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.

The facts, as best I know, go something like this: about 32 years ago, Seattle artist Jack Mackie used public funds to create the “Dance Steps on Broadway” sculptures. These bronze footsteps in the concrete taught pedestrians how to do dances like the Rhumba and Foxtrot on the sidewalks lining Broadway in Seattle’s Capitol Hill. Mackie showed his litigious side in 1996 when he stopped the Seattle Symphony Orchestra from using an image of his sculpture in a promotional mailer. ) In 1997, Seattle photographer Mike Hipple took a photograph of someone’s feet on Mackie’s sculpture and put it on a stock photograph website for sale. Mackie sent a cease and desist, which Hipple complied with and subsequently destroyed all copies of the contentious photo. However, this action was not enough for Mackie because last year he decided to sue Hipple for copyright infringement over the photograph. http://www.techdirt.com/blog.php?tag=mike+hipple&edition=techdirt Hipple decided to settle rather than fork over the time and money necessary to defend a claim of copyright infringement.

It was unfortunate that Hipple felt compelled to settle. (http://capitolhillseattle.com/2011/06/29/broadway-dance-steps-lawsuit-settled-not-worth-continuing-to-fight)However, it is understandable as Hipple would have been at the mercy of the courts, and thus faced a chance of being sued for the statutory damages. Under the copyright statute 17 USC § 504,(http://www.law.cornell.edu/uscode/uscode17/usc_sec_17_00000504—-000-.html) statutory damages for copyright infringement can range anywhere from $750 to $150,000. I am not aware of Hipple’s personal financial situation, but the chance of having to owe $150,000 is a hard pill to swallow for any artist. (http://hipple-ldf.blogspot.com/2011/06/settlement_29.html)

The unfortunate part is that Hipple stood a fairly strong chance to gain some revolutionary ground in copyright law. Had this claim escalated to litigation, a holding that Hipple’s photograph was transformative would have been groundbreaking. To have the statutory damages cause an artist to shy away from defending the progression of his art directly infringes on the main constitutional policy of copyright law to “promote the progress of …useful arts.” US Constitution, Article I, §8.

In his dissent written for Sony Corp of America v. Universal City Studios, Justice Blackmun stated that “the goal of copyright, is generally furthered by the creation of transformative works.” Hipple’s photograph has transformed Mackie’s sculpture in such a way that does not infringe on the sculpture’s copyright. Hipple’s photograph is a prime example of fair use:

The first factor of fair use requires analysis of the purpose and character of the use. Hipple had placed his photograph on a commercial, stock photograph website, the purpose of his use would be considered commercial by the courts. This factor would weigh in favor of Mackie; however, In Folsom v. Marsh, Justice Story stated that the character of the use should consider the transformation of the art. If one considers the transformative character in the first factor then this factor should actually weigh in favor of Hipple. Hipple’s photograph takes the original sculpture, puts feet on it to show its functional use, and photographs it; thus remixing and totally transforming the sculpture. Hipple’s remix of the sculpture creates a whole new expression in the photograph and that new expression should be protected. In a culture that builds off of itself, where no art is truly original, it is important for artists (like Mackie) to recognize and appreciate when other artists uses their art in a transformative way. If anyone should appreciate the transformative aspect of art building on itself it should be Mackie, as I am certain he was not the artist who created the Foxtrot or the Rhumba. Furthermore, the practice of drawing tutorial footsteps originated in dance studios long before Mackie took the idea to the streets.

When looking at the second factor of fair use, the nature of the copyrighted work, courts  evaluate the value of the materials used and how close that value is to the core of intended copyright protection. The closer the work is to the core values, the more difficult it is to establish fair use. The intent of copyright protection is to foster creative and original creation.  Mackie’s Dance Steps are not exactly novel, as mentioned previously, Mackie’s sculpture is remixed art.  Thus why does his reworking of previous art deserve stifling protection to hinder another artist from doing the same thing?

Further, the court in Campell v Acuff Rose states that the second factor is of less (or even no) importance when assessed in the context of certain transformative uses. Hipple’s photograph is merely taking Mackie’s transformative sculpture, of tutorial dance steps, a step further; thus any “creativity” Mackie had in placing the Dance Steps in concrete should be irrelevant in a fair use analysis. Like the parody protected in Campell, it was necessary for Hipple’s photograph to use Mackie’s sculpture; the feet needed the Dance Steps. By placing the feet in the photograph with the Dance Steps, Hipple transformed a three dimensional sculpture into a two dimensional photograph catching a pair of feet putting the sculpture to the functional use of original dance tutorials. Hipple’s photograph essentially catches the dance steps serving a practical purpose, to teach pedestrians how to do the dances sculpted. Due to this practical use, the Dance Steps on Broadway should receive a very low level of copyright protection, in any. Hipple’s photograph can also be compared to a criticism of Mackie’s sculpture, alluding to its natural predecessor.

