Copyright Team Secures Pro Bono Victory for Creative Commons at the Ninth Circuit

Appellate win ensures consistent copyright interpretation and continued access to “non-commercial” works.

December 30, 2019

On December 27, a Latham copyright team achieved a major pro bono victory in the Ninth Circuit on behalf of Creative Commons, a unique organization in the copyright world. Creative Commons was founded in the early 2000s by a collection of prominent intellectual property scholars to solve a problem caused by the intersection of copyright law and the internet: while copyright’s default setting is “all rights reserved,” many people who produce creative materials would prefer that their works be freely usable by others, at least for certain purposes. To address that mismatch, Creative Commons drafted and maintains a suite of free-to-use, off-the-shelf copyright licenses that authors can deploy to signal to the world that anyone is legally free to use their works in a variety of respects, so long as certain conditions are satisfied. These licenses have achieved viral popularity, and now govern nearly a billion and a half copyrighted works around the world. Recognizing the utility of restricting a copyright owner’s ability to interfere with socially constructive reuses, many state and federal funding agencies have started requiring that if grantees take money to produce copyrightable material, they must release it under the terms of a Creative Commons license.

Great Minds is a publisher of K-12 curricular materials which took a grant from a state funding agency to produce an elementary school math curriculum, which came with an obligation to publish the resulting lesson plans under a Creative Commons license. Great Minds chose the most restrictive one available, which allows copying and other uses only for “non-commercial” purposes. It then pursued a number of litigations, suing copy shops like FedEx Office and Office Depot for acting as a service provider to school districts who needed to make copies of the curricular materials for their students. Great Mind’s position was that the school district’s own use may be “non-commercial,” but their vendor’s is not, so the copy shops are liable for massive copyright infringement damages.

Creative Commons recognized that Great Minds’ litigation position threatened to severely undermine the utility of its “non-commercial” licenses—which themselves govern more than 300 million existing copyrighted works—and turned to Latham for help. Over a series of several cases, the Latham team submitted amicus briefs explaining why it is critically important for Creative Commons licensees to be able to use commercial vendors to discharge their licensed “non-commercial” rights, and why Great Minds’ contrary suggestion was incorrect as a matter of law. Backed by the author and steward of the licenses at issue, the copy shops have been winning these cases across the board.

The final part of the litigation was an appeal to the Ninth Circuit by Great Minds from an order dismissing an infringement complaint against Office Depot. In that appeal, Great Minds was represented by leading copyright scholar Chris Sprigman, a professor at New York University. Office Depot, the appellee, ceded a portion of its argument time to Creative Commons, which had the Latham team present its case to the panel in November.

On December 27, the Ninth Circuit rejected Great Minds’ arguments, squarely embracing Creative Commons’ proffered interpretation of the license at issue, and explaining that Great Minds’ position, if accepted, would severely undermine the license’s purpose and utility. The panel affirmed the propriety of the district court’s dismissal without leave to amend—a complete and total victory for Latham’s pro client, ensuring that hundreds of millions of copyrighted works around the world will not be encumbered by undue reuse restrictions.

The Latham team was led by San Francisco partner Andy Gass, who argued the appeal, and associates Libby Yandell, Kris Hanson, and Ivana Dukanovic.

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