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Posted on May 7, 2012 in IP by Comments Off

The “fundamental missions” of the University of California are “teaching, research, and public service.” All three of these missions are based on relationships – between teacher and student, science and progress, and universities and the public. These are symbiotic, rather than authoritarian, relationships, and yet – at least in the case of the teacher and student – Berkeley’s class notes policy gives its professors the sort of powers despots would approve of. There are better ways to manage the rights and responsibilities of professors and students.

It might be laughable to think that professors would really use the Berkeley policy to crack down on student notetaking, checking laptops at the door and randomly searching for pens, pencils, or even Sharpies, the WMDs of writing instruments. But why allow even the thought? A reasonable open-access policy can protect the rights of professors, while adhering, in language and in practice, to the mission statement of the University.

Let’s step away from California for a moment and generalize – what should a reasonably “open” policy on student note-taking include? Such a policy should embody a balanced set of permissions (preemptively granted to students) and limited restrictions (which professors may use when necessary), placing neither student nor professor above the other with respect to works like class notes, which are ideally the products of collaboration anyway.

To be fair, the Berkeley policy defaults to a permissive stance towards notetaking, requiring that professors expressly forbid or otherwise restrict notetaking activity during class. This is a start, but in general, students should be entirely free to take notes in whatever non-disruptive manner they choose. Of course, professors shouldn’t be particularly limited in how they define “disruptive.” What follows is a set of guidelines that should underpin a reasonably open note-taking policy:

  • Acknowledge the mission of the institution, and ensure that policies serve and reflect that mission.
  • Restrictions should be limited, and narrowly tailored to specific acts or activities.
    • Professors have the right to encourage a preferred type of classroom atmosphere, but restrictions placed on students’ ability to take notes and otherwise share information should be minimal, and justified by specifically addressing the advantages and disadvantages of any proposed restrictions.
  • Professors and students should engage in dialogue over their respective expectations of, and rights to, privacy.
  • Address copyright matters in an accurate and nuanced manner:
    • Copyright protects expression, not facts or ideas.
    • Fair use must be recognized and accepted, and not limited.
  • Proper attribution is critical in academia; students (and professors, for that matter) should acknowledge the authors of any material they use.
  • There are three general categories of use of materials:
    • Material that is unquestionably fair to use, such as any non-verbatim notes that students may take.
    • Material that “skirts” the boundaries, typically because use may violate someone’s privacy rights or interests.
    • Material that is rightly protected by copyright, such as pre-written notes or Powerpoint presentations that professors may distribute in class.

There are many interests at play in the classroom; Berkeley’s policy emphasizes the interest of the professor in his original works, as well as in ensuring the accuracy of statements attributed to him. These are important considerations, and legitimate reasons for certain restrictions. However, tying the whole educational process up in chains of copyright is not the answer. To do so uses false legalistic authority to obscure a genuine legal quandary that is only partially based in copyright: what is a professor’s legitimate and reasonable expectation of privacy in a classroom, and what are the limits of a given student’s right to free expression? A few years ago, PBS’s Mediashift “embedded” a student reporter into an NYU journalism class, and ended up confronting some of the same issues of privacy and student freedom. William Creeley of the Foundation for Individual Rights in Education also wrote an article about the legal issues involved in that case. Professors who discuss unpublished work in their classes should be aware that their right to privacy in classrooms may be quite diminished. Students should be aware of school policies, particularly at private schools, though few worthwhile institutions would advertise themselves as being against free speech and expression.

Open licensing provides a flexible approach for pre-prepared or unpublished material. Creative Commons allows professors to tailor permissions for their works, ranging from allowing almost anything and everything to be done with their work, including commercial use, to preventing anything other than simply passing along an unaltered work, with proper attribution. When presenting a manuscript or other work not yet published, professors should realize that they are not in a private space, and students should recognize that such materials do implicate copyright law. This sort of scenario – uncommon, difficult to generalize, and intricately tied to law –  should lie at the borders of a class-notes policy, not at its heart.

Posted on March 28, 2012 in IP by Comments Off

TechWorld reports that Graphics Properties Holdings, the post-bankruptcy incarnation of Silicon Graphics, is suing mobile device makers for infringement of a graphics-related patent. Smartphone manufacturers are no strangers to patent lawsuits, of course, but I think that this latest salvo is a good illustration of how the dual regimes of patent law and rent-seeking litigation do nothing but divert resources from actual innovation.

The patent in question, number 8,144,158, describes a “rendering circuit,” the novelty of which appears to lie in the use of floating-point rather than fixed-point data to create images, thereby allowing for more complexity and accuracy in the resulting images.

