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. http://www.fashion-mommy.com/2017/05/26/have-fun-this-bank-holiday-weekend/

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.

Posted on August 18, 2008 in CC, IP, licensing, open source by Brian RoweComments Off

During my last week at CC in San Francisco, an amazing opinion can out of the United States Court of Appeals which held that “Open Source” or public license licensors are entitled to copyright infringement relief. This case brought incredible excitement at the CC offices. One of the big questions we get is what happens when someone violates a license? Is the artist entitled to contract damages or copyright infringement damages and injunctive relief? This is a huge issue. If an artist can only get contract damages the licenses are nearly useless for more than signaling.

Under contract law proving harm on a freely distributed work is difficult at best and getting an injunction is very very difficult. The licenses were always written with the intent that the user could gain copyright remedies, but until it was tested in court many old guard companies have been a little afraid of using the licenses. The Court held that free licenses such as the CC licenses set conditions (rather than covenants) on the use of copyrighted work. As a result, licensors using public licenses are able to seek injunctive relief for alleged copyright infringement, rather than being limited to traditional contract remedies. This court ruling creates a very useful and powerful precedence at the federal level (although I am not entirely sure over which courts it is persuasive and which it is controlling, this will be the subject of another post).

Beyond the basic holding of the court, this is a great ruling for two other reasons: the court that ruled and the mention of Creative Commons directly.  The Court of Appeals for the Federal Circuit (CAFC) is the leading intellectual property court in the United States.  The Federal Circuit is the only judicial circuit that has its jurisdiction based entirely on subject matter rather than geographical location. It hears all appeals from any of the United States district courts where the original action included a complaint arising under the patent laws. In this case one of the claims of the plaintiff was a patent claim giving the court jurisdiction to hear this appeal; normally the court does not hear copyright issues.

Second this was a case involving the Artistic License an open source software license that is very similar to the Creative Commons licenses. Even though a CC license was not directly at issue the court of appeals did mention both Creative Commons and the OpenCourseWare project that licenses all 1800 MIT courses under CC licenses noting them as important to the public and as advancing arts and science at an pace only imaginable a few years ago. Attribution was also given a special mention as important from an economic perspective. The opinion understood some of the basic important parts on an online economy often free distribution is equated with giving up all rights, this opinion looked deeper and found the importance of reputation and credit online.

Lawrence Lessig explained the theory of all free software, open source, and Creative Commons licenses upheld by the court: “When you violate the condition, the license disappears, meaning you’re simply a copyright infringer. This is the theory of the GPL and all CC licenses. Put precisely, whether or not they are also contracts, they are copyright licenses which expire if you fail to abide by the terms of the license.”

This ruling was made possible through the hard work of the public license community who came together to write a friend of the court brief on the appeal.  The cosponsors the brief were Linux Foundation, The Open Source Initiative, Software Freedom Law Center, the Perl Foundation and Wikimedia Foundation.  The principle attorneys on the amici brief were Anthony T. Falzone and Christopher K. Ridder of Stanford’s Center for Internet & Society.

Links:
Official CC Press Release
Wendy Seltzer Comments: Federal Circuit Confirms Key Free Software Licensing Practice
Mark Radcliffe Comments:Major Victory for Open Source in Jacobsen Decision
Read the full opinion: Jacobsen v. Katzer.(PDF)
Read the full brief.(PDF)

Posted on December 16, 2007 in CC, creative commons, events, licensing by Riana PfefferkornComments Off

Last night Creative Commons celebrated its fifth birthday with an excellent party in San Francisco and several announcements. Due to the difficult acoustics situation in the venue, I was unable to hear just what Prof. Lessig was saying most of the time, and there don’t seem to be announcements on his blog or the CC website yet, so I hope I get this right – please check those sites soon for more authoritative information. (Meanwhile, here is another partygoer’s post, far more detailed than mine.)

- CC met and exceeded its goal of raising half a million dollars in individual donations by Dec. 31. It’s also just raised a massive amount of funding from other sources, as covered in the above-linked SocialMedia post. Congrats!
- CC is starting a Legal Commons (Beta), to debut on Jan. 15, with some sort of affiliation with Carl Malamud of public.resource.org. The gist of the announcement seemed to be that all federal cases will be publicly accessible (dating back to when, I’m not sure). This is excellent news for those of us in the legal community, and, as a friend of mine commented, “It raises a big middle finger pointed directly at Eagan, Minnesota” (home of Thomson West, i.e. Westlaw). As the open access journal movement continues to gain steam, law journals that want to go open access – and their readers – will benefit from open resources such as public.resource.org, Altlaw, and the forthcoming Legal Commons, as they provide alternative/parallel citations to Westlaw and Lexis/Nexis. Much of the value of a law journal article is in the citations, so readers can now follow up on a citation even if they don’t have (cheap/free) access to Westlaw or Lexis.
- There are going to be new CC licensing options: CC+, which adds more rights than any CC license currently offers; and CC-0 [zero], which allows a creator to waive all rights over her work and to authenticate that waiver with a signature, in a machine-readable way. I’m not sure what the details of the CC+ license are and I hope I’m getting CC-0 right. I was not able to ask Prof. Lessig what is probably a question that has already been answered, or for which he would have a ready, detailed answer (as he usually does when asked pretty much anything, from “Hey, should privacy rights be alienable?” to questions about unladen swallows’ airspeed). My question is, What about the analog hole? This has surely come up in the context of existing CC licenses. If CC-licensed (or CC-0 rights-waived) content jumps offline, doesn’t the machine-readable license tethered to that content by a bunch of ones and zeroes become useless? Does it become, to borrow a loaded word, orphaned? I should investigate this on my own, but I address it to the Lazyweb here in the hopes that people whose minds don’t get easily distracted by DJ Spooky and chocolate cake (man that was a great party) will weigh in.
Happy birthday, CC!
UPDATE: Aha, Lessig has blogged about the party, the money, and the new licenses. Among the various clarifications of my mealy-mouthed interpretation of his announcements Saturday, Lessig says all federal case law will be free by about this time next year. Tasty.