The third factor of fair use requires the court to analyze the amount and substantiality of the portion of the copyrighted work taken and whether that amount was reasonable in relation to the purpose of the copying. Mackie filed one registration for the several Dance Steps on Broadway sculptures with the United State Copyright Office. (http://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi?v1=2&ti=1,2&SC=Author&SA=Mackie%2C%20Jack%2C%201946%2D&PID=DrhimXv0qR34QHdIdM7aY3B6hGFO&SEQ=20110801120756&SID=3) (What I believe to be) the infringing photograph uses merely a blurred out portion of one of these sculptures.(http://seattlest.com/2011/07/09/a_quiet_seattle_lawsuit_settlement.php

*All images were added under fair use.  This is a noncomercial, educational post.

More at PK’s website:

Announcing the Winner of the Public Knowledge “Copyright School” Video Challenge!

xposted from BrianRowe.org

“This Video contains content from a Sony ATV Publishing. It is restricted from playback on certain sites. Watch it on youtube”

Sony… what are you thinking?
viral = good
restricted payback /= viral
Okay Go left EMI over this!
By putting restriction on a video like this your are making it tougher for people to give you free press.

Beyond that the video remix/parody here is likely fair use and the restriction equals more then just bad policy it equals censorship.

Thanks Game Girl ESQ for sharing these videos!

For the cover of the album he had someone remix the original cover art to turn it into an 8 bit version.

The original cover art was based on a photo Jay Maisel.  For remixing Jay Maisel’s photo, Andy was hit with a copyright suit asking for $150,00 per infringement plus legal fees. To put this in context the project only cost 2k to license all the music involved and to create the tribute. Andy also explicitly stated that the whole project was being done for fun and that he was not keeping the proceeds:

To create this album, I hope to raise $2,000 to pay royalties, pay the artists, and print CDs. Legally releasing cover songs requires paying mechanical licenses to the song publishers through the Harry Fox Agency, totaling about $420 for every 250 downloads and a $75 processing fee. I’ll be using the remainder to print a very limited run of CDs for Kickstarter backers, and split the rest evenly among the five musicians for their painstaking work. (This is a labor of love for me, so I won’t be keeping a dime.)

This was basically a noncommercial venture made at cost.

When you look at the legal threat asking for 75x the cost of production it is clear that the legal threats were not about a fair license agreement, but about controlling art. When faced with these legal threats Andy decided settled out of court for $32,500 and Andy is “unable to use the artwork again” as part of the settlement. Read that again, this is not a 32k license agreement. This is a 32k penalty, that comes with a censorship agreement. The settlement is 4x the total that was brought in by the kick starter to fund the whole project and is extremely troubling for three reasons:

• The remixed cover art is likely a transformative fair use and should not have to be licensed - Andy does a good job of making the transformative point in is post, and pointing out that fair use.
• Licensing an image for remix is very difficult as there is no compulsory license mechanism. Fred Beneneson makes this point well in -There’s No Such Thing as a Compulsory License for a Photo

• Copyright is being used here as censorship not at a way to encourage new works to be created. This is where I am joining the discussion.

The most disturbing part of Andy’s post was the reaction to the 8 bit art work cover by the photographer:

And it’s worth noting that trying to license the image would have been moot. When asked how much he would’ve charged for a license, Maisel told his lawyer that he would never have granted a license for the pixel art. “He is a purist when it comes to his photography,” his lawyer wrote. “With this in mind, I am certain you can understand that he felt violated to find his image of Miles Davis, one of his most well-known and highly-regarded images, had been pixellated, without his permission, and used in a number of forms including on several websites accessible around the world.” (emphasis added)

Remix art work that is disturbing to the original artist is just the type of art work that needs to be protected by fair use!  Fair use is the codification of the free speech in the copyright act.  Disturbing transformative art work that targets the original work has a stronger fair use claim if it is criticizing the original work, ie parody.  Now this is not a typical case of parody as the remixer here likes the original work, but it bares several similar aspects with regard to how the artist reacts and the art5ist unwillingness to license at any price.

When one can not license to create art work we must have an exception or copyright becomes a blunt instrument of censorship.

This is the third another example of a remix case that has gone horribly wrong for remix artists.

• AP v.  Shepard Fairey for basing his famous Obama Hope poster on a news photo. (Fairey faked evidence harmed the fair use claim)
• JK Rowling  v. RDR – Lexicon ruled not fair use, never appealed

One Thing to learn from all of these cases though is that the law fails to kill remix culture.  Even with Fairey’s bad faith the court pushed for a license over censorship.  In the case of RDR books the unauthorized lexicon is on the book self just in an a shorter version.

