Posted on January 31, 2012 in copyright, IP, Pubilc Interest by Comments Off

Although the United States recently (and successfully, for the time being) shelved SOPA, Ireland now faces the same threat. Although U.S. detractors of SOPA had the luxury of attacking the bill as it made its way through Congress, Irish supporters of a free Internet find themselves with less opportunity to object – and much less time. Best walking boots 2017

Ireland’s version of SOPA is not the equivalent of a Congressional bill; instead, it is a statutory instrument(SI), a piece of secondary legislation “made in exercise of a power conferred by statute.” What this means is that the legislation will not be considered by the Oireachtas, the legislature of Ireland, before passing into law. Instead, an emergency debate on the SI has been heard in the Dáil, the lower house of the Oireachtas.

A brief history of “Ireland’s SOPA:” In EMI Records v. UPC Communications, the High Court of Ireland determined that “Ireland is not yet fully in compliance with its obligations under European law.” As per the court’s analysis, European law requires the provision of injunctive remedies against internet service providers who facilitate copyright infringement, and such remedies are absent in Irish law. The proposed statutory instrument is being shepherded by Sean Sherlock, Minister for Research and Innovation of the Department of Jobs, Enterprise and Innovation. The SI would amend the Copyright Act of 2000, giving the judiciary broad powers to grant injunctions against “intermediaries,” such as ISPs, forcing the blocking of target websites.

The Internet Service Providers Association of Ireland has issued a letter objecting to the SI, and TJ McIntyre has posted a FAQ describing what is known about the text of the new instrument (not much, but he includes language from a previous draft) and what the implications of its passage may be. In a nutshell, Ireland’s SOPA may allow courts, when petitioned by copyright owners, to order ISPs and other “intermediaries” to block access to infringing content. He has also commented on the inadequacy of an emergency debate as a substitute for true deliberation.

In some ways this proposed SI is more insidious than SOPA – the provisions of SOPA allowed opposing groups to understand, to a point, how the legislation worked, and what it might allow copyright owners to demand. This SI does not define what the judiciary may order in any injunction, nor does it say what may not be ordered. Uncertainty and a lack of transparency is a large part of the argument against the SI.

During the debate, a number of deputies voiced the concerns noted by Mr. McIntyre and others – notably, the vague language of the SI, as well as potential negative effects on smaller ISPs and sites that post user-generated content. One of the centerpieces of Minister Sherlock’s defense was the idea that the SI “clarifies” preexisting policy – that the EMI v. UPC ruling: (1) exposes Ireland to legal action for alleged non-compliance with European law, and (2) the SI simply closes the hole exposed by the High Court ruling, rather than creating a new remedy for copyright owners. He also emphasized that there are no plans to change the wording of the SI, and that there are no plans to delay its enactment.

Despite the real – and significant –  differences between the proposed SI and SOPA, they both seek an expansion of governmental power to control what is available on the Internet, and they both do so in a manner that leads to legitimate objections including: overly broad remedies for copyright owners at the expense of the public interest; the imposition of burdensome costs on ISPs and other intermediaries; and a chilling effect on Web-based innovation, creativity, and business founded in legal uncertainties.

More information about a petition to stop “Ireland’s SOPA” here.

Posted on January 30, 2012 in copyright, Free Culture, IP, open education by Comments Off

UC Berkeley’s new class notes policy is the equivalent of fighting a kitchen fire with a sledgehammer. Not only is it a disproportionate response, it is an ineffective one as well – one that poses a subtler but greater threat than the fire itself. Berkeley’s policy is not well-supported by federal or state law, and represents a surprising step backwards for the University of California’s flagship campus.

Copyright Permit Required At All Times
(Image by Mike Linksvayer)

 

The policy states that “[i]ndividual instructors retain copyrights to lectures and class presentations, class materials they create, and related material pursuant to U.S. copyright law, California Civil Code § 980 (a)(1), and the University of California’s Policy on Copyright Ownership.” This language invokes three separate wellsprings of authority – federal, state, and institutional. A brief look at each in turn:

Section 102 of the federal Copyright Act informs us that copyright protect subsists, in general, “in original works of authorship fixed in any tangible medium of expression . . . .” The key term for our purposes is “fixed,” which pushes many, if not most, typical classroom lectures out from under the copyright umbrella. Extemporaneous presentations, unless recorded in some manner, do not get copyright protection.

