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Sep 22 / Clayton Hayes

Creative Commons Seeks to Weigh In on “NonCommercial” License Lawsuit

A recently-filed lawsuit may be forcing the re-evaluation of “NonCommercial” Creative Commons licenses, an aspect of the licensing system that has long been viewed as comparatively nebulous. For those unfamiliar, Creative Commons (CC) is a nonprofit organization that has, for over a decade, sought to make the often-complex world of licensing copyrighted materials a bit simpler. They have a series of pre-packaged licenses that provide copyright holders with an easy way to let others know how they are allowing their work to be used. Copyright holders may elect to release their work (for example) under a CC BY 4.0 license, meaning that anyone can use the work for any purpose so long as the original copyright holder is given appropriate credit and any changes from the original work are noted (the BY portion of the license). They may instead use a CC BY-NC-ND 4.0 license, meaning their work can be redistributed by anyone so long as appropriate credit is given (BY), but the material can’t be remixed, transformed, or changed (NoDerivatives, or ND), and the work cannot be used for commercial purposes (NonCommercial, or NC).

It is this last concept, “NonCommercial,” that is currently the subject of the aforementioned lawsuit. Those familiar with CC licensing have long been aware that the terminology used by CC when defining its NC licenses has been a bit vague. This was, to some extent, by design; CC’s guide to interpreting NC licenses states that their definition of a commercial use “is intent-based and intentionally flexible in recognition of the many possible factual situations and business models that may exist now or develop later.” Though there is usually no question as to whether a use is commercial or not (e.g. the use of a photograph as cover art for a popular novel is clearly commercial, while the use of a photo by a student in an essay for a class clearly is not), there are some cases when the answer is not so clear.

The educational nonprofit Great Minds feels that it has one such case. In a lawsuit filed by Great Minds in March of 2016, they argue that FedEx violated their intellectual property rights by reproducing materials released under a NonCommercial CC license. FedEx, they argue, is a commercial entity and is profiting off of the reproduction of Great Minds’ materials, hence violating the terms of the CC license. Great Minds caught wind that FedEx was making copies of their materials around October of 2015 in Michigan and contacted FedEx to negotiate a licensing agreement whereby FedEx would pay a fee to Great Minds. FedEx refused, arguing that the use was noncommercial because the reproductions had been made for nearby school districts who were not using the materials for profit.

In plain terms, Great Minds feels that FedEx should have to pay a fee each time one of their materials is copied. A decision in their favor would be a pretty significant blow for the CC licensing system, especially those falling under the NC licenses. It could open the door to a host of other unpleasant claims. Aren’t internet service providers profiting in some way every time a video released under a NC license is viewed online? Isn’t your email service netting some profit when you use their service to send an NC-licensed document to a colleague?

To be fair, CC has sought to ensure that their NC license does not break down in scenarios like those I’ve described above. The specific language of the NC license states that “NonCommercial means not primarily intended for or directed towards commercial advantage or monetary compensation.” and the guide linked to above points out that their use of the word “primary” in that definition is important. “The inclusion of ‘primarily’ in the definition recognizes that no activity is completely disconnected from commercial activity; it is only the primary purpose of the reuse that needs to be considered” (emphasis mine).

It is fairly obvious that, in both of the scenarios described above, the primary use is not a commercial one. That’s why the Great Minds lawsuit seems so backwards; the primary reason for copying their materials is to distribute these materials to students, a noncommercial use. The CC’s fuzzy language on what exactly constitutes a commercial use may have left the door open to this interpretation, though. It certainly seems now that the district court’s ruling on this matter, should the parties be unable to settle, will make the definition a bit sharper.

CC has recognized how important this ruling is for the future of its NC licenses and has asked to file an amicus brief which supports FedEx’s motion to dismiss the lawsuit. They go so far as to say that Great Minds’ interpretation “is emphatically not how Creative Commons NonCommercial licenses were designed to work,” and hope to have the opportunity to argue why that interpretation is incorrect. It is also clear from the language of the request that CC knows the fate of its NC licenses hang in the balance:

The point of Creative Commons licenses is to be useful tools that facilitate creative, socially constructive activity. […] The artificial distinction drawn by Great Minds […] 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.
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.