In the case of Jay Maisel photo the threats only served to more widely distributed the work he was trying to suppress.  The remix has even been transformed into a vector graphic, enlarged and placed across his home.

Appropriation artist targets Jay Maisel

Thanks to:

Students for Free Culture, for bring this issue up

Jennifer Sanchez, 3L @ Seattle University Law, for legal research for this post.

Closing thought:
“A parodist need not demonstrate that the copyright owner would prohibit the use in order to qualify the copy as fair use under Campell.” Leibovitz v. Paramount Pictures, 137 F. 3d 109, 115, C.A.2 (N.Y.), 1998.

We need the same rights for remixer, even if they love the art they are remixing!

Edit: title changed to Jay Maisel: Copyright Misused as Censorship

No mention of free speech or the value of critical commentary.  Even mash-ups and remixes are slammed. Who wrote this a room full of  RIAA advocates that took the heart of youtube (remix and memes are the heart not some mythical unicorn called purely original content) and reduced that heart to a poorly written law review article footnote…

I would love to see a remix oft his video that takes the copyright trolls and warns them that sending takedowns without considering fair use may cause them to lose fans, with key phrases like the first amendment, free speech, censorship, everything is remix and building on the shoulders of giants.

Shared by Public Knowledge.

Hear is an idea:  How about a remix challenge.  I am willing to offer a free lunch to best remix of this video that incorporates the values of remix and free speech while educating people on there rights.  Upload a remix and tag it with remixCopyrightSchool or post a link in the comments or email me Brian@BrianRowe.org to be considered.  I will judge the results on April 30th and post the winner May 1st.  (If you are outside a city I am in this summer I will send you $  to buy lunch)

Update: the copyright school has a video that tries to explain fair use and it is terrible.  Bad 70′s music. Lots of legal ease. The recommendations are use the public domain or write original content.  Pardoy is mentioned once, but never explained.  It reads like a lawschool text book with no concrete examples.  I the video is design to confuse and encourage people to get a lawyer. It even tells people to go to the copyright office to find the rights holder then go buy insurance and permits.  This is licensing not fair use.

The film is aimed at professional film makers and is useless for 99% of you tube users. (the only bright spot is they mention the American University’ Center for Social Media which has much better resources)

PS I was divided on what to offer as a prize as I do not want to make the challenge commercial and endanger your fair use claim.

The key right is a right of publicity or a commercial endorsement right along the lines of misappropriation.

It troubles me how we are seeing more copyright claims regarding political speech with few free speech counter arguments. If the song were used in a car commercial that is clearly an issue, but political speech should have a stronger free speech argument.

We are creating a dangerous social norm here that limits political speech which is at the core of free speech.

Thanks Denise Crouch for point this out at www.patentlyo.com/patent/2011/04/copyright-versus-free-speech.html

This video reminded me of working in the legal arts clinic my last semester of law school.  Many of the artists that would come to the clinic were doing creative projects that included some fair use or even a lot of fair use.  I wanted to give advice that their work was likely fair use and thus protected 1st Amendment speech, the advice given was often much more pessimistic and even once painfully crushing to the artist.  These are smaller artist that want to spend their days creating, not trying to clear rights on transformative works from rights holder that will not even return their calls. As a lawyers you are trained to minimize risk, which unfortunately is interpreted as avoiding fair use all together. American’s Center for Social Media is trying to change this norm by helping communities create or document their best practices related to fair use and enable artist to use their free speech rights.

On Lessig’s blog: “As mentioned, the Fair Use Project at Stanford’s CIS is representing Shepard Fairey in his suit against the AP. To that end, we’d be grateful for some net-based knowledge. How many photos are there ‘like’ the beautiful photograph that Mannie Garcia took (the one on the left; the one on the right is a CC licensed photo taken by Steve Jurvetson)? Can you send any examples to shep_use@pobox.com?”

Crowd-sourcing a “fair use” case

BoingBoing also has 40 comments already on this request

18 of those students went out on a limb and took an active role in the trial by playing the parts ranging from the attorneys to the plaintiff and the defendant.  Every part in the trial, except the judge which was played by a current Washington State Supreme Court Justice, was acted out by the students.  Here is one of the students giving an opening statement:

More photos of the event can be found at the FLI website.

The students did a great job with the mock trial.  For many of the students this was their first time speaking in front of a large group.  They tackled the challenge with great enthusiasm. A few of the students even did better then my 2L colleges did in their oral arguments last year. I look forward to seeing some of these students practicing in a few years.

