Prof Claims Copyright on Publication of Class Notes

Lawsuit Claim: Students' Lecture Notes Infringe on Professor's Copyright:

University of Florida professor Michael Moulton thinks copyright law protects the lectures he gives to his students, and he's headed to court to prove it.

Moulton and his e-textbook publisher are suing Thomas Bean, who runs a company that repackages and sells student notes, arguing that the business is illegal since notes taken during college lectures violate the professor's copyright.

Faulkner Press filed suit in a Florida court Tuesday against the the owner of Einstein's Notes, which sells “study kits” for classes, including Professor Michael Moulton's course on “Wildlife Issues in the New Millennium.”

Those notes are illegal, Faulkner and Moulton contend, since they are derivative works of the professor's copyrighted lectures.

As a doctrinal matter, it seems to me that the prof here has a respectable case. (See the complaint.)

It's important, though, to note some key facts. First, we're not talking about a claim that students can't take notes for their own use — of course they can.

Second, there shouldn't be any doubt that fair use allows students to share notes with other students in the same class in the same year.

Third, I'd argue that fair use extends to sharing notes with other students in the same school, at least if no money changes hands.

Fourth, if students take what they learn and write their own treatment of the subject, that's not copyright infringement, that's wonderful.

If the facts alleged are accurate, however, there are three facts in this case which take it far outside those situations. First, the student was selling the work online for money. Second, it competed with a similar product by the professor. Third, they were pretty similar — the value added by the student over straight transcription is alleged to be not that great.

I've been trying to imagine how I'd feel if a student of mine did something like this. Part of me would admire the entrepreneurial spirit. How the rest of me felt would depend greatly on which course it was. I think for anything I teach out of a casebook, my only issue would be whether the existence of an easily available customized crutch would hamper the learning experience for future students. A big chunk of the originality in a course like Administrative Law is in the selection and arrangement of cases and materials in the casebook; I think — I hope! — I add something valuable to the base, but I doubt very strongly that it's enough to be worth suing over. (One might think that given they're all about the same basic area of law, the books themselves must be very similar, but this is not so.)

But two out of the three courses I'm teaching this year are based on my own materials, put together with some considerable pain and effort. The syllabuses are online, freely available, and one has lots of links to the materials as well; for both I also provide online a series of discussion questions, also viewable by the public.

Legal issues aside, if a student just republished all this for profit without permission, even it the publication credited me in some way, I don't think I'd be pleased: I'd rather the money, if there's going to be some, go to me or to a charity I liked than into the pockets of a somewhat random corporation and/or individual. Of course, there could come a point where the student's addition of original commentary took it out of the realm of simple copying; that might be different. But short of that, I would not be pleased.

I'd be curious to hear, though, how current (and former) students feel about this.

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10 Responses to Prof Claims Copyright on Publication of Class Notes

  1. Donald A. Coffin says:

    These services have been around for a long time. Some of the earliest ones–I don’t know about the current one–paid students who were no enrolled in the course to attend and take notes. That created, I would guess, an even stronger claim by faculty.

  2. Donald A. Coffin says:

    These services have been around for a long time. Some of the earliest ones–I don’t know about the current one–paid students who were not enrolled in the course to attend and take notes. That created, I would guess, an even stronger claim by faculty.

  3. anon says:

    i took wildife issues in 2001, i think, before the materials turned into an “e-book.” by way of background, its a course that requires the professor’s own book to pass — not just that he designed the materials, but, in fact, the exams were lifted directly from the printed materials — its a gen ed class designed to be a near-automatic A or B for anyone who takes it, and if you read the book you will find the answers to the exam questions, verbatim, in order.

    although im sympathetic to the copyright claims, this course and others at UF like it, are part of long tradition of professors extorting royalties out of their own students. apparently “faulker press” is run out of some guy’s house in gville and is explicitly a racket for publishing prof’s “books,” which they require for their own classes, and the purchase price for which is promptly kicked back to the prof. its the one that the business law professor (not in the law school, but law-for-undergrads in the business college) uses, and is constantly threatening to fail any student he catches taking notes. the rumor is that the college of business reprimanded him for fleecing students, but theres no confirmation.

