{"id":2243,"date":"2018-06-27T10:23:22","date_gmt":"2018-06-27T10:23:22","guid":{"rendered":"http:\/\/www.dekuzu.com\/en\/?p=2243"},"modified":"2018-06-27T10:23:22","modified_gmt":"2018-06-27T10:23:22","slug":"commercial-purpose-of-intermediary-does-not-violate-creative-commons-licence-when-it-is-executed","status":"publish","type":"post","link":"https:\/\/www.dekuzu.com\/en\/2018\/06\/commercial-purpose-of-intermediary-does-not-violate-creative-commons-licence-when-it-is-executed.html","title":{"rendered":"Commercial purpose of intermediary does not violate Creative Commons licence when it is executed"},"content":{"rendered":"

Great Minds is a non\u2010profit organization that designs educational materials. These include a copyrighted curriculum called \u201cEureka Math\u201d (the \u201cMaterials\u201d). Great Minds sells the Materials in book form and also releases them to the public without charge but subject to a \u201cpublic license\u201d (the \u201cLicense\u201d), using a template that is made available by a group called Creative Commons.\u00a0<\/span>The License allows \u201cany member of the public to download, reproduce, and distribute the Materials pursuant to the terms of the License, which is made available to all on the same terms without the need to negotiate.\u201d<\/span><\/p>\n

<\/p>\n

The License provides that \u201cevery recipient of the Materials automatically receives an offer from the Licensor to exercise the Licensed Rights under the terms and conditions of this License,\u201d and grants each \u201cindividual or entity exercising the Licensed Rights\u201d what it describes as a \u201cworldwide, royalty\u2010free, non\u2010sublicensable, non\u2010exclusive, irrevocable license to . . . reproduce and Share the Materials, in whole or in part, for NonCommercial purposes only.\u201d It defines \u201cNonCommercial purposes\u201d to mean purposes \u201cnot primarily intended for or directed towards commercial advantage or monetary compensation.\u201d<\/span><\/p>\n

In the complaint, Great Minds characterizes these provisions as amounting to an \u201cexplicit limitation of the License to noncommercial use requiring that commercial print shops\u2026 negotiate a license and pay a royalty to Great Minds if they wish to reproduce the Materials\u2026 at the request of their paying customers.\u201d<\/span><\/p>\n

In late 2015 and early 2016, Great Minds discovered<\/a> that FedEx stores in Michigan and New York reproduced the Materials, without Great Minds\u2019 authorization, in the course of their ordinary, for\u2010profit business. After each such discovery, Great Minds sent a letter to FedEx demanding that FedEx either negotiate a royalty\u2010bearing license with it or cease commercial reproduction of the Materials. FedEx refused, arguing that it had permissibly reproduced the Materials at the request of school districts, which sought to use the Materials for noncommercial purposes under the License.<\/span><\/p>\n

Great Minds filed the instant lawsuit<\/a> in March 2016, asserting a single claim of copyright infringement against FedEx. The District Court dismissed the action under Rule 12(b)(6), concluding that the unambiguous terms of the License permit FedEx to provide for\u2010profit copying services on behalf of a school district exercising noncommercial use rights under the License. Great Minds appealed.<\/span><\/p>\n

FedEx conceded that its copying services are commercial in nature, and that its reproduction of the Materials would therefore be impermissible under the License if FedEx were acting as a direct licensee. Great Minds, in turn, has not alleged that the school districts\u2019 use of the Materials exceeded the scope of the License. At the appeal there was only one main question to be answered \u2013 whether the License permits school districts to use FedEx\u2019s services in furtherance of their own noncommercial use of the Materials under the License.<\/span><\/p>\n

The court held that, under long\u2010established principles of agency law, a licensee under a nonexclusive copyright license may use third\u2010party assistance in exercising its license rights unless the license expressly provides otherwise.<\/span><\/p>\n

The License authorizes licensees to \u201creproduce and Share\u201d the Materials for noncommercial purposes. FedEx argues that, because the License defines \u201cShare\u201d to mean \u201cproviding material to the public by any means or process\u201d \u2013 including \u201creproduction\u201d \u2013 FedEx\u2019s provision of commercial copying services falls within the licensee school districts\u2019 right to \u201creproduce and Share\u201d the Materials. This argument plucks out of context the operative License language, however.<\/span><\/p>\n

