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Sunday, March 18, 2007

Posting Student Notes Online = Copyright Infringement?

Over on Discourse.net, Michael Froomkin has an interesting post on SwapNotes, which according to a spam e-mail is "a new free online service that allows students and professors to share notes, outlines, and old exams (which we take down if asked by the professor)."

Froomkin states that he's "[n]ot sure how I feel about this." Not only does it "seem[ ] like yet another attempt to provide students with shortcuts which will impair their necessary engagement with the material," but also "I prefer to control my intellectual property myself." Indeed, Froomkin says that while he is not ready to go as far as one colleague, who has written to SwapNotes to "assert[ ] my intellectual property in the lectures that students might quote or transcribe," he has felt the "temptation" to do so.

I'm all in favor of enforcing copyright claims, but this one seems problematic for several reasons. I'm not convinced that, in most cases, law professors will have copyright rights that they could theoretically enforce against student note-takers.

Froomkin expanded on his reference to intellectual property rights in the comments section of his post:

It's clear beyond debate that I have a copyright in my lecture notes.

The lecture is a performance of the notes. That's protected too.

The students' notes, to the extent that they are a close copy of the performance (or my notes), would be infringing works were it not for the implied license they obviously have to make the notes. But there's no reason to believe that this license extends to running off large numbers of copies, much less to online posting.

That, at least, is the argument. The only step that is even debatable is how broad the implied license is.

First, as one comment notes, there is the question of whether the student notes will actually capture a significant amount copyrightable expression in a lecture. The notes may be focused more on facts than expression ("Hadley v. Baxendale, case involving a broken mill shaft," etc.), and there's an obvious merger issue (and perhaps scenes a faire, to the extent a lecturer makes the same comments in discussing a case that just about every law professor makes). Even if there's some copyrightable bits left over, the test for infringement is "substantial similarity."

There's also the issue, somewhat peculiar to law professors, that a lot of what happens in class is not a lecture, per se, and thus arguably a scripted performance, but rather is an interactive exercise between professors and students -- i.e., Socratic method. I have a lot more to say about copyright in interactive works with respect to video games (see, e.g., this forthcoming paper), but for now let's just note that the professor surely doesn't have a copyright in student input.

That leads to a third problem, which is going to vary in importance from professor to professor. But in my experience, my notes often don't reflect very well what I actually say.  In copyright lingo, my in-class performance is arguably not "fixed in any tangible medium of expression," in the same way a jazz performance might not be fixed if all that is written down is the riff. (I'm not saying my classes are as entertaining as a jazz performance -- fortunately copyrightability does not depend on artistic quality.) If it's material that I'm less familiar with, I often compile detailed notes, which under the pressure of actually standing behind a podium often produces the MEGO effect (My Eyes Glaze Over) -- so I wind up extemporizing anyway. And for material I know well, my notes resemble an agenda more than a script. In either case, fixation of the actual performance is questionable.

Finally, there's the implied license question. Froomkin appears to believe that the implied license professors grant to students is to copy portions of a lecture once for their personal use, with no right of redistribution. That may not be right, however, particularly for law students. The hoary old film "The Paper Chase" displays what is a time-honored practice among law students: the compilation and distribution of outlines among students. It is widely known, I think, that such outlines are distributed beyond the one semester for which they are produced. Placing them online seems to alters the means of redistribution, but not the fact of redistribution.

The implied license question reminds me of the old, pre-1976 Act chestnut, Hemingway's Estate v. Random House, Inc., 23 N.Y.2d 341 (1968). In Hemingway, the court considered a common-law copyright claim against the author of "Papa Hemingway," which included extensive quotes from interviews with Hemingway before he died. The author had previously published articles in which he quoted from those discussions, without objection from Hemingway. Dodging the issue of whether common-law copyright existed in oral utterances, the court found no infringement, since:

Hemingway never suggested to [the defendant, Hotchner] or to anyone else that he regarded his conversational remarks to be 'literary creations' or that he was of a mind to restrict Hotchner's use of the notes and recordings which Hemingway knew him to be accumulating. On the contrary, as we have already observed, it had become a continuing practice, during Hemingway's lifetime, for Hotchner to write articles about Hemingway, consisting largely of quotations from the latter's conversation--and of all of this Hemingway approved. In these circumstances, authority to publish must be implied, thus negativing the reservation of any common-law copyright.