  4. ruidh says:

    What is the professor teaching? Is he teaching unprotectable ideas or protected expression? Is the professor claiming copyright in the selection and organization of ideas?

    The purpose of a student taking notes is to record the ideas being communicated in the class as an aid to learning. The notes should not be verbatim recordings of the entire lecture, but they should include the ideas that the professor believes are important.

    If notes are a derivative work, they are likely derivative of the unprotectable ideas and not the protectable expressions.

    It’s just more overreaching copyright claims by stakeholders.

  5. Donald A. Coffin says:

    Note that the claim is (1) not that student note-takins infringes copyright, but (2) that students taking notes and then selling those notes infringes copyright. Not being a lawyer, I don’t know if this makes a major difference, but ruidh’s argument is clearly directed at (1), not at (2).

  6. Davis X. Machina says:

    When Aristotle’s students did the — although we don’t know whether obols changed hands — the resulting work product still bears the author’s name — Aristotle.

    And that was a legal system with no notion of copyright whatsoever.

  7. howie says:

    Maybe this practice should be prohibited explicitly in the student handbook like so many other things are, or attendees should be required to sign a contract upon enrolling in professors’ courses where they aren’t permitted to do this. Otherwise, they shouldn’t be expected not to share class notes for profit. What’s to stop them?

  8. Altoid says:

    I had a run-in about this around 15 years ago. Enrolled students (one or more) in a lecture section were taking notes and selling them to a company that then typed up and resold the notes to students. It was a very well-organized operation that seemed to be making money, because they sold notes from dozens of classes. Naive me, I didn’t know there were outfits like that and I was really p-o’ed, so I wrote to the dean’s office. It was my understanding at the time– pre-DMCA– that what I say in class is no different, copyright-wise, than a book, and nobody has the right to reproduce copyrighted material without permission, which I didn’t give. Nobody has the right to tape, for example, without permission, right?

    The university’s legal people eventually got back to the dean and held that since the note-taking students had paid tuition there was nothing they or I could do about it. That may be so as a practical matter, but I still don’t like it. I didn’t and don’t pull the crap anon mentions, but I did and do spend a lot of time and effort putting things together as I see them. Often it isn’t just the expression but the ideas that are mine, in some sense, though of course I can’t claim complete originality. So I’m reluctant to agree to the notion of a hard and fast distinction between the original and derivative works. We do cite ideas, not just expression, in our own works.

    What I objected to was the fact that both the student and the third party were making money off the work I put into those lectures, that they didn’t ask or notify me about doing what they were doing, and that they enabled other students to skip out and short-change themselves. I still think it stinks. What might make it even worse, or a case of just deserts, is that the notes were only so-so at best.

  9. Jack says:

    A few observations:

    In order for a lecture to obtain copyright protection, it must be reduced to a tangible form, e.g., tape recording or original lecture notes. Only the lecturer’s actual words are protectable, not the general sense of the lecture. Unless the student making his notes is copying the lecturer’s actual words, there is no possible infringement.

    When a person speaks or lectures, those words are not automatically protected by copyright. If a tangible copy is made of the performance of that lecture, by tape for example, then that recorded performance is protectable. Otherwise, every word out of each person’s mouth would be subject to a claim of copyright, a mind-boggling concept, precisely why there is the requirement for reduction to tangible form for copyright protection to obtain.

    Finally, the lecturer is employed by the university to provide the lecture to the students and has been paid for his/her service. It seems the lecturer is looking for double compensation for his/her efforts. Not only has the student paid for the right to hear and do what he/she will with the lecture, but the lecturer has been compensated for giving it. While most professorial employment contracts probably don’t cover the subject, nevertheless, the professor should rightly be considered an “employe-for-hire” as that term is used in the copyright law in connection with delivering his/her lectures to students, thus, placing the ownership of the copyright for the lecture, if any, to the school, as employer.

  10. Brautigan says:

    Copyright claim is crap, for the reasons Jack said. But why don’t schools just protect agains this contractually, with site license?

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