Closely Watched Lawsuit Has Implications for Open Ed. Resources Market

Senior Editor

A lawsuit focused on licensing, royalties, and photo-copying has potentially big implications for the use of “open” educational resources in schools.

The curriculum and content provider Great Minds is suing FedEx in federal court in New York, saying the nationwide office and printing company needs to compensate the education organization for the money FedEx makes from requests from schools to copy materials that Great Minds has created on an open license.

Open educational resources are typically defined as free materials created on licenses that allows materials to be reproduced, shared, and modified as users see fit—or resources that are in the “public domain,” meaning not subject to copyright.

Great Minds, a nonprofit based in Washington, D.C., offers academic content across a variety of subjects. It has offered a math curriculum, Eureka Math, on an open license created by Creative Commons, an author of those agreements.

While some teachers and schools using Great Minds’ Eureka Math product are printing out and copying resources on their own, others have taken those resources to FedEx stores. As a result, Great Minds says, FedEx is profiting through a “commercial use” of  the open resources without proper permission. Great Minds demands that FedEx stop doing that work, or pay a royalty.

In its lawsuit, Great Minds says it “would not make the materials or its other curricula materials available to the public for free, noncommercial use if in doing so it gave up its right to charge a royalty for commercial reproduction.”

The money Great Minds collects from agreements with other companies that copy its open materials support the organization’s “continual improvement of its existing curriculum and development of new curriculum,” it says in the lawsuit, filed in the U.S. District Court for the Eastern District of New York.

Creative Commons has itself weighed in on the court fight in opposition to Great Minds’ argument, asking the judge overseeing the case for permission to file a brief backing FedEx’s position.

If the court were to accept Great Minds’ reasoning in the case, it would be “profoundly damaging” to the use of open educational resources in schools, and by the public at large, Creative Commons has told the judge.

Creative Commons licenses have been used for more than 1.1 billion works, the organization told the court, and 14 percent of those works are governed by the specific type of license at the heart of this case. The Creative Commons license used by Great Minds is known as a “CC BY-NC-SA 4.0,” which allows for the use of the materials for noncommercial purposes, as long as they are attributed to the source, and redistributed or modified under the same licensing terms as the original works.

If the court agreed with Great Minds, “it would disrupt the settled expectations of innumerable users and creators of works governed by CC BY-NC-SA 4.0 licenses around the globe,” Creative Commons says. “And it would substantially diminish the utility of a license that enables the sharing of knowledge and creativity to build a more equitable, accessible, and innovative world.”

Great Minds has been one of the organizations contributing academic resources to EngageNY, a popular online site launched by the state of New York that offers open materials and has become a go-to resource for millions of educators around the country.

While Great Minds created those resources and offers them for free on the site, it also publishes and sells book versions of the materials, and uses the money to support its operations, its lawsuit points out. That money, it says, is critical to allowing the organization to recoup some of its costs and improve and build upon its materials.

(When New York state officials were planning the launch of EngageNY, they allowed vendors, as an enticement to participate, to commercialize or make money off portions of the free, open content they provided to the site–as long as the core materials released through the platform were free and open.)

Some backers of open education material say the strategy of allowing vendors to make some money off their production of open resources is essential to creating a sustainable market for those resources–as opposed to forcing them to rely on outside sources for support, such as philanthropies.

Hired Help for Schools

Great Minds officials argue in court documents that they have established royalty agreements with other third parties–presumably including other copying companies–for “commercial reproduction” of its open materials. FedEx should be held to the same standard, the lawsuit says.

Requiring FedEx to pay royalties not only benefits the organization, but also the public by “providing Great Minds with additional financial resources to develop new curricula,” the lawsuit claims, “which in turn can be made available nationwide for free, noncommercial use, and otherwise to further its educational mission.”

FedEx officials also would not comment on the case, citing the ongoing litigation. But in a legal document submitted to the court, the company says that nothing in the open license used by Great Minds prevents schools from delegating private copying services to private businesses like FedEx, and paying for their services.

The open license simply says that the use of the materials must be noncommercial, and the ultimate users are school districts–not FedEx–the printing and office supplier contends.

Creative Commons officials make a similar case, saying that an open license would have little value to schools if they if they couldn’t hire a third-party company–such as a parcel service, or an Internet service provider hosting online works–in the course of doing what it takes to bring open materials teachers and students. “[T]he results would be absurd,” Creative Commons told the court.

A school, as an entity “that uses the work, they get to hire people, and they don’t need separate permissions from Great Minds to get help and assistance”  for non-commercial purposes, said Diane Peters, the general counsel for Creative Commons, in an interview.

Great Minds might have other agreements with commercial printers, but they “have nothing to do with the rights that school districts have under the terms of the license that Great Minds has applied,” she added.

Rhett Millsaps II, a lawyer representing Great Minds, rejected the claim that the organization’s legal argument would prevent K-12 districts from hiring third-party companies to help them make use of open educational resources. But language of the Creative Commons agreement in question clearly restricts FedEx from reproducing Great Minds’ work without compensation, he said.

“That license has very specific language,” Millsaps said, one that makes a “clear demarcation between commercial and non-commercial uses.”

Fed Ex is “exceeding the scope of the license” and profiting from it, he added. Great Minds’ reading of the license is a “common-sense interpretation.”

We’ve been writing a lot about school districts’ interest in open educational resources, and the challenges they face in making them fit for their instructional needs. Check back on Marketplace K-12 for updates on Great Minds’ lawsuit and what it means for the use of open materials around the country.

UPDATE: This post has been updated with comments from Rhett Millsaps, a lawyer representing Great Minds.


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2 thoughts on “Closely Watched Lawsuit Has Implications for Open Ed. Resources Market

  1. Let’s say that instead of FedEx, the districts and schools copy the materials on high-volume photocopiers that are leased from (say) Xerox. The copiers are located on school premises and the copies are made by school staff. The terms of the lease from Xerox include paper and toner and schools are charged a fixed price per page (e.g., $0.02 for BW and $0.08 for Color). How is Xerox’s lease-based revenue any different from FedEx’s? Is GreatMinds asserting that it should be able to extract royalty from Xerox just like they’re claiming against FedEx? I certainly feel for Great Minds – but it’s only proving the fact that the value is in the content, not the paper. When your revenue depends on binding paper and shipping it, you’re basically screwed. Find another revenue stream (formative online assessment with analytics?).

  2. Let’s say that instead of FedEx, the districts and schools copy the materials on high-volume photocopiers that are leased from (say) Xerox. The copiers are located on school premises and the copies are made by school staff. The terms of the lease from Xerox include paper and toner and schools are charged a fixed price per page (e.g., $0.02 for BW and $0.08 for Color). How is Xerox’s lease-based revenue any different from FedEx’s? Is GreatMinds asserting that it should be able to extract royalty from Xerox just like they’re claiming against FedEx? I certainly feel for Great Minds – but it’s only proving the fact that the value is in the content, not the paper. When one’s revenue depends on binding paper and shipping it, you’re basically screwed. They need to find another revenue stream (formative online assessment with analytics?) It was their choice to value the non-commercial use of the content at $0, after all.

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