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Eureka Math Publisher Loses in Copyright Battle Against Office Depot

Here's a school law dispute that probably would have never happened during the heyday of the blue-ink mimeograph machine.

A federal appeals court has upheld the dismissal of a lawsuit brought by a curriculum provider alleging that Office Depot infringed its copyright when it copied Eureka Math at the request of school districts.

Great Minds, the Washington-based nonprofit publisher of the curriculum, offers a broad copyright license to schools and the public for free downloads of Eureka Math for non-commercial use. But the terms of the license reserves the right to collect royalties when the curriculum is copied for commercial purposes.

Court papers say Office Depot Inc., the Boca Raton, Fla.-based retail chain of some 1,300 retail outlets nationwide, engages in a specialty market marketing its copying services to schools and school districts. In 2015, Office Depot entered into a separate licensing agreement with Great Minds to pay royalties for copying Eureka Math.

But Office Depot ended the agreement after a federal district court in New York state ruled against Great Minds in a copyright challenge to FedEx Office and Print Services Inc. over that chain's copying of Eureka Math for school districts.

Great Minds sued Office Depot in 2017, asserting essentially the same theory of copyright infringement rejected in the FedEx case, that Office Depot was "deliberately and willfully infringing [Great Minds' copyrights] by actively soliciting customers for commercial reproduction of Eureka Math," the publisher's suit said.

A federal district court in California dismissed Great Minds' suit, and in a Dec. 27 decision, a three-judge panel of the U.S. Court of Appeals for the 9th Circuit, based in San Francisco, unanimously upheld the dismissal.

The appeals court, in Great Minds v. Office Depot Inc., said there was no dispute that schools and districts could copy Eureka Math for free under the terms of Great Minds' license. The question was whether schools and districts could hire Office Depot to make the copies of curriculum materials.

Office Depot is not a "downstream recipient" of the schools' licenses, the court held.

"That Office Depot employed field representatives to advertise the availability of copying services for schools and school districts that use Eureka Math does not confer a licensee status on Office Depot," the court said.

Nor was it legally significant that Office Depot employees did the copying, as Great Minds argued, the court said, adding that the publisher's arguments would produce these "absurd results":

  • A teacher could copy Eureka Math on an Office Depot-owned copy machine for a fee in-store, but could not hand the materials to an Office Depot employee to be copied;
  • A school could pay a copy machine provider a monthly fee to keep a machine on site to copy Eureka Math, but could not pay Office Depot employees to make the same copies; and
  • A school could permit teachers to copy Eureka Math on school-owned or leased machines, but could not pay a high school student to make the same copies.

"Great Minds' interpretation cannot be correct," the court said. "The license itself provides no basis to distinguish between permitted copies of Eureka Math made by a licensee's own employees (e.g., school teachers or staff) versus those made by a third-party contractor (e.g., Office Depot employees)."

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