California Civil Code §980 does grant ownership rights on unfixed presentations: “[t]he author of any original work of authorship that is not fixed in any tangible medium of expression has an exclusive ownership in the representation or expression thereof . . . .”  Although the federal Copyright Act, in section 301, explicitly preempts state laws that provide similar rights, §980 avoids such preemption by dealing with works explicitly unprotected by federal copyright. It does look like a good foundation for the Berkeley policy, but the U.S. District Court for the Central District of California has found that §980 reflects a legislative intent “to deny copyright protection to ideas, as opposed to the manner in which they are expressed or represented.” (See page 1423 of the opinion) This preserves the core idea-expression dichotomy that prevents copyright law from protecting ideas and facts, rather than a specific expression of them. In essence, we can say that §980 effectively extends federal copyright-type protection, within the state of California, to unfixed works of authorship, but with limitations on subject matter analogous to those created by §102 of the Copyright Act.

Finally, the University of California’s copyright policy is more a policy statement than a grant of unique institutional rights. It states, in part: “The University encourages the creation of original works of authorship and the free expression and exchange of ideas.” Reasonable minds may disagree on whether copyright protection promotes or stifles the creation of original works, but Berkeley’s policy is an incontrovertible shackle upon students’ ability to engage in any exchange of ideas based upon those works.

How might a judge apply these laws? Faulkner Press v. Class Notes, a federal case in the Northern District of Florida, in which the defendant (a notes reseller) sold note packages including a significant amount of material copyrighted by Professor Michael Moulton. This material was prepared and recorded beforehand, and properly the subject of federal copyright protection. Judge Mickle informs us that fair use is a potential stumbling block for the sort of broad prohibitions embodied by Berkeley’s policy:

Even though the film study questions and practice questions are protected by copyright, genuine issues of fact remain as to whether inclusion of the questions, as well as the lecture summaries, within Class Notes’ note packages constitutes fair use…. Dr. Moulton’s works as a whole are derivative, factual, and published. Furthermore, his film study questions and practice questions are factual compilations. Copyright protection extends only to the selection and arrangement, not to the underlying facts themselves, and “[t]his inevitably means that the copyright in a factual compilation is thin.” Feist. 499 U.S. at 349. So in determining fair use, this factor will weigh against Faulkner Press.

With respect to California state law, some proponents of expanded professorial control over academic presentations find support in the ruling of the California Supreme Court in Williams v. Weisser, a 1969 case in which the court ruled in favor of a plaintiff professor against a note reseller defendant. Two points tend to weaken that support: first, the case predates the Copyright Act of 1976, which expressly preempts state laws that grant analogous rights and remedies. Second, the Court in Williams did not rely upon the protection of unfixed works granted by §980:

This is, therefore, not a case where the concrete expression of the “composition” (Civ. Code, § 980, subd. (a)) consists solely of an intangible oral presentation. (Nimmer on Copyright § 11.1.) As far as this litigation is concerned, the chief importance of the oral presentation is that it provided defendant with access to plaintiff’s work and with an argument that there had been a divestive publication.

Taken together, these two points mean that the common-law copyright jurisprudence applied in this case, in favor of the plaintiff, would today be preempted by federal statute.

A good look at the statutes and their application by judges should be enough to demonstrate that, if they try to exercise the “rights” granted by the Berkeley policy in a court of law, professors shouldn’t rely on an easy victory.

In the next installment: a discussion of the public policy issues that underlie the Berkeley notes policy, and how a licensing-and-permissions-based policy is more in line with the interests of educators and students than a rights-and-restrictions-based one. Also – to what extent do students and professors actually care what school policies say, and how should that inform the content of such policies?

 

Late last year, UC Berkeley implemented a new policy regarding the taking and using of course notes and other class materials. It “sets forth the limitations on use of course notes and course materials and the making and use of recordings of instructors’ class presentations,” and proceeds to describe a rather draconian regime in which students’ use of their notes and class materials – indeed, their right to take notes at all – may be severely curtailed by their professors. Berkeley’s Office of Educational Development has also posted a set of cease and desist letters that professors may use, against students or third parties.

This is the first in a series of posts addressing Berkeley’s new class notes policy – in this introductory post, I will outline the issues involved and point to places where Berkeley’s policy conflicts with federal copyright law. Future posts will include a more detailed analysis of what rights copyright law provides compared to the rights Berkeley’s policy purports to take, as well as the benefits of a permission-based access and dissemination policy over a restriction-based one (essentially, telling people what they can do rather than what they can’t); I will also discuss the validity of the concerns the new policy seeks to address – specifically the professorial interest in repressing his work versus the social interest in open access; and finally, examine what terms a genuinely useful note-taking policy might include, one based on access rather than restriction.

