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October 2018
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Creative Commons Continues To Try To Help Courts Understand What Its NonCommercial License Means

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Over the years we've expressed some concerns about the NonCommercial license option from Creative Commons. Even as we're incredibly supportive of CC, the NonCommercial license often seemed to raise more questions than answers -- to the point that some have argued that it actually harmed CC's brand and resulted in significant confusion for how CC licenses work. There have even been suggestions that CC should drop the NC license option altogether.To its immense credit, people at Creative Commons have appeared to take these concerns quite seriously over the past few years, doing quite a bit of work to try to clarify what NonCommercial means for the purpose of the license. Our specific concern is that NonCommercial could mean all different things to different people. If you're using a NonCommercial CC-licensed image on a personal blog and you have ads on that blog (even if you don't make much money from it) is that non commercial? If you use it in a tweet and your Twitter bio promotes your business is that non commercial?Two years ago we wrote about Creative Commons stepping in to file an amicus brief in a case that raised some specific issues concerning a NonCommercial license. An educational non-profit, Great Minds, sued FedEx over FedEx Office shops photocopying some Great Minds works for educational entities, even though the works were licensed under CC's BY-NC-SA 4.0 license. Great Minds argued that because FedEx made money from copying, it's "commercial" and thus in violation of the license. Creative Commons stepped into that lawsuit and explicitly stated that Great Minds interpretation was wrong.In the FedEx case, both the district court and the 2nd Circuit appeals court rejected Great Minds' interpretation and tossed out the lawsuit saying that the license in question did not limit FedEx from charging for copies. Great Minds also filed a nearly identical case against Office Depot in California, which also was dismissed, despite Great Minds claiming that this case is different than the FedEx one (specifically, it argued that Office Depot employees were "actively soliciting" schools to copy Great Minds' works). The court didn't buy it.That case has now been appealed to the 9th Circuit (who, as we've noted all too frequently, mucks up copyright cases). And Creative Commons is back again asking the court if it can file an amicus brief again. This seems like the perfect situation for an amicus brief, given that Creative Commons certainly should understand its licenses the best. The proposed brief is well worth a read.

Creative Commons appreciates the valuable contributions to thedevelopment of open educational resources made by Great Minds, along with itsuse of a standard CC public license to enable broad reuse of the materials itproduces. However, its interpretation of the Creative Commons license at issue inthis lawsuit is incorrect. As the U.S. Court of Appeals for the Second Circuitcorrectly determined in Great Minds' prior suit against another copy shop, FedExOffice, the license authorizes a bona fide non-commercial user to discharge herlicensed rights by directing a third party like Office Depot to make copies at herinstruction. Creative Commons welcomes and respectfully seeks a similar holdingfrom this Court:
Under the Creative Commons NonCommercial licenseat issue, a bona fide non-commercial user may engagecontractors to exercise the non-commercial user's ownlicensed rights on behalf and at the direction of the noncommercialuser, irrespective of whether the contractor isitself non-commercial actor.
Going into details, CC explains how Great Minds is completely misinterpreting its NC license term:
The CC BY-NC-SA 4.0 license fully authorizes the conduct that GreatMinds contends on appeal is unlawful. The only licensee here is the schooldistrict. Under the terms of the license and prevailing principles of law, a schooldistrict may permissibly use Office Depot as a means by which the school districtexercises its own licensed rights. The license does not restrict the school district tousing only its own employees to exercise those rights; it allows the school districtto engage anyoneemployees and non-employee contractors aliketo do so. Toestablish a rule that denies a licensee the ability to use non-employee actors toexercise the rights it is lawfully entitled to exercise would contravene the plainlanguage of the license and established precedent.To be sure, Office Depot could not on its own initiative make copies ofGreat Minds' curricular materials and sell them for a profit. In that scenario,Office Depot would not be acting at the direction of a bona fide licensee, wouldnot be shielded by any bona fide licensee's license, and thus would itself need torely on the terms and conditions of the CC BY-NC-SA 4.0including limiting itsconduct to non-commercial purposes when reproducing the licensed work. Butthat is not what is alleged here. Instead, on the facts as pleaded, the school districthas, under its license from Great Minds, engaged Office Depot to make copies andpaid Office Depot for the service, just as it could have paid an employee to makethe same copies at an Office Depot store. In that scenario, Office Depot is not alicensee in its own right, and its own, independent purpose is analyticallyirrelevant.
Hopefully the 9th Circuit follows the lead of the 2nd and agrees that Great Minds is misreading the NC part of the license. This would go a long way towards further establishing that NC licenses aren't so limiting.

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Titleist Goes After Another Parody Golf Gear Company After Settling With The First

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A little over a year ago, we discussed how Acushnet, the company that owns brands like Titleist and FootJoy in the golf gear industries, had sued I Made Bogey, a company that created parody golf gear. Crude parodies, at that, with the headlining product being a hat styled after Titleist's famous golf hat that read "Titties" instead of "Titleist." While Acushnet had brought claims of trademark infringement and dilution, we noted at the time both that these claims were fairly specious -- the parody only works in all of this if you are clear on the difference between golf's waspy culture and I Made Bogey's sophmoric take on it -- and that the case would almost certainly be settled out of court. It's not like I Made Bogey had the same gobs of money to throw at the case as Acushnet, after all.Well, it seems like this might be turning into a game of litigious whac-a-mole, as Acushnet has now sued another company pulling the exact same parody and joke, and a whole bunch more.

On Friday, Acushnet set its sights on an Australian company called Golf Gods that is apparently making the same joke. The company’s website boasts a diverse inventory of accessories and apparel — including polo shirts patterned with flamingos or decorated with a cartoon figure breaking his club over his knee — but Acushnet wants punitive damages and an injunction over the line similar to its Titleist products.
The complaint details all of the supposed cases of infringement in question, but one of them is the exact same "Titties" hat that I Made Bogey had been selling. Alongside that one, Acushnet claims that various other parody lines of clothing and apparel also represent trademark infringement and dilution.
In addition to its cursive logo, Acushnet says Golf Gods has been infringing its protected marks “#1 Ball in Golf,” “Pro V1” and “Footjoy.”The latter company’s products use the marks “#1 Sluttiest Ball in Golf,” “Hoe V1” and “Footjob.”
So let's just make a couple of things clear. First, these jokes mostly suck. This kind of lazy parody built on offense is mostly stupid, save for its unique value in poking fun at golf culture. Even there, they barely do the job. Second, tastefulness is not in question when it comes to trademark concerns. For infringement, there needs to be a risk of customer confusion between the companies putting forth these products. That, as was the case with I Made Bogey, is of no concern here. The only value in Golf Gods products rests solely on everyone being in on the joke, no matter how the products themselves are stylized.As for dilution, Acushnet would have to show that these parody products somehow harm the Titleist reputation or steal some of its fame. Again, such claims are laughable. These jokes again only work because Titleist is so famous, well known, and respected. That's the entire point.As was the case the last go around, a settlement is somewhat likely. The one wrinkle is that Golf Gods is an Australian company. Given that the parody company isn't talking about the suit at all, however, indicates that it's taking this seriously. So, again, probably a settlement coming for what is clear parody that ought to be protected.

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