As an absolute layman in the field of graphics technology, all I want to point out in the actual patent is this: the “Background Art” section of the patent description points out that the advantages of operating with floating-point data are well-known, and that a large part of the reason why floating-point data was not previously used lay in hardware limitations. A good question, then (and one that the manufacturer’s lawyers are probably studying like crazy), is whether a graphics person would think it obvious to use floating-point data in the way the patent describes, given the existence of suitable hardware. If it would have been obvious, then the patent should be invalidated under Section 103 of the Patent Act. If not, then Graphics Properties, under the law, and assuming nothing else is wrong with the patent, is entitled to damages and/or possibly an injunction.

Either way there is a clear policy problem – the fact that low-quality patents enter the system and cause wildly objectionable allocations of resources (either through unjustified licensing fees paid to avoid litigation, or the litigation costs incurred in correcting the patent office’s mistake), or the fact that a company that doesn’t practice or in any way promulgate its invention has rights against a party that does give the public the benefit of the invention. The second problem would be mitigated somewhat, at least morally, if so-called “innocent infringers” were protected – but they aren’t.

Timothy B. Lee points briefly but eloquently to the moral argument against patents, and more importantly, sets that moral argument atop a strong empirical showing that figuring out the patent morass is essentially impossible in certain fields. Graphics Properties might have an enforceable patent – but Apple, Samsung, HTC, and others put the invention in your pocket. Enforcing the patent, if it’s valid, doesn’t promote progress, or magically force companies to innovate more – it removes that invention from the field, it forces practicing companies to spend money to license or attack the patent, or “innovate around” it – or simply stop using that presumably beneficial invention. Mark Lemley posits that innovation occurs despite patent law – because companies simply ignore it. Here, patent law is an agent of stagnation – it allows the ghosts of companies past to haunt companies that actually do things. As a society, we probably should not be empowering ghosts.

Posted on March 21, 2012 in Patent by Comments Off

The Supreme Court’s ruling in Mayo v. Prometheus, is, by several accounts, a horrible precedent for patent law and research-driven industries. Some background for non-patent-lawyers: Mayo addresses the validity of a patent held by Prometheus Labs, Inc., which claimed a “method of optimizing therapeutic efficacy” that essentially works by increasing or decreasing the administered dose of a compound (6-thioguanine, here) based on measured levels of the compound in a person after an initial dose. The Court invalidated Prometheus’ patents, following this reasoning:

[T]he claim simply tells doctors to: (1) measure (somehow) the current level of the relevant metabolite, (2) use particular (unpatenta­ble) laws of nature (which the claim sets forth) to calculate the current toxicity/inefficacy limits, and (3) reconsider the drug dosage in light of the law. These instructions add nothing specific to the laws of nature other than what is well-understood, routine, conventional activity, previously engaged in by those in the field. (page 13 of the opinion)

For more information about the decision, Dennis Crouch has posted an excellent and thorough analysis of the opinion at PatentlyO. On its face, the decision is a clear rejection of broad patent eligibility for claims that apply laws of nature, with particular attention paid to fields associated with medicine. Going deeper, Gene Quinn, of IPWatchdog, has posted a detailed criticism of the decision that argues, in effect, that SCOTUS has applied a false reading of patent law, and in so doing, has “nullified §§102, 103, and 112 [of the Patent Act].” The Mayo ruling may also have implications for the Myriad gene patent litigation – Mr. Crouch at PatentlyO speculates that Myriad (where the Federal Circuit previously ruled that DNA sequences can be patentable subject matter) may be vacated and remanded. Courtenay Brinckerhoff, of Foley & Lardner LLP, notes that “[m]any may view the Court’s decision as upsetting the status quo of patent-eligibility….”

Implicit in the ongoing criticism of the Mayo opinion is the assumption that patents are necessary to the continued vitality of American research industries. This is, at least, arguable – Mark Lemley, in his paper Ignoring Patents, argues that companies in patent-intensive field simply ignore patents. Heidi Williams of MIT, in an excellent working paper, noted that intellectual property (within the empirical context of gene patents) tends to decrease, rather than promote, downstream innovation by researchers.

Many advocates of patent reform point to the “patent thicket” and the inability of companies to efficiently and effectively determine who they may owe royalties to. As a policy issue, health advocates oppose the ability of companies to prevent medical practitioners from using patented treatment methods, or at least charge a premium for their use. The Mayo decision may significantly alter the patent landscape by significantly shrinking the universe of protectable subject matter and imposing stricter review of claims based on natural laws. If it in fact does so, it would be well for reform advocates to keep a close, data-gathering eye on the biotech industry. With fewer patents to rely on, genuine market competition will become a larger factor in the success of the industry, and empirical evidence of growth would help contribute to a more informed public debate on the necessity of IP laws in general.

