Page:Creative Commons for Educators and Librarians.pdf/87

- 74 - CHAPTER 4 In 2017–18 there were three legal cases that involved CC licenses: Great Minds vs. FedEx Office, Great Minds vs. Office Depot, and Philpot vs. Media Research Center. The outcomes of the court decisions for these three cases favored the enforceability of CC licenses and their role in enabling the sharing of content with the public.

Great Minds vs. FedEx Office and Great Minds vs. Office Depot

Two of the three cases were raised by Great Minds, a curriculum developer. In these two cases, Great Minds received public funding from New York State to develop OER (open educational resources) for school districts, which the organization licensed under CC BY-NC-SA 4.0. Great Minds brought the court cases against commercial copy shops that were hired by school districts to reproduce NC-licensed OER. The OER were for school use, which qualified as a noncommercial purpose.

Great Minds made a common assertion in both cases: school districts are not allowed to outsource the reproduction of educational materials licensed under CC BY-NC-SA 4.0 to contractors (the contractors were the commercial print shops in these cases) that make a profit on those reproductions. Great Minds’ theory was that it was lawful for a school district employee to go to a copy shop and pay to use their copiers; however, if the same school employee paid the copy shop to hit “PRINT” instead, the copy shop is no longer working on behalf of, or under the direction of the school district—but is instead acting independently; therefore, the copy shop has to directly rely on its own NC license to make and charge a fee for the very same copies.

Because they had applied a noncommercial license to their OER, Great Minds claimed that the school districts working with the OER were not allowed to engage FedEx or Office Depot to reproduce the materials, and that because the copy shops had made a profit, they had violated the license. Importantly, Great Minds never alleged that the school districts’ use of the reproduced materials violated the noncommercial restriction of the license.

The central question in both cases was whether a licensee (a school district that is properly using the work for noncommercial purposes) may outsource the reproduction of the works to another entity that makes a profit on those reproductions, without the entity it pays becoming a copyright infringer under the NC license.