Here are some of the details about the trial:

We even created a mocked up blog post for the trial.

The basic facts:

Background on the Defendant, Susan Haskel, and her Blog

“Dance Dance Evolution by PunkGrrrl” is a moderately popular music review blog written by Susan Haskel, a sophomore in chemistry at the University of Washington.   The blog reviews Indy, Emo, Trance, Hip Hop, and Punk music. The basic content of Ms. Haskel’s posts to the blog has been consistent.  Each week she chooses two songs to review.  One song she raves about and the other she rants about.  The blog has been in operation since early 2003 and has been steadily growing in popularity.  Ms. Haskel does not charge for access to the blog, but does have Google Ad words on the site.  Ms. Haskel’s cost to host the blog is less than $150 a year.  The text ads bring in less than $10 per month.  The blog also has a “wish list” where fans can anonymously purchase music-related merchandise from Ms. Haskel.  Fans of her website have purchased two official band T-Shirts and three official band posters from her over the past 2 years.

Defendant’s Review of Plaintiffs’ Songs

On June 16, 2008, Ms. Haskel reviewed two songs: 8 Foot Hammer’s new release Apparition and Front Street Girls’ popular but older hit Twiggy.  In the June 16th blog post, Ms. Haskel added images of each artist from the band’s official website or MySpace page, along with a review of the song.  In Ms. Haskel’s post she quoted three lines (out of 24) from the song Twiggy and followed the quote with a scathing criticism of the lyrics as being “self loathing trash not worthy of a gutter punk’s scorn.”  Under the heading: “Think I am wrong?  Try the songs yourself.” Ms. Haskel also added a link that allowed each reader to download a copy of each song from her server.

The song Twiggy was released in 2001 by Front Street Girls with a copyright notice claiming “All Rights Reserved.”  The song Apparition was released in May of 2008 under a Creative Commons “BY” license and is available for free download at 8 Foot Hammer’s website.

Reaction by Plaintiffs

In the two days following Ms. Haskel’s June 16th post, her blog received five thousand hits.  Ms. Haskel’s Internet Service Provider (ISP) received a takedown request under the Digital Millennium Copyright (DMCA), asking that the music file Twiggy be taken down.  The takedown request came from Artists International Collective (AIC), the rights holders for Front Street Girls’ song Twiggy.  AIC does concert promotion for both Front Street Girls and 8 Foot Hammer. AIC regularly hires a private investigative service to search the web for illegal use of AIC’s songs, and was notified by the private investigator about this posting of Twiggy.  Ms. Haskel’s ISP removed the audio file for Twiggy, but left her blog up.

Copyright Infringement Suits Filed

On July 5, 2008, AIC filed a civil suit in the Western District of Washington claiming copyright infringement of the Front Street Girl’s song Twiggy.  AIC is the owner of the sound recording rights in the copy of Twiggy posted on Ms. Haskel’s website. AIC is asking for statutory damages of $150,000 for copying and distributing the song Twiggy. The Front Street Girls joined the law suit and are claiming infringement of their copyrighted lyrics.
8 Foot Hammer is not part of the law suit.  8 Foot Hammer’s Apparition song is posted under a Creative Commons “BY” license, which allows for anyone to distribute their work for free.  8 Foot Hammer claims that the free distribution helps their popularity and concert attendance.

Huge thank you to all the volunteer legal processionals that helped make this happen:
Megan McCloskey, Genevieve Tietjen, Karen Murray, Rita Amer, Emily Gant, Wilberforce Agyekum, David Estudillo, Manny Borde, Michael Yoder, Mary K. Henderson, AllenBaden, Allen Bruggeman, Jason Naiden, Jennifer Krebs

With Special Thanks to:
Carla C. Lee – Who had the great idea to run an IP mock trial and did an amazing job recruiting people.
Sandy Brown – For doing an amazing job organizing the conference.
Robert Cumbow – For giving the intro the copyright talk and helping with the mock trial.

Here are the source materials from the trial:
FLI 2008 Mock Trial volunteer-packet

FLI 2008 Mock Trial student-role-packet

FLI 2008 Mock Trial all-students-packet

FLI 2008 Mock Trial complaint

FLI 2008 Mock Trial fli_mock_trial_parts

FLI 2008 Mock Trial glossary of terms

FLI 2008 Mock Trial answer

Please feel free to remix, reuse or modify the mock trial materials. They are under a CC-BY license.

FLI Mock Trial 2008 by Future of the Law Institue is licensed under a Creative Commons Attribution 3.0 United States License.
Based on a work at freedomforip.org/2008/12/09/fli-fair-use-mock-trial/.