Open Ed. Provider Appealing Decision in Closely Watched Lawsuit

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A federal judge has dismissed a curriculum provider’s claim that the office giant FedEx has improperly reaped profits from making copies of “open” educational resources at the behest of schools. But the court fight is not over yet.

The curriculum organization, Great Minds, is appealing the decision by Judge Denis H. Hurley, made early this year in the U.S. District Court for the Eastern District of New York.

The case is being scrutinized by many within the education community who use and want to promote the distribution of open educational resources, generally defined as materials created on licenses that allow them to be freely shared, modified, and distributed by educators and students.

Some backers of open resources fear that a legal decision against FedEx would imperil, or at least sow confusion about teachers’ and students’ access to the free, shareable materials.

Great Minds, a nonprofit based in Washington, D.C., sued FedEx  claiming the nationwide office and printing company should have compensated it for the money FedEx makes from requests from schools to copy materials that Great Minds has created on an open license. Great Minds had used a license created by the organization Creative Commons, known as a “CC BY-NC-SA 4.0,” which allows for the use of its 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.

But Hurley rejected Great Minds’ legal argument, saying the schools in question have the right to hire third parties–in this case, FedEx–to help them obtain the content they need, and that reproducing the materials is allowed, under conditions of the license.

“As school districts are the entities exercising the rights granted by the license, it is irrelevant that FedEx may have benefited by having been hired by them,” Hurley wrote in his ruling.

Great Minds is appealing Hurley’s decision to the U.S. Court of Appeals for the Second Circuit.  In a statement to Marketplace K-12, Great Minds President and Executive Director Lynne Munson said FedEx’s copying is paying dividends for the office company and undermining her organization’s work.

“A New York district court has decided that it is all right for FedEx, a $50 billion corporation, to violate our copyrights by commercially reproducing and distributing our materials for FedEx’s own profit without our permission and without paying Great Minds a royalty for the commercial use,” Munson said.

“We will continue to pursue our appeal and every possible avenue to protect Great Minds, the teachers who write our materials, and the public interest.”

Same License, Different Readings

FedEx has not yet responded to a request for comment. But Diane Peters, the general counsel for Creative Commons, said in an interview that the federal court “got it exactly right,” in its decision.

“There’s no reason the copies shouldn’t be made,” by FedEx under these circumstances, Peters said.  The law is clear on schools’ rights to get help using open materials, and Great Minds’ arguments are in conflict with how the Creative Commons’ license is supposed to work, she added.

(Peters also laid out her legal argument in a recent post on Creative Commons’ website.)

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

While Great Minds fashioned those resources and makes them available for free on the EngageNY site, it also publishes and sells book versions of the materials, and uses the money to support its operations, as it pointed out in its lawsuit. That money, it has said previously, is critical to allowing the organization to recoup some of its costs and improve and build upon its materials.

In her statement, Munson argued that FedEx’s behavior ultimately undermines her group’s operations and its ability to serve schools. She said the organization employs nearly 200 teachers, who write its materials.

“Creators of OER materials must have a sustainable business model if we are to keep doing what we do best,” she said, which is “crafting exemplar instructional materials that teachers deserve, that students need, and which fundamentally challenge the marketplace.”

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