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.

Posted on September 24, 2008 in Free Culture, IP, Students for Free Culture by Brian RoweComments Off

Tim Hwang of Harvard Free Culture has a very interesting piece up on his blog about the future of Students for Free Culture.  Here is a short part of it on the possible national agenda:

Here are some national projects that I’d love to see Free Culture pursue that haven’t seen much attention.

1) Create A Preemptive Ultimatum Around Creative Works

Sure, we might not agree on the minuate of fair use, but everyone seems to agree that Girl Talk’s work should be defended. Same goes for other artists experimenting with the same methods that threaten the current mode of fair use. Free Culture should create a public list of people and works who are affirmatively protected by the threat of activism. Any organization that goes after them to shut down what is obviously a huge creative boon from remixing and reuse, FC can promise to retaliate against. FC will seed torrents, mass