Creative Commons Community Celebrates Another Court Win Drew Wilson | January 14, 2020 The Creative Commons community is celebrating another legal win. The US court of appeals have confirmed the non-commercial element of the license. One of the big legal developments in the online world is the creation of Creative Commons. For some, Creative Commons is like a legal version of a patch on copyright law. Before, in order to copy something like a book, one would need to create a manufacturing system just to make that copy. For the most part, this is generally a commercial venture. So, in that regard, copyright law did make sense. I sell you a book, you can’t legally make copies of it and resell it for a profit. In order for copies to be sold, things like royalties need to be sent back to the original author. Of course, there was no way for copyright to anticipate the creation of the Internet. The idea of someone getting a free copy of something instantly just seemed like a ridiculous idea. Of course, with the Internet, such an idea is easily possible. As some people predicted, technology forced a rethinking of how copyright is interpreted. Unfortunately, not all those interpretations were for the better or ideal in a modern world. Obviously, major corporations not only didn’t want copyright laws to change to handle modern realities, corporations doubled down and lobbied for tightening of copyright laws. The unfortunate consequences is the fact that everyone is now under those new laws whether they like it or not. This includes creators who believe technology is something to be embraced instead of fought. This ultimately created a legal void in the system. In this vacuum, some standards came out. This includes the GNU General Public License (GPL). This would help allow free software to legally exist in the first place. While great for software, it more or less left out creative works such as creative writing, music, and more. So, an alternative came about with the Creative Commons license. The idea is that Creative Commons is a flexible license that puts the power of managing creators rights back into the creator. Do you want to allow others to share your content for free? That is possible with the license. Do you want people to do this strictly on a non-commercial basis? That’s also possible with this license. Do you want people to attribute you when re-using your work? Again, that is also possible in this license. While not everyone agrees with how the license is handled, it does offer an option for creators looking to better open their content to the modern world. Of course, Creative Commons did get some detractors. In 2010, ASCAP (American Society of Composers, Authors and Publishers) launched an attack on the license. They tried to push the narrative that “copyleft” is a movement backed by deep pockets in the technology sector to undermine “copyright”. Naturally, Creative Commons defended themselves when Eric Steuer spoke to me at the time. Steuer pointed out that Creative Commons is a copyright license, plain and simple. It’s not meant as an attack on copyright and that anyone suggesting this is making false claims. There have been plenty of legal challenges that faced Creative Commons as well. Ultimately, for most of the rulings, Creative Commons has come out on top as being both legal and enforceable. Now, it seems that Creative Commons is celebrating another legal win. In a recent post, they reacted to a recent legal ruling that enforces the interpretation of non-commercial. From their post: The U.S. Court of Appeals for the 9th Circuit reaffirmed Creative Commons’ interpretation of activities that are permissible under the NonCommercial (NC) licenses, which allow bona fide noncommercial reusers to hire out the making of copies of NC-licensed content, even to profit-making businesses such as Office Depot and FedEx Office. Below is an excerpt from the decision: “Under the License, a non-commercial licensee may hire a third-party contractor including those working for commercial gain, to help implement the License at the direction of the licensee and in furtherance of the licensee’s own licensed rights. The License extends to all employees of the schools and school districts and shelters Office Depot’s commercial copying of Eureka Math on their behalf.” This is the second time a federal appellate court in the United States has adopted CC’s interpretation of NC. The first decision was published by the U.S. Court of Appeals for the 2nd Circuit last year (summarized here) and involved copying by FedEx Office at the behest of school districts admittedly using the works for noncommercial purposes. CC’s position has been clear in both of these cases: so long as commercial actors are not acting independently for their own commercial gain but solely on behalf of noncommercial actors, they are protected by the license granted to the noncommercial actors. After all, entities must act through employees, contractors, and agents as a necessity. To require every teacher, employee (including part-time student employees), and third-party contractor making copies of NC licensed works to forego payment for their services would make it impossible for those types of licensees to use the works and facilitate sharing for noncommercial purposes. Creative Commons went on to say that this is a huge legal victory for everyone including teachers, schools, and students. It is, indeed, true, that companies like FedEx and Office Depot are profit making entities. That is not in question here. What is in question is whether a non-commercial entity can use their services to spread Creative Commons works for non-commercial purposes. These licenses are clear that when the end result is non-commercial and a profit is only made in commission for the non-commercial purpose, then the Creative Commons license is not being violated. It’s similar to the idea that I make a music album, post it online for free under a non-commercial Creative Commons license, and find out that someone paid money to make physical copies to distribute for free on the street, then the license is not violated. Yes, that third party company may have made money on the act of producing those copies, but that non-commercial third party paid for that and no one else. Ultimately, this is a very sensible ruling. What’s more is that the courts are once again re-affirming what Creative Commons is all about. It also further bolsters the legal credibility of the license in the first place which is a very nice bonus for the community. Drew Wilson on Twitter: @icecube85 and Facebook.