in a copy shop was a couple of years ago, when my printer packed it in at tax time. So I exported the filled-out tax forms, via GIMP, to JPEG files (maximum compatibility), burned them to a disk, and carried it down to the copy shop. As Arlo Guthrie would put it, "Great Minds began to cry, because they could see it was a typical case of American blind justice, and there was just no way they were going to get to charge royalties on Form 1040, let alone on the dollar sum of line 37..."
More seriously, Great Minds' issue is that, in a crowded textbook market, they want schools to try out their books in a single classroom, in the belief that these books are free, and then to turn around and adopt the books for the whole school, and pay for those books. It is much the same situation as the Flat World business school textbooks. In both cases, the publisher is essentially seeking to secure textbook adoption on false pretenses. I realize a lot of people here do not have actual teaching experience. In a department common room/mail room, sample textbooks pile up like any other junk mail. The publisher is desperate to avoid having his book used for various inappropriate purposes, some on them having to do with dogs. Getting someone to even look at a book under those circumstances is problematic. A publisher can sometimes unfairly advance to the head of the line by shouting "free," and then recant his words.
https://www.techdirt.com/blog/casestudies/articles/20121108/16480920977/flat-world-knowledge-t aking-away-its-free-option-opens-up-opportunities-competitors.shtml
If I recall rightly, the General Public License deals with copying explicitly, saying what constitutes a fair copying fee, and anything beyond that is treated as an attempt to charge for the content. The creative commons license does not appear to address this point.
https://creativecommons.org/licenses/by-nc-sa/4.0/legalcode
The Creative Commons license ought to have a similar clause for printing. Printing costs are not in Moore's-Law free-fall, the way data copying costs are, so there would have to be some kind of adjustive mechanism, say, a fair print-off price might be the greater of ten cents per 8-1/2 X 11 page, and such prices as Creative Commons may from time to time publish.
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Re: Facts Can Change In Response to Law
Because some significant works are still offered only under GPLv2 (June 1991), it's probably also worth looking at the previous language.
“[A] fee”.
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Re: Re: Facts Can Change In Response to Law
"Accompany it with a written offer, valid for at least three years, to give any third party, for a charge no more than your cost of physically performing source distribution, a complete machine-readable copy of the corresponding source code, to be distributed under the terms of Sections 1 and 2 above on a medium customarily used for software interchange;"
This is a necessary provision, because otherwise, the distributer could simply raise the price of the source code until it became de-facto closed-sourse. This clause seems to be superseded by Section 6b) of GPL 3:
"Convey the object code in, or embodied in, a physical product (including a physical distribution medium), accompanied by written offer, valid for at least three years and valid for as long as you offer spare parts or customer support for that product model, to give anyone who possesses the object code either (1) a copy of the Corresponding Source for all the software in the product that is covered by this License, on a durable physical medium customarily used for software interchange, for a price no more than your reasonable cost of physically performing this conveying of source, or (2) access to copy the Corresponding Source from a network server at no charge."
Note the assumption that material can and should be distributed by a network server without money changing hands. Possibly GPL v.3 could be improved by stipulating that if you use a network server to distribute object code, you have to distribute source code the same way. Conceivably, a malicious distributer, especially of a modified work, could use the constraints of physical distribution to delay access to the source code of updates.
Now, the problems of free textbooks, etc., are somewhat different. It does seem to be necessary to print copies. Ideally, the end user, having been given a URL, should download and print his own copy on his home computer printer, but there are circumstances in which this is not feasible. Therefore, appropriate language would have to be drafted for the Creative Commons License, explicitly describing how a copy shop works, and drawing a clear line between making copies for someone who brings in an original copy, typically in electronic form, and speculatively producing paper copies for sale to third parties. That is of course the key distinction. If the customer comes in with an original copy, and he doesn't like the quoted prices, he can take his original copy, and walk out, and go somewhere else.
In practice, in most school or college settings, it is reasonable for the teacher or the school to give the students paper copies, as an incident of course enrollment or class attendence, without money changing hands. From what I can see, young people take to reading on the screen, like ducks to water, so the provision of paper copies should be fairly de minimus. Thge kind of edge case I can think of is a freshman course with five hundred students, and an instructor who is paid only a small fraction of the revenue generated by the course. Such an instructor might find it onorous to provide five hundred sets of reading materials out of his own pocket.
On further examination, Great Minds charges about $1500/year for a set of textbooks and worksheets for a class of 30 pupils for one subject. This is at least ten times reasonable printing and shipping costs. Asuming one worksheet per pupil per hour, it might be about twenty cents per page, and Great Minds' large volume ought to aloow them to use the comparatively inexpensive offset printing system, and have the worksheets printed in China, rather than using photo-copying.
