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.