SwapNotes — Boon or Bane?

Not sure how I feel about this. I (and it appears tons of other lawprofs) got a note today announcing this:

SwapNotes (www.swapnotes.com) 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).

By linking the courses you teach with the casebooks you use, we hope to make it easier for you to see what other professors who use your casebook have to say. By downloading student notes, you can see how colleagues differ in teaching the same material or what common misconceptions your students may have. Additionally, students won't need to wait on long lines, or consult booklists, to quickly find their casebook. They can just check on SwapNotes.

SwapNotes has been around for less than a semester. Despite its short history, thousands of students have uploaded over 3,000 outlines from dozens of law schools across the United States and Canada, transforming it into a useful resource for professors and students.

On balance, it seems like yet another attempt to provide students with shortcuts which will impair their necessary engagement with the material. And thus not a good thing.

Not to mention that I prefer to control my intellectual property myself.

But I'm not quite ready yet to go as far as the colleague who responded as follows:

I do not wish to have material from any of my courses on your site. Further, I would like you to acknowledge that you are not posting material by any student in my courses on your site, as I am asserting my intellectual property in the lectures that students might quote or transcribe prior to such an attempt to post, and I do not grant you a license to disseminate it.

Although, I confess, I feel the temptation….

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11 Responses to SwapNotes — Boon or Bane?

  1. Andrew says:

    Really? I’m surprised.

    “Blah blah blah blah. … And don’t you dare repeat that! Say it again and it’s the key that unlocks the mysteries of the universe, but also unleashes a terrible curse upon humanity.”

    “F’ you, man! I’ll repeat the words if I choose. Not that you’d know if I did, your BS notwithstanding.”

    What do you get when a law tries to prevent normative consensual private behavior?

    Notwithstanding, there’s a lovely word.

  2. joepatent says:

    What intellectual property? Are you claiming a copyright on the general ideas of contract law? Give me a break!

  3. Michael says:

    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.

  4. Kevin says:

    Back up a second, Michael — I think you’re glossing over an important point by assuming that student notes would constitute a “close copy” and thereofre infringe whatever copyright you have in your lecture notes/performance. As you know, copyright doesn’t extend to facts, nor does it extend to ideas, only the particular expression of those ideas. In instances where students write down your lecture verbatim, of course you’ve got a strong claim. But if (as I think is more common) the note-taking students are more discriminating, and their notes reflect a higher level of abstraction, your claim is much weaker. And this is before we even get into the issue of what happens when the note-taking students integrate their own thoughts, or the comments made by other students during the course of the lecture. (You don’t claim a copyright in student responses to your questions, do you?) While your selection and arrangement of unprotectable materials could still merit protection, even establishing that seems like a pretty uphill battle, especially for professors who didn’t author the casebook they are teaching from. And even in those cases where the professor has selected and arranged the course materials, to the extent there is a limited way to do so (i.e. if most professors teaching introductory constitutional law are using roughly the same cases, perhaps going in roughly chronological order within each subject matter), the copyright in selection/arrangement will be pretty thin or non-existent.

  5. Michael says:

    Well, that’s a fair point: the less the notes are verbatim, and the more they include true value-added by the student, the more they become an original, or at least clearly derivative, work.

    I don’t think lecture notes are a selection or arrangement of works — that’s mostly the casebook — but rather a commentary on them. If all I did was read from the cases, that not only wouldn’t be worthy of protection, it would be BORING.

  6. Kevin says:

    I didn’t mean to imply that your lecture notes were simply cases without commentary (and certainly not that they would be boring!) Rather, my intuitiion is that student note-takers tend to focus on the factual (non-copyrightable) aspects of a lecture: who-did-what-to-whom-and-what-did-the-court-say-about-it, etc. In those cases where the notes *don’t* reflect your commentary, you might still try to assert copyright over the selection/arrangement of the materials that the student did copy (and my point there is that that would be a harder road to hoe).

    It might make for an interesting copyright experiment if you were to solicit unedited notes from your students after one lecture, and post them alongside your own notes in order to conduct an infringement comparison. (SwapNotes, I suppose, is proposing something similar, ostensibly for pedagological purposes, though I tend to doubt they are motivated by academic curiosity or altruism.)