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Re: Re: Re: Re: "Ignore the experts, here's what it REALLY means..."
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It's not different than your ISP providing a generic service. As CC makes clear, and as has been discussed here on Techdirt before, if I download a CC NC licensed piece of work my ISP is technically commercially benefiting from that because I pay my monthly ISP bills. But it would be ridiculous to think that this means CC-NC content can never be available on the Internet because people download such content and hence the ISPs indirectly benefit from the availability of such content and from providing it since ISPs are for profit.
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Re: What is Fed-Ex charging for?
If simply making a copy (and charging the same as any other content) was against CC-NC then the post office would be in trouble for ever shipping any CC-NC content. So if I order a CC-NC book it couldn't be delivered to me unless the freight service did so for free.
I couldn't download it because my ISP is a for profit entity and they would have to be the ones to provide it.
I would, essentially, have little practical way of attaining such content.
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Re: FedEx is guilty of piracy
The post office. People can order pirated stuff
ISPs
Copy centers
Printing presses
Copy machines
Computers
Humans, since we all copy each other
DNA
We're all just a bunch of evil stealing copying machines and the human race and all life should be obviated from existence.
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Re: Could they change the meaning of the license?
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Re: Re: What is Fed-Ex charging for?
Great Minds was attempting to sell a package worth something like $50,000 per year, for a single school, or half a million dollars or a school district. That means there would have been salesmen all over the place. One can imagine the school superintendent becoming progressively disgruntled as it became apparent that free did not actually mean free, and what was worse, the damm salesmen would not go away, but probably camped out on the school lawn like so many hyenas, improperly approaching children and giving them Great Minds-branded candy bars. With large sums of money at stake, commission salesmen are quite unscrupulous.
The local FexEx manager might have heard about the business, and put together a counter-proposal ("You do, um, realize that Great Minds is proposing to make a 2000% profit?"). He would have noted which items did not require stapling or collating, and could therefore be produced on small-office-grade photocopiers in the schools, on a daily basis, at an effective cost of maybe a penny a page, and he would have quoted a price for the things which did require collating and binding. Of course this got back to the Great Minds people, and it would explain the animus behind their lawsuit.
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"Noncommercial" in similar context [was Re: Re: Re: Facts Can Change In Response to Law]
GPLv2:(“[N]oncommercial” hilighted.)
GPLv3:(“[N]oncommercially” hilighted. Note also that GPLv3 utilizes the term “commercial” in the elided portion of section 6, as part of the definition of a “User Product”.)
As this comment takes up enough screen space already, I'm going to defer upon further remarks for awhile, in favor of just staring at the words and asking myself, “What does this actually mean?”
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Re: "Noncommercial" in similar context [was Re: Re: Re: Facts Can Change In Response to Law]
In 1989, the University of Oregon computer center acquired, for about a hundred dollars, a CD containing the complete contents of the PC-SIG shareware collection, about 1500 360-KByte floppy disks. I already owned a printed catalog of this collection, maybe 500 pages thick, which I had purchased for about twenty dollars, and used for ordering individual 360K disks by mail order. Well, on hearing that the CD-disk was available, I took the catalog into the Anthropology department student lounge, showed it around, and made like a traveling salesman, and solicited some orders. At the same time, I had made an appointment, about a week in advance, to use the CD in the computer center, on one of their personal computers, which was fitted with a CD drive, a rare and expensive accessory in those days. So, with orders in hand, I first bought a box of blank disks (with my own money, for which I was never reimbursed), and then, I went in to the computer center, copied over the desired disks, and carried them back to the Anthropology Department to hand them out. Sub-clause C simply reflects the "friction" inherent in this process.
Sub-clause C is not an elegant solution in principle, but it is an expedient one. It would be much better if the principal Linux distributions moved gradually to shipping more packages as source-code-only, and automatically running the compiler during the install process. The kind of package which goes on the fifth or sixth DVD disk of a distribution is not one which very many people will want to install, and the running time of the compiler is probably not very critical in those circumstances. It is a kind of law-of-diminishing-returns. A reasonable balance might have 4.7 GBytes (1 DVD) of packages in both source-code and binary, so that the user would not have to compile things like a word processor and a web browser. A distribution might come in seven DVD disks instead of six DVD disks, and that is an acceptable trade-off. That way, everyone using open-source software would actually acquire source code.
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Re: Re: "Noncommercial" in similar context [was Re: Re: Re: Facts Can Change In Response to Law]
I'm not sure where I'm going with this thought…
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Re: What is Fed-Ex charging for?
The revenue comes because they are useful.
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Re: Re: NC licenses are dangerous
the size of the production does not convert it from non-commercial to commercial. It is or isn't.
I see this a lot in CC discussions, the stance that they were licensing things for the little guy, not understanding that major corporations could also use their work.
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