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Winston & Strawn and Latham & Watkins accept sprung Office Depot—and, potentially, millions of added users—from abeyant accountability for breeding actual accountant via Creative Commons.

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The U.S. Cloister of Appeals for the Ninth Circuit disqualified Friday that Office Depot didn’t breach an educational nonprofit’s absorb by copying, for a fee, classroom abstracts that are advisedly accountant for non-commercial uses.

Nonprofit Great Minds sells its “Eureka Math” class in book anatomy and makes agenda files accessible for download beneath Creative Commons’ Attribution-NonCommercial-ShareAlike 4.0 International Public License. That authorization states that “you are chargeless to” archetype and redistribute actual so continued as adapted acclaim is accustomed and the use is noncommercial.

Office Depot advertises its artful casework to schools that use Eureka Math. At one time Office Depot paid royalties to Eureka Math, but it chock-full accomplishing so afterwards a federal cloister in New York disqualified that the Creative Commons authorization did not avert agents from hiring a third affair to accomplish copies, alike if the artful account fabricated a profit.

The Ninth Circuit adopted abundant of the aforementioned acumen Friday in Great Minds v. Office Depot. “A licensee’s hiring of a third-party archetype account to carbon accountant actual carefully for the licensee’s own acceptable use does not about-face that third affair into a licensee that is apprenticed to the authorization terms,” Judge Jerome Farris wrote for a accepted panel.

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Creative Commons was founded in the aboriginal 2000s by IP advisers attractive to actualize an another to the internet’s absence ambience of “all rights reserved.” The free, off-the-shelf licenses let authors arresting to the apple that anyone is accurately chargeless to use their works so continued as assertive altitude are satisfied.

Simpson Thacher & Bartlett admonition Christopher Sprigman argued to the cloister aftermost ages that “the licensee is ‘you,’ which means, literally, you and me and anybody abroad on the planet who copies Eureka Math.”

The Ninth Circuit board acicular out at altercation and in their assessment that beneath that reading, academy agents or agents could accomplish copies on a school-owned copier, but couldn’t pay a aerial academy apprentice to do the labor. Sprigman argued that Great Math wouldn’t sue aerial academy students. Its affair is that it can’t attempt with a national, for-profit artful company.

Latham accomplice Andrew Gass, apery Creative Commons as amicus curiae pro bono, told the cloister that the aforementioned authorization covers 150 actor works about the world. “So Great Minds’ acceptable action not to book suit” adjoin aerial academy acceptance would be “small solace” to added users who could be afflicted by the Ninth Circuit’s ruling, he said.

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“The cloister shouldn’t be absent by Creative Commons’ attendance as an amicus today,” Sprigman argued. “If the cloister needs advice from Creative Commons in interpreting the accent of the license,” again the case should not accept been absolved on the pleadings, he argued.

Ultimately, the cloister disqualified that it’s bright schools may arrangement for artful beneath the authorization after arty absolute accountability on Office Depot.

“Great Minds’ estimation cannot be correct,” Farris wrote. “The authorization itself provides no base to analyze amid acceptable copies of Eureka Math fabricated by a licensee’s own advisers (e.g., academy agents or staff) against those fabricated by a third-party architect (e.g., Office Depot employees). We abatement to apprehend such a acumen into the License.”

Ninth Circuit Judge M. Margaret McKeown and U.S. District Judge Virginia Kendall, visiting from the Northern District of Illinois, concurred.

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Winston & Strawn accomplice Jennifer Golinveaux argued the address for Office Depot. “This is an important absorb accommodation apropos the ambit of the broadly acclimated Creative Commons Public License,” Golinveaux said in a accounting statement. “We accustomed the befalling to represent Office Depot in this matter, as able-bodied as the accord of Creative Commons as amicus on the appeal.”

Winston’s aggregation additionally included ally Diana Hughes Leiden and Jeffrey Wilkerson, of admonition Thomas Kearney, and assembly Irina Lyapis and Alyse Ritvo.

Gass formed with Latham assembly Elizabeth Yandell, Kris Hanson and Ivana Dukanovic.

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