Posted on March 7, 2012 in copyright, Fair Use, open education by Comments Off

Continuing our discussion of UC Berkeley’s new class notes policy, I’d like to argue that (1) permissions-based policies, such as those embodied in Creative Commons licenses, create less uncertainty and better serve the purposes of professors and students, and (2) to the extent that education is perceived as lying beyond the free market, the invocation of copyright law is counterproductive at best, and hypocritical at worst.

Let’s assume, for argument’s sake, that teaching is a unique profession, one worthy of special consideration. For convenience’s sake, I’ll call this the sui generis position. This appears to be the position of some professors’ writings in support of policies that (as discussed previously) claim copyright protection in class lecture notes to a legally questionable extent. Such support essentially argues that content created by professors and presented in classrooms should be more thoroughly protected against unauthorized use and reproduction.

Within the sui generis position, there is another position, described by Professor Ignacio Chapela in a writing reproduced at Richard Brenneman’s original post about Berkeley’s new policy:

Copyright is clearly only a subservient appendix to the commodification and privatization trends in professional training, but one that is self-defeating and absurd even in its own terms.

This quote follows a refutation of the notion that recordings or notes of the educational process are equivalent to the educational process; Professor Chapela will resist “… the commodification of my life as a teacher and researcher….” So a belief in a fundamental distinction between education and other vocations that create content can lead to two fairly divergent positions with respect to copyright protection. I think that Professor Chapela’s position is more consistent with the basic precept; the enhanced protection advocates seem to assume that market activities present a threat to their activities – in other words, the singular status of education is not something inherent (and therefore safe), but rather an imposition, an artificial separation between education and other social activities that must be maintained through policy.

One of the primary failings of a policy like Berkeley’s is that it ignores the fact that several disparate interests exist within the spectrum of work that a professor may use in teaching his or her students. As it stands, the policy assumes an adversarial relationship between student and professor – that students learn only by the leave of the professor, and that they are at all points in the educational process suspected of divulging pedagogical secrets to for-profit notes distributors.

Policies based on restrictions can, in fact, do a good and thorough job of addressing adverse effects. They are also basically useless at promoting positive effects. Permissions-based policies, in the educational realm, offer far more certainty for students as to what is allowed; they are explicitly told what they may do, as opposed to vague warnings about professors may forbid them from doing. Insofar as a primary goal of Berkeley’s policy is to prevent commercial dissemination, a professor might attach any of three Creative Commons licenses that explicitly prevent commercial use to any prepared materials distributed to students. Such a restriction still allows for the possibility of a defense grounded in fair use, even for commercial uses, but that uncertainty is certainly not lessened in a policy as restrictive as Berkeley’s. The cases that proponents of Berkeley-type policies refer to, as well as the cases I discussed in the previous installment, are by no means strong supports for such policies.

Right around the time period (the early 2000s) when legislators and academics in California were batting about the issue of increased protections for lectures, researchers at the University of Michigan were thinking about the problem of low-quality notetaking by students. Collaborative review, reorganization, and rephrasing of concepts are some of the tools suggested by the UMich paper – such activites, in a balancing act between professors’ and students’ rights (or, phrased differently – between professors’ rights and professors’ responsibilities), should be encouraged by school policies. This cannot be properly accomplished by merely emphasizing professorial copyright; that, as Berkeley’s attempt shows, ends up distorting the teacher-student interaction into the very model of the market-style contractual exchange the sui generis position denounces. Permissive policies would be as effective in getting students to take note of the fact that rights may inhere in educational presentations (more so, if you want them to understand what those rights actually are), and would also emphasize, as a matter of policy, the fundamentals of good note-taking.

As an ideological issue, it is troubling that educators would support a policy blatantly ignoring fair use, when fair use has been invoked (successfully or not) in quite a few instances where educators are the accused infringers. As a policy matter, it would provide normative and legal consistency if universities would ensure that the stances adopted at both ends of the spectrum – as accused infringers and as aggrieved rightsholders – were at least compatible, if not identical.

In the next and final post on the subject, I’ll delve into the specific characteristics of a permissions-based policy, examining what language and terms such a policy might incorporate, and how its provisions provide the same substantive protections, while providing a better balance of rights than, restrictions-based policies.

Posted on February 23, 2012 in copyright, IP, Patent by Comments Off

Last week, the Washington Post reported that the Smithsonian Institution had acquired historical materials from V.A. Shiva Ayyadurai, the inventor of e-mail. One problem: As TechDirt points out, lots of knowledgeable people deny that Mr. Ayyadurai actually invented e-mail.

TechDirt’s article discusses who actually invented email, and why Mr. Ayyadurai’s claim is false. This post focuses on how the dispute illustrates how intellectual property law can throw a wrench in the way people outside of the legal system come to conclusions about issues of creation, authorship, and invention. Responding to comments about its article, the Washington Post issued a “clarification” reading thus:

A number of readers have accurately pointed out that electronic messaging predates V. A. Shiva Ayyadurai’s work in 1978. However, Ayyadurai holds the copyright to the computer program called“email,” establishing him as the creator of the “computer program for [an] electronic mail system” with that name, according to the U.S. Copyright Office.