The License specifies more fully that Great Minds\u2019 licensees may \u201cShare\u201d by \u201cproviding material to the public by any means or process that requires permission under the Licensed Rights\u201d. \u201cLicensed Rights,\u201d in turn, are \u201climited to all Copyright and Similar Rights\u2026 that the Licensor has authority to license.\u201d Thus, the term \u201cShare\u201d encompasses the various types of reproduction and dissemination activities that require permission from the copyright holder; it does not expressly describe a right to enlist the services of third parties in performing those activities.<\/span><\/p>\n

Great Minds agrees that, under the License, school districts may themselves \u201creproduce and Share\u201d the Materials. It maintains, however, that the school districts\u2019 authority to use commercial reproduction services for the same purpose is limited by the License\u2019s \u201cdownstream recipients\u201d provision. Under that provision, \u201cevery recipient of the Materials automatically receives an offer\u2026 to exercise the Licensed Rights under the terms and conditions of this License.\u201d In Great Minds\u2019 view, FedEx was a \u201crecipient\u201d of the Materials that received an \u201coffer\u201d to exercise the Licensed Rights. It therefore acted as a licensee in its own right when it reproduced the Materials for profit, which violated the terms of the License and thereby made FedEx liable for copyright infringement.<\/span><\/p>\n

Great Minds fails to account for the mundane ubiquity of lawful agency relationships, in which \u201cone person, to one degree or another\u2026, acts as a representative of or otherwise acts on behalf of another person.\u201d The concept of an agency relationship is a sine qua non in the world of entities like corporations and public school districts, which have no concrete existence. If a school district decides to incorporate Great Minds\u2019 Materials into the standard curriculum, the teachers and administrative staff who receive, reproduce, and disseminate the Materials do so within the scope of their employment, as agents for the school district. They act as extensions of the school district, and therefore act pursuant to the school district\u2019s license rights.<\/span><\/p>\n

Under Great Minds\u2019 reading of the License, each teacher and administrator who handles the Materials is a \u201cdownstream recipient\u201d who acts as an independent licensee, even if their use of the Materials is compelled by the terms of their employment. If a license were intended to achieve such a radical result, the court would expect a clear statement in the license to that effect. Great Minds\u2019 public license contains no such statement. The court concluded, therefore, that the \u201cdownstream recipients\u201d provision cannot reasonably be read to apply within the scope of employment relationships.<\/span><\/p>\n

By the same token, the court concluded that Great Minds\u2019 licensees may rely on nonemployee agents in carrying out permitted uses without converting those agents into independent licensees. The License text provides no basis for distinguishing between a school that directs its employees to make copies on the school\u2019s machines and a school that achieves an identical result by enlisting a temporary independent contractor \u2013 or a commercial duplication service.<\/span><\/p>\n

Great Minds could, if it wished, draft a public license that specified whether, and under what circumstances, a licensee may rely on employees or non\u2010employee agents in reproducing or otherwise engaging with the Materials. But Great Minds included no such specification in the license at issue.<\/span><\/p>\n

In sum, Great Minds\u2019 non\u2010exclusive public license does not expressly preclude licensee school districts from engaging third parties, including commercial third parties, in furtherance of their rights under the License. Absent any such limitation, licensees may rely on services provided by third\u2010party agents when exercising their license rights. The court concluded<\/a> that the License unambiguously permitted school districts to engage FedEx, for a fee, to reproduce the Materials. Great Minds has therefore failed to state a plausible claim of copyright infringement against FedEx.<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

Great Minds is a non\u2010profit organization that designs educational materials. These include a copyrighted curriculum called \u201cEureka Math\u201d (the \u201cMaterials\u201d). Great Minds sells the Materials in book form and also releases them to the public without charge but subject to<\/p>\n

Continue readingCommercial purpose of intermediary does not violate Creative Commons licence when it is executed<\/span><\/a><\/div>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[5,6,39,17],"tags":[],"class_list":["post-2243","post","type-post","status-publish","format-standard","hentry","category-copyright","category-intellectual-property","category-interpretation","category-litigation","entry"],"_links":{"self":[{"href":"https:\/\/www.dekuzu.com\/en\/wp-json\/wp\/v2\/posts\/2243","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.dekuzu.com\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.dekuzu.com\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.dekuzu.com\/en\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.dekuzu.com\/en\/wp-json\/wp\/v2\/comments?post=2243"}],"version-history":[{"count":0,"href":"https:\/\/www.dekuzu.com\/en\/wp-json\/wp\/v2\/posts\/2243\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.dekuzu.com\/en\/wp-json\/wp\/v2\/media?parent=2243"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.dekuzu.com\/en\/wp-json\/wp\/v2\/categories?post=2243"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.dekuzu.com\/en\/wp-json\/wp\/v2\/tags?post=2243"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}