Fedex Targeted in Open Educational Resources Lawsuit

By Sean Cavanagh — October 04, 2016 5 min read
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A lawsuit focused on academic-content licensing, royalties, and photocopying has potentially big implications for the use of open educational resources in schools.

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

Open educational resources are typically defined as free materials licensed through agreements that allow them to be reproduced, shared, and modified—or resources that are in the “public domain,” meaning not subject to copyright.

Great Minds, a nonprofit, 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 the Great Minds’ Eureka Math product are copying resources on their own, others have taken those resources to FedEx stores. As a result, FedEx is profiting through a “commercial use” of the open resources without proper permission, argues Great Minds, which demands that FedEx stop doing that work—or pay a royalty.

Word of the lawsuit is spreading among K-12 officials, even if the implications are likely to vary greatly by district, said Barbara Soots, the open educational resources program manager for the Office of the Superintendent of Public Instruction in Washington state.

Soots, whose agency has supported the use of open resources, informally surveyed some Washington school officials for their views of the legal dispute, and said there was some anxiety, and much confusion.

New Burdens for K-12?

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, she 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.

In its lawsuit, Great Minds says it would not make its materials available for free for 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 supports the organization’s “continual improvement of its existing curriculum and development of new curriculum,” it says.

Recouping Costs

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 says, 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,” allowing for noncommercial use of the materials, as long as they are attributed to the source and redistributed or modified under the same licensing terms as the original works.

While the lawsuit has implications for K-12, the dispute focuses on an issue that is becoming less of a concern because of overall trends in open licensing, said David Wiley, a longtime proponent of open resources and the chief academic officer at Lumen Learning, a company that provides support for open resources users. Many providers of open resources today are choosing a different type of open license entirely, he said, one that allows for more flexibility and greater commercial use, without restriction—decreasing the likelihood of a battle over who can profit from it. (Wiley said he is an unpaid education fellow at Creative Commons.)

The use of “older, legacy” open content will be affected by the lawsuit, Wiley said, but “the trend is to move toward an even more ‘open’ license.”

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. That money allows the organization to recoup some of its costs and improve and build on its materials, Great Minds officials said.

Some backers of open education materials 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.

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 their open materials. FedEx should be held to the same standard, the lawsuit says.

FedEx officials 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 copying services to 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 couldn’t hire a third-party company—such as a printing and copying service, or an internet service provider hosting online works—to help them bring open materials to teachers and students. “The results would be absurd,” Creative Commons told the court.

Specific Language in Contract

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 in the Creative Commons agreement in question clearly restricts FedEx or other entities 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 noncommercial uses.”

Great Minds’ reading of the terms of the license, he said, is a “common-sense interpretation.”

A version of this article appeared in the October 05, 2016 edition of Education Week as Fedex Targeted in Open Educational Resources Lawsuit


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