Great Minds v. Fedex Office and Print Services, Inc.
ORDER re [20, 23, 24]: The application of Creative Commons Corporation to file an amicus brief in support of defendant's motion to dismiss is denied. See attached. Ordered by Judge Denis R. Hurley on 2/21/2017. (Gapinski, Michele)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-againstFEDEX OFFICE AND PRINT SERVICES,
Plaintiff is a non-profit organization that produces various educational materials
including a comprehensive math curriculum, Eureka Math, for grades PreK-12 (the “Material”)
used by school districts across the country, for which it owns the federal copyright. Plaintiff
publishes and sells printed book versions of the Material and has entered into royalty bearing
licenses with third parties for commercial reproduction of the Material. Plaintiff also makes the
Material available under a “Creative Commons Attribution - Non Commercial - Share Alike 4.0
International Public License (the “License”). In a nutshell, plaintiff alleges that defendant
violated its copyright when it duplicated the Materials for certain school districts for profit - a
commercial use not authorized by the License. See Complaint ¶¶ 8-18. Defendant has moved to
dismiss the complaint asserting that its duplication of the Materials was permissible under the
License because it was assisting school districts in their noncommercial use of the Materials.
Presently before the Court is an application by Creative Commons Corporation to
file an amicus brief in support of defendant’s motion to dismiss. According to that motion,
“Creative Commons is a global nonprofit organization that enables sharing and reuse of creative
works through the provision of free legal tools” including the “‘off the shelf’ copyright license”
at issue in this case. DE 20 at p.1. Furthermore, “[a]s author and steward of [the License],
Creative Commons is intimately familiar with the [L]icense and the manner in which it operates,
is used, and is relied upon by hundreds of millions of individuals, organizations, entities and
governments [and] thus possess a unique perspective on its proper interpretation and the
consequences of an erroneous one.” Id. at 1-2. The application is denied.
“District Courts have broad discretion to permit or deny the appearance of amici
curiae in a given case.” U.S. v. Yaroshenko, 86 F. Supp.2d 289, 290 (S.D.N.Y. 2015) (internal
quotation marks omitted). “An amicus brief should normally be allowed when a party is not
represented competently or is not represented at all, when the amicus has an interest in some
other case that may be affected by the decision in the present case or when the amicus has unique
information or perspective that can help the court beyond the help that lawyers for the parties are
able to provide. Otherwise leave to file an amicus brief should be denied. Jamaica Hosp. Med.
Ctr., Inc. v. United Health Group, Inc., 584 F. Supp.2d 489, 497 (E.D.N.Y. 2008) (internal
quotations marks omitted).
While it may be true that Creative Commons “is intimately familiar with the
[L]icense and manner in which it operates” and “is used” and “has a unique perspective on its
proper interpretation,” at this stage of the litigation the Court is limited to determining whether
the License is unambiguous in defendant’s favor based on its “four corners,” rendering Creative
Common’s familiarity and perspective irrelevant at this juncture. See Ariel (UK) Limited v.
Reuters Group PLC, 2006 WL 3161467, at *5 (S.D.N.Y. Oct. 31, 2006) ("Dismissal of a claim
for copyright infringement is proper where a contract underlying the suit clearly and
unambiguously demonstrates the existence of defendant’s license to exploit the plaintiff’s
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copyrights . . . .”); see also Powlus v. Chesley Direct LLC, 2011 WL 135822 (S.D.N.Y. Jan. 10,
2011) ( “Ambiguity is determined by looking within the four corners of the document, not to
Dated: Central Islip, New York
February 21, 2017
/s Denis R. Hurley
Denis R. Hurley
United States District Judge
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