Preserving OERs for the Future
by Corilee Christou
Just as open educational resources (OERs) are gaining traction among K–12 educators, a lawsuit filed by OER curricula provider Great Minds threatens to stall the growth. School districts are struggling to determine the impact that this lawsuit will have on their use of OER materials.
What is Great Minds? Per its website’s About page, it is a nonprofit that was founded in 2007 by a group of education leaders “to define and encourage content-rich comprehensive education for all American schoolchildren. In pursuit of that mission, Great Minds brings schoolteachers together in collaboration with scholars to craft exemplary instructional materials and share them with the field.”
Great Minds v. FedEx Office and Print Services, Inc.
On March 24, 2016, Great Minds filed suit against FedEx Office in the U.S. District Court for the Eastern District of New York requesting, among other things, that FedEx Office reimburse Great Minds for its profits and income earned for photocopying Great Minds’ materials. The materials at issue are made available for free to the public (including school districts) under an open license for noncommercial use. Great Minds uses a Creative Commons (CC) Attribution-NonCommercial-ShareAlike 4.0 International license, known as BY-NC-SA (creativecommons.org/licenses/by-nc-sa/4.0/legalcode), to do so. Great Minds argues that FedEx Office is committing copyright infringement because it profits off of the copying of these materials in violation of BY-NC-SA and should have negotiated a royalty arrangement with Great Minds, which FedEx Office refuses to do. Great Minds says it uses the proceeds from copyright agreements to improve its products and services.
On Aug. 30, Creative Commons requested permission to file an amicus brief. Its general counsel, Diane Peters, says that “since the core of the litigation depends on the proper interpretation of the CC Attribution-NonCommercial-ShareAlike 4.0 license … and while we rarely file amicus briefs, we feel strongly that the correct interpretation of the legal code here is essential to the utility of the NC licenses for both licensors and licensees, including those using any of the more than 370 million works that are licensed under one of CC’s NC licenses.”
A motion to dismiss was filed on Aug. 24 by FedEx Office, which stated, “This case results from Plaintiff Great Minds’ effort to stretch the Copyright Act and misapply the license it grants for free to anyone who asks. The Complaint rests upon the mistaken premise that the school districts that Great Minds explicitly licenses to reproduce its materials for educational use may not enlist FedEx Office to make those reproductions on their behalf. This tortured logic should be rejected. The law is clear that a licensee may enlist others to help it perform licensed activities. FedEx Office is doing just that. There is therefore no infringement and this case must be dismissed” (docplayer.net/25902369-Case-2-16-cv-drh-arl-document-15-1-filed-08-24-16-page-1-of-11-pageid-110-ecf-case.html).
A Holding Pattern
As of January 2017, the court had not yet responded to either Creative Commons’ motion requesting permission to file an amicus brief or to the motion filed by FedEx Office for dismissal of the case. Essentially, FedEx Office was simply reproducing Great Minds’ materials, which were to be used for noncommercial purposes by the school district that had licensed them. The district may not have had the machinery or the means to replicate the materials directly, but the noncommercial use of these materials—which is what was actually permitted under the BY-NC-SA license—did not change. In fact, the result would have been the same if a district employee had done the actual copying by using and paying for the use of FedEx Office’s machines and paper. Peters reinforces this use:
Under the facts of this case as pleaded and as we understand them, the defendant has not violated the noncommercial clause. Here, the school district’s use is clearly admitted to be noncommercial by the plaintiff. The plaintiff is unhappy that a school district resorted to a third party to act on its behalf and exercise the rights granted by the license. But that should make no difference. This is not a case where FedEx Office undertook on its own accord the copying and marketing of the texts to school districts. Under these facts, whether a school district employee presses print or FedEx Office presses print at the request and direction of a school district for the school district’s own [noncommercial] purposes only should make no difference to the analysis.
School districts are struggling with budget cutbacks, and OERs provide a low-cost alternative to traditional teaching tools. In an Oct. 5, 2016, Campus Technology article, Richard Chang defines OERs as “free materials licensed through agreements that allow them to be reproduced, shared and modified—or resources that are in the ‘public domain,’ meaning they’re not subject to copyright” (campus technology.com/articles/2016/10/05/curricula-provider-great-minds-suing-fedex-over-oer.aspx).
What Happens to OERs?
Needless to say, the Great Minds lawsuit has fostered a sense of anxiety and uncertainty among school districts in their use of OER materials, as Barbara Soots, the OER program manager for the Office of the Superintendent of Public Instruction in Washington, says in an interview with Education Week. Soots’ agency has supported the use of OERs, and she informally surveyed some Washington school leaders for their views of the dispute. The article says, “One of the biggest worries is that districts would become tangled in a web of legal questions about their rights—or the rights of a company they hire—to produce the classroom materials teachers and students need right away, [Soots] said. It could end up ‘placing the responsibility on the educator, or the district, and that’s not really a good use of their time,’ Soots said. And it could impede ‘one of the stated benefits of open educational resources,’ she added, which is their easy accessibility and versatility.”
Not only does the lawsuit put K–12 OER adoption at risk, it also undermines the utility of the Creative Commons license used by Great Minds and many other entities worldwide. At the core of Great Minds’ argument is what actually constitutes noncommercial use. Granted, FedEx Office was benefiting financially from the revenue earned by making copies of the materials, but it was not benefiting from the use of the materials—which is what was in fact licensed by Great Minds to the school district.
The lawsuit also jeopardizes all other entities that are licensing materials by using Creative Commons noncommercial licenses, potentially putting them at risk should they also rely on third-party resources for copying. In addition, it makes the entire OER movement vulnerable to similar lawsuits. According to Peters, “Authors of OER, large and small, use these four CC licenses (and occasionally CC0): BY, BY SA, BY NC, BY NC SA. CC always encourages at a minimum that the ND licenses not be used when licensing OER. This is because the ND restriction precludes translation and other localization.”
It would seem that this is a pretty frivolous lawsuit, considering that the original licensing entity is not violating the terms of the agreement and misusing the materials, but instead is only using them for a noncommercial purpose. Hopefully, the court will view the litigation similarly and decide in favor of FedEx Office. Otherwise, the future of K–12 OER adoption and the Creative Commons NC licenses may be problematic at best, which would be a real shame considering the needs they both meet in education today. Disrupting Creative Commons’ efforts at this point would be disastrous. It is unclear when the court will address this case, so stay tuned for future developments.