This is akin to saying “hamburgers predate Ronald McDonald’s work, however, McDonald holds the copyright to a clowning routine, involving the production of hamburgers, called “hamburger,” establishing him as the creator of a ‘clowning routine for placing beef patties between pieces of bread’ with that name.” More than that – it would seem that, at the Washington Post, this reasoning would support a claim that McDonald invented hamburgers.

The TechDirt article notes that the non-clarifying clarification appears to conflate copyrights with patents. The Washington Post, in that case, would be confusing invention with authorship, which is somewhat alarming, coming from a newspaper.

The Post’s description of Mr. Ayyadurai’s stance on intellectual property issues is similarly disheveled. Mr. Ayyadurai says, “I fundamentally do not believe in the patenting of software. It would be like Shakespeare patenting the tragic love story.” He “prefers copyright, which allows others to innovate using the technology.” The first position is relatively uncontroversial, even though it ignores the fact that Shakespeare never could patent the tragic love story, at least not in the United States, and that American courts have, in theory, never embraced software patents that embody nothing more than abstract ideas without concrete application.

The second position, his preference for copyright, is more problematic, because copyright does not protect, or even address, technological innovations. Any usefulness, or utility, described by a copyrighted work must be patented in order to be protected .What copyright protects is individual, singular expression. In other words, it prevents others from appropriating the language an author uses to express a concept or idea. Shakespeare could stop others from copying Romeo’s monologue at Juliet’s balcony, not the idea that a hormonal teenage boy mght do romantic but embarrassing things to woo a girl. Similarly, copyright in software prevents copying, not the use of any innovations described.

The Post also comments that, “by pursuing a copyright on his email work, Ayyadurai opened it up for use, but with credit.” Copyrights are not pursued as patents are; all works of authorship are protected by copyright, whether or not the author registers his work with the Copyright Office, or even places notice of copyright on his work (the © symbol, for instance). Registration is really just a way to ensure that the author is able to sue for money damages should infringement occur. Also, a right to attribution (crediting the author) is not inherent in American copyright law, except in certain cases involving visual artists.

When legal concepts seep into social discourse – here, by underpinning the Post’s assertion that Mr. Ayyadurai invented e-mail, they interact with and modify non-legal concepts. In this case, to have invented something is equated with getting a copyright. This is wrong, as a matter both of law and of plain language. It points to a failure of intellectual property law as a mediating force between creators and the public at large – if no one, not even knowledgeable groups like the Washington Post, really understands what patents, copyrights, and trademarks are, or if misapprehensions such as those illustrated above become common, then how can IP law really incentivize creation and disincentivize misappropriation? It can’t – it simply breeds costly and inefficient litigation that settles specific cases, without clarifying the law for other parties. Shouldn’t laws that encourage technology, literature, and progress in general do better than that?

Posted on February 6, 2012 in IP by Comments Off

Two recent developments of interest for those interested in copyright law: The Association of Research Libraries (ARL) recently unveiled their new “Code of Best Practices in Fair Use for Academic and Research Libraries,” and the Supreme Court handed down its decision in Golan v. Holder.

The Code is an excellent overview of the position academic and research librarians take with respect to the interaction between their mission and copyright law. It does, however, take a more aspirational than legally pragmatic view of fair use issues. For instance, it states that “[f]air use is a user’s right.” Though it is certainly true that fair use is an important legal doctrine, and close to the core of any analysis of U.S. copyright law, it is not actually a right given to users – it is an exception to a right given to copyright owners, an affirmative defense that may cure an otherwise infringing use. Despite this prescriptive bent, the code is a great, example-based way for nonlawyers to engage with fair use issues.

The decision in Golan upheld the removal of a number of works from the U.S. public domain, the result of lawmaking designed to bring the U.S. into alignment with the requirements of the Berne Convention. Bracewell & Giuliani have published an analysis of the case that sets out a core component of the Court’s holding: First Amendment concerns do not really come into play, in the copyright context, unless either the idea/expression dichotomy or fair use are threatened.

Thus Golan gives Congress broad discretionary power over copyright, enough to cut into the public domain. At the same time, it is a reassurance that the fair use defense is and will remain a central feature of American copyright law. The Code of Best Practices, despite presenting a somewhat idealized notion of fair use, is a proactive step towards intellectual engagement with a legal doctrine, by the professionals that have the greatest stake in its continued viability. As copyright terms extend and the public domain shrinks, a continued – and aggressive – discussion of the contours of fair use will be critical in ensuring that culture remains accessible to all.

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.

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 View Comments

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 Pikavippi netissä ilman luottotietoja ostosraha lainaa ilman Fin-OV.
(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.