  7. Adam Steiner says:

    Hey Michael,

    One of the form replies you posted, “I do not wish…” is actually one of the nicer ones that have been sent to me at SwapNotes (not including the numerous emails of support).

    SwapNotes was created for a number of reasons, the primary one being to level the playing field. Surely professors recognize that journals and clubs have outline banks, some numbering in the hundreds of outlines. That’s in addition to SBA outline banks and outlines passed from student to student and other websites which do the same thing as SwapNotes. What ends up happening is that some, but not all, are able to get outlines for their courses (if indeed they want).

    Maybe its a bad idea for students to use outlines, though there are arguments on both sides. Some students are better listeners, if they have outlines or notes they can listen and annotate, counter to that argument is let them brief cases beforehand. But the fact of the matter is that they do use them. I’m sure you’re aware that some professor prohibit students from using outlines at all, but I don’t know how many students listen to that and how many just leave their outlines at home or closed on their laptop.

    Outlines and notes are there. They float around. The question is, how best to deal with them. Its not like the past where you’d need to photocopy each page, or where large emails took a long time to send. Everything today is instantaneous and cheap. So, how do you deal with it? Our approach is to centralize it. If outlines are in one place, students will gravitate towards the ones that help them the most (those who use it as a crutch may find it hurts them more, but at a certain point people need to make choices for themselves). Professors, who often discuss how they see the same errors crop up in exam after exam, could download these most popular of outlines and see why the errors are occuring. Why did the student misunderstand? How could it be made clearer?

    Should professors prohibit outline distribution, or should they embrace it? I think they should embrace it. They should realize that there are just as many students playing Freecell and Spider Solitaire as are surfing the ‘net, even in schools with “no access.” Would you rather have them surf the net or look at an old outline? Would you rather them be ahead of the class discussion or possibly miss it?

    Some professors are under the impression that SwapNotes is charging for access to outlines. That couldn’t be farther than the truth. I’d like to reiterate here, for all to see, SwapNotes is free and will remain free. SwapNotes is supported by advertisers and does not charge users, be they students or professors, for access.
    –Adam

  8. tde says:

    I suspect that one reason many professors get upset about this is that the outlines from previous years reveal how little work actually goes into the lectures on a yearly basis.

    I had outlines for several professors from previous years – and there were usually only very minor additions and changes when I actually sat through the lecture. In fact, for one professor someone had noted in the canned outline when the professor would turn pages in HER outline on the lectern and it was accurate.

    And I went to a top 20 school, so I can imagine how bad it is at other schools.

  9. Eli Rabett says:

    I use Blackboard to post my lectures before class. I expect students to have read the notes. I use an LCD projector of the notes in class and ALSO the blackboard (real) to do examples. It is especially helpful when I have to fly.

  10. Michael says:

    tde- It’s certainly true that my lectures this year in Administrative Law — the one course I teach that has a casebook — are in some ways quite similar to last year’s … not counting the extra 50 pages or so of new case material I put together for the supplement (the authors of the book don’t provide one).

    But that’s not true over even the medium term. Casebooks get revised every few years, and that’s an occasion for a reboot. Not to mention that due to my fear that I might get stale over the last 14 years I’ve changed books entirely twice, making this my third one — fourth if you count the most recent major revision of it as a new book, which it basically was. So I’d say it is possible that in a casebook course a set of my notes can last three-four years without only a degree of tweaking. But that’s about the limit. I’d also add that this is more true now than it was when I started teaching. Maybe I’ve gotten old and tired. Or maybe I’ve figured out what I think about some of this stuff.

    But that’s just the sole casebook course. All my other courses are based on my own materials (or jointly developed materials) and they mutate very rapidly.

    That said, I remember from Yale a story that went round about one prof who had used the same lectures, including questions and answers, for 20 years. One year someone who knew stenno transcribed them, and then circulated the notes. Everyone just followed along, word for word, until one woman couldn’t stand it any more: when he called on her to ask the question printed in the outline she was reading off, she gave the answer he wanted, and then added, “And the answer to the question you are about to ask is…”

  11. KLB says:

    For what it’s worth, at the University of Texas School of Law in the 1970s, one could purchase (and I did) outlines of specific courses that closely followed the professors’ lectures (not for first year courses). As to one professor in particular, I recall the outline even correctly stated the jokes he would tell on what day. That was Oil & Gas.

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