Hemingway seems to give comfort to reporters, at least--if nothing else is said about the matter, speaking to a newspaper reporter gives the reporter an implied license to publish the conversation in the newspaper the next day. But if I am correct about the common practice of law students, I think it would also give comfort to SwapNotes, keeping in mind that the decision on its face applies only to common-law copyright (arguably still permitted under Section 301(b)(1)), and not statutory copyright in scripted performances.

This dispute is just one more way in which previously clear lines between consumers and producers is being blurred, with confusing consequences.

Posted by Bruce Boyden on March 18, 2007 at 02:48 PM in Intellectual Property, Teaching Law | Permalink

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If a lecture is a performance based on the professor's lecture notes, a student's notes on that performance is literary criticism. Alternatively, it could be seen as sports commentary. To enforce copyright against such descriptions would be to invalidate any close textual reading or running commentaries--counter to the entire movement of blogs and the internet generally. Its surprising that an internet scholar like Froomkin doesn't see that.

Posted by: Bart Motes | Mar 18, 2007 5:26:57 PM

Froomkin asserts: "It's clear beyond debate that I have a copyright in my lecture notes."

Is that really so clear? I'd like to see his employment contract with his University. They might feel different about the content of his lectures.

For example, if he were to videotape his lectures and try to sell them on his own--on the assumption he owns all the rights, are we to seriously believe his University would be A-OK with that?

Maybe I'm off base, as I have no idea what kind of employment contracts professors have (if any). However, without specific knowledge of a contract, I'd say a very reasonable argument could be made that lectures are a work-for-hire and that they belong to the university. Either way I don't know it's "clear beyond debate".

Posted by: Dave! | Mar 18, 2007 6:39:43 PM

I can assure you that my employment agreement with UM allows me full copyright in my work product. I know because I wrote that section of the faculty manual. In addition, almost all federal courts which have considered the work for hire doctrine in the academic context have decided that it doesn't apply to university professors. Even though I grant that there's no obvious reason for this exception in the text of the statute.

As to Bruce's point about students sharing notes in study groups, I also agree that this small number of copies is clearly within any implied license -- which is why I suggested the implied license might stop at "large numbers" of copies. Sharing them with the whole class, selling them via the SBA, these seem to me to be cases which arguably cross the line, although in practice no one tends to make a fuss. Publishing them in a book would I think clearly go well over the line, and I don't see the difference between web publishing and book publishing in this context. Do you?

Posted by: Michael Froomkin | Mar 18, 2007 6:51:39 PM

Michael: This will expose my enormous ignorance on the topic, but I'm a little unclear what it means to say that "almost all federal courts which have considered the work for hire doctrine in the academic context have decided that it doesn't apply to university professors." I'm assuming that this means something about a default rule in the absence of a contractual provision expressly providing otherwise. I.e., I'm assuming that this means that unless the terms of the employment contract expressly say otherwise, professors retain the copyright over their lectures. But I'm also assuming that this rule could be overcome by express contractual language. Is that correct? If so, then you may well be right about your retention of the copyright in your lectures, but I guess the answer might be different elsewhere.

Posted by: Trevor Morrison | Mar 18, 2007 7:30:17 PM

Consider also that if notes are an outline, and not the actual words spoken, then there may be no copyright. I suppose the fixation requirement can be met if the students write the performance verbatim, but that's unlikely. Best to tape every lecture to fix the performance, I would think.

Posted by: Michael Risch | Mar 18, 2007 9:11:37 PM

The work-for-hire issue is an interesting one. As Michael Froomkin suggests, the presumption is generally that professors' scholarly work, including their lecture notes, are their own property. That presumption is based on an old "teacher exemption" to the work-for-hire doctrine. But as the Nimmer treatise notes, it's not clear that the teacher exemption survived the 1976 Act. See 1 Nimmer on Copyright § 5.03[B][1][b][i] n.94. There is one district court case in Colorado holding that it did not. Many universities, however (including, apparently, UM), expressly provide in their employment agreements that the W/F/H doctrine does not apply.

