Curriculum Provider Loses Court Fight With FedEx Over Copying ‘Open’ Materials

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A federal appeals court has ruled against a curriculum company in its battle to force FedEx to compensate it for copying reams of its academic resources for use by schools, in a closely watched case among supporters of “open” educational resources.

The nonprofit curriculum provider Great Minds creates and distributes open resources, or materials developed on licenses that allow them to be freely shared, repurposed, and remixed by schools.

But it had argued that the copying FedEx has done on behalf of schools went too far, and that the office-supply and delivery behemoth was improperly profiting from Great Minds’ labor.

The U.S. Court of Appeals for the Second Circuit disagreed, rejecting Great Minds’ argument in a March ruling and affirming an earlier decision of a federal court. Great Minds asked for a re-hearing, but was denied.

The New York appeals court ruled that the type of open license used by Great Minds doesn’t prevent schools from hiring third parties – in this case, FedEx – to make the copies they need for teachers and students. Its ruling also says that the holder of a copyright –Great Minds — must make it clear in its license that it would ban activities such as FedEx’s copying, if it wishes to do that.

The license “unambiguously permitted school districts to engage FedEx, for a fee, to reproduce the materials,” the court of appeals ruled. Great Minds has “failed to state a plausible claim of copyright infringement against FedEx.”

Some backers of open education resources worried that if Great Minds prevailed in the case, it would discourage the use of open educational resources by schools, who would fret about getting dragged into court battles if they wanted to copy classroom materials.

In an e-mail, Great Minds officials said their rationale for bringing the lawsuit against FedEx was sound.

FedEx has been collecting money that the curriculum organization could have used to improve products such as its Eureka Math curriculum, to the benefit of schools, argued the curriculum organization.

“We believe it is wrong for FedEx, a $50-billion corporation, to profit from the hard work of teachers around the country who write our materials,” said Great Minds spokesman Chad Colby.

“Anyone can download and print Eureka Math, an open resource, for free, including schools, parents, and students. The issue was whether FedEx has a right to profit off of our materials without compensating our teacher writers,” he said.

The decision “will not stop our disruption of the big textbook industry,” Colby added.

An attorney for FedEx declined comment on the case.

Office Depot Targeted, Too

While it has been set back by the New York ruling, Great Minds is engaged in a similar fight in a federal court in California. It filed suit last year against Office Depot, which it accuses of actively courting districts that are seeking to copy Great Minds’ Eureka Math curriculum.

Districts around the country have been adopting or experimenting with open educational resources for several years. Supporters of the resources see them as more customizable, modular materials than those that commercial publishers can provide.

While some publishers and for-profit companies today are seeking to weave open resources into their platforms, others argue that open materials fail to offer the full-scale, organized curriculum and instructional support that teachers and students need.

Great Minds produced its materials on an open license known as “CC BY-NC-SA 4.0,” which was developed by the organization Creative Commons, an author of open licenses. Great Minds’ license allows for others to use the open materials for noncommercial purposes, as long as they are attributed to the source.

Creative Commons sided with FedEx in the dispute, arguing that Great Minds was misinterpreting the rules surrounding the license.

In its ongoing lawsuit against Office Depot, filed in the U.S. District Court for the Central District of California, Great Minds says the copying by the office supply company is occurring on a “mass scale.”

Office Depot contends that Great Minds’ interpretation of the rules of the open license is off base, as it was in the New York case, which the company refers to in its court filing.

“Office Depot, like FedEx, is shielded by the Creative Commons public license between the school districts and Great Minds,” the company says in a motion to dismiss the case. It was “not required to independently seek permission from Great Minds to copy the Eureka Math materials.”

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