This new policy is an unfortunately ironic development at UC Berkeley, the site of the 2008 Students for Free Culture conference. It was at this conference that the Wheeler Declaration was drafted, which included “open educational materials” as one of the five criteria of a truly “open” university. Needless to say, Berkeley’s new restrictions on the dissemination of such materials represent a step away from the open university movement. Given that all aspects of the University of California’s mission statement – to teach, research, and serve the public – are arguably better served by more distribution of knowledge, rather than less, there seems to be an internal dissonance here as well.

Berkeley and other UC faculty have, naturally, commented on the new policy. Richard Brenneman has an excellent post detailing some of their reactions. He includes e-mails objecting to the policy from Professors Amy Kapczynski and Ignacio Chapela, both at UC Berkeley, as well as comments supportive of the new policy from Professor Robert Meister, President of the Council of UC Faculty Associations. All following quotations from these professors are derived from Mr. Brenneman’s post.

In support of the policy, Professor Meister writes that “This seems to be a belated (and welcome) implementation of AB 1773, which was CUCFA’s response to UC’s (and especially UCLA’s) attempt to exploit a gap in copyright law to claim the right to record and re-use class presentations, such as lectures, and to get adjuncts to expressly agree to this as a condition of employment.” AB 1773 is a California state law, passed in 2000, that amended the California Education Code, adding sections 66450 – 66452. Section 66450 reads as follows:

66450.  (a) Except as authorized by policies developed in accordance with subdivision (a) of Section 66452, no business, agency, or person, including, but not necessarily limited to, an enrolled student, shall prepare, cause to be prepared, give, sell, transfer, or otherwise distribute or publish, for any commercial purpose, any contemporaneous recording of an academic presentation in a classroom or equivalent site of instruction by an instructor of record. This prohibition applies to a recording made in any medium, including, but not necessarily limited to, handwritten or typewritten class notes.

(b) Nothing in this section shall be construed to interfere with the rights of disabled students under law.

(c) As used in this section:

(1) “Academic presentation” means any lecture, speech, performance, exhibit, or other form of academic or aesthetic presentation, made by an instructor of record as part of an authorized course of instruction that is not fixed in a tangible medium of expression.

(2) “Commercial purpose” means any purpose that has financial or economic gain as an objective.

(3) “Instructor of record” means any teacher or staff member employed to teach courses and authorize credit for the successful completion of courses.

Professor Meister’s comments highlight some of the ideological motivations behind the Berkeley policy, which, in his view, has roots in a long-standing conflict of interest between instructors and administrators over who has control over materials created by professors in the employ of the University of California. Professor Meister ends his e-mail with a normative claim, that professorial – rather than institutional – ability to “set the terms on everything beyond note-taking” is a distinction between academics and other varieties of institutional employees that “lies at the heart of academic freedom.” But the language of the California Education Code requires that any claim to such a distinction must rest upon sound legal ground – Section 66452(a) stipulates that “[n]othing in this chapter is intended to change existing law as it pertains to the ownership of academic presentations.” §66450(c)(1) identifies academic presentations as being unfixed – precisely the sort of thing that, as Professor Kapczynski notes, federal copyright law does not protect.

Distilled, the problem Berkeley’s new policy seeks to address seems to run thus: Third parties, gaining access to class notes and materials, have been selling those materials to students and others for a profit. This has already been the subject of litigation, as in Faulkner Press, L.L.C. v. Class Notes, L.L.C., Case. No. 1:08cv49-SPM/GRJ (N.D. Fla., 2010). Disregarding, for the time being, the obvious pecuniary motivations faculty and administrators may have in curtailing such activity, there are normative considerations that are worth discussing – a professor’s right (or lack thereof) to privacy in the comments he makes to a closed classroom, for example, which will be discussed in a later post. Broadly stated, this policy, in attempting to protect the interests of some faculty members against note-selling groups, is most detrimental to students and anyone else interested in open education and technology as a route thereto.

Professor Kapczynski writes that “it’s not obvious that copyright policy offers the best (or an adequate) response to the challenges of peer-to-peer networks for our modes of teaching.” Berkeley’s policy, which responds to these challenges by asserting rights beyond those that federal copyright law actually bestows, and ignoring the availability of fair use defenses where valid rights exist, is almost certainly not the best means by which to balance the interests of institutions, faculty, students, and the public. In the next post on this topic I’ll be examining, in more detail, the interests of all parties affected, relevant copyright law and precedent, and how Berkeley’s policy interacts with both federal law and other UC policies.