As Michael Risch suggests, my fixation objection could be addressed pretty easily by recording every lecture. Indeed, Washington & Lee has a taping system in every classroom. This may be the wave of the future. But it creates a specter that *I'm* really worried about, the collapse of semi-public spaces into globally public spaces. But that's privacy, not copyright.

Michael (Froomkin), I'm not sure when it comes to implied licenses that you can draw such fine distinctions. I think the Hemingway decision is reasonable, but Hemingway never approved "Papa Hemingway," only various magazine articles. The Estate *could* therefore have argued that the implied license went "over the line" at books, which have greater reach and permanence than magazines. I think the better argument is that redistribution was impliedly authorized.

Of course, implied licenses can be pretty easily circumvented by making the terms of the license express: "Thou shalt not redistribute my copyrightable expression beyond any outline groups formed during this semester," intoned at the beginning of each semester. But I would still have the first two concerns above.

Posted by: Bruce Boyden | Mar 18, 2007 11:03:08 PM

Also, on the issue of implied vs. express licenses--does this indicate that Prof. Froomkin could expressly forbid, say, any note-taking in the course? Perhaps Froomkin might have his own notes, that he would like to sell to his students, or whatever. This would obviously be poor pedagogy, but is it allowed? Or an allowance that one might take notes for oneself (notetaking promotes active learning and all that), but, in order to encourage regular class attendance, forbid sharing one's notes with even a single classmate who missed class.

I must admit I am not as up on fair use and whatnot as I might be, though. Do you really need express written consent of major league baseball to even write about who won the game in the paper the next day?

Posted by: Andrew | Mar 19, 2007 2:19:04 PM

Well, let's take a hypothetical professor and leave Michael out of it. Even if Professor A is within her rights under copyright law to ban her students from note-taking, that doesn't mean she's within, say, her rights as a law professor. Professor A could, say, assign her own textbook, but then refuse to sell any copies to the student bookstore or to the students directly. That's within her distribution rights, assuming she holds the copyright and hasn't distributed it to anyone else yet. But it would be lunatic behavior.

Re: sports games, the specific scenario you describe was actually litigated in NBA v. Motorola, 105 F.3d 841 (2d Cir. 1997). The answer, at least in the 2nd Circuit, is that sports games themselves (distinguished from the broadcasts) are not copyrightable, and neither the games nor the broadcasts are subject to a "hot news" misappropriation claim. But that's just a matter of choosing the right analogy. One analogy would be news coverage of clearly copyrightable expression, that is not an artistic review, such as perhaps a speech. Martin Luther King's estate has been defending the copyright in his "I Have a Dream" speech for years, so there is some precedent that at least a verbatim transcript may be infringing. See Estate of Martin Luther King, Jr., Inc. v. CBS, Inc., 194 F.3d 1211 (11th Cir. 1999). I have trouble believing that something significantly less than a verbatim transcript, such as your standard newspaper article, covering a newsworthy speech would lose a fair use claim, but I have not researched that precise question.

If I'm wrong, it's not only student notes that are at issue. What about professor notes of talks given at professional conferences, such as Rebecca Tushnet's notes of my talk at Pittsburgh linked to above? Does everyone attending such talks have an implied license to post them on the web? Michael Froomkin's position would appear to be no, that the implied license extends only to the limits of the previous, paper-world uses of such notes, absent some affirmative indication to the contrary. Of course, whenever Rebecca (or others, such as Larry Solum) is present at a conference, she is practically a walking implied license since she has been blogging conferences for a while now. But if you have to blog conferences to get an implied license to blog conferences, that would seem to be a vicious Catch-22.

Posted by: Bruce Boyden | Mar 19, 2007 4:42:53 PM

I'm not sure why this isn't a Feist issue -- the notes the students are taking aren't (hopefully) a transcription of the words of the lecture, they're a distillation of the ideas in the lecture. Michael R. has got to be right. Otherwise, here's the ugly hypo: student learns something in class. Writes law review article about it, not using any (or more than a fair use portion) of professor's words. Copyright infringement? Uh, no.

Posted by: Paul Gowder | Mar 19, 2007 4:46:26 PM

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