Recent Appellate Decisions Clarify the “NonCommercial” Requirement of the Creative Commons ShareAlike License

CC-SAAnyone who has spent time scouring the internet for free-to-use content has likely come across pictures, written materials and music permissively licensed under one or more of the Creative Commons licenses. These licenses tend to offer the public a broad range of options when using copyrighted material that is released under the Creative Commons scheme. However, like all licenses, the Creative Commons licenses can contain conditions and requirements that the licensee must adhere to in order to avoid liability. Two recent appellate court decisions shed light on one important condition in the Creative Commons NonCommercial ShareAlike license.

First, some background: Creative Commons is a nonprofit that has developed and published a set of license and public domain tools that help copyright owners grant copyright permissions to content creators. Creative Commons offers a range of license options for creators to choose from, one of which is the ShareAlike license, a nonexclusive public license that binds copies of content to the same license as the original. Under the ShareAlike scheme, licensees are free to copy, redistribute, change and add to the content so long as the subsequent work receives the same protections as the original. Copyright owners can also choose to use a version of the license that requires the licensee to provide attribution back to the owner.

Another stipulation that copyright owners employing the ShareAlike license can select is a requirement that copying and redistribution must be done without commercial gain. Until recently, there was an open question of what happens when licensees engage with commercial entities to enable or facilitate the licensee’s use under the “NonCommercial” version of the license. Disputes eventually arose when licensees outsourced reproduction of the licensed content to commercial entities that profit by reproducing the work. The resulting ambiguity had the potential of stifling the permissive licensing of content that the ShareAlike license was created to foster.

In one such dispute, copyright owner Great Minds alleged copyright infringement in 2018 after FedEx reproduced their “Eureka Math” program, which was protected by the ShareAlike license. FedEx did so at the request of a school district licensee in furtherance of the school district’s admittedly noncommercial use. On appeal, the 2nd Circuit Court wrote, “in view of the absence of any clear license language to the contrary, licensees may use third-party agents such as commercial reproduction services in furtherance of their own permitted noncommercial uses.” Any limitations on content reproduction must be explicitly stated in the license, and in this case, no such limitations were inferred.

More recently, Great Minds alleged copyright infringement against another defendant, Office Depot, that similarly copied Great Minds’s Eureka Math materials for a profit on behalf of school district licensees. The 9th Circuit Court upheld a lower court’s dismissal of the case, writing, “[a] licensee’s hiring of a third-party copy service to reproduce licensed material strictly for the licensee’s own permitted use does not turn that third party into a licensee that is bound to the License terms.” Distribution to a commercial agent for reproduction on behalf of a noncommercial licensee does not bind the commercial agent to the License terms. Great Minds petitioned for rehearing but was denied in February 2020, finalizing the decision.

Both decisions affirmed Creative Commons’ own interpretation of the meaning of noncommercial use under its licenses, and now clear the way for noncommercial users to outsource copying to third-party commercial entities who benefit from the engagement. These cases explicitly benefit schools and students by increasing utility of noncommercially licensed content like Eureka Math, but the decisions also extend to other content users. ShareAlike licenses are often found in connection with user content on popular platforms like Wikipedia, YouTube and Vimeo. By removing ambiguity about how much help licensees can get from commercial entities as they exercise their license rights, these recent decisions represent an important step forward in further establishing the Creative Commons licensing scheme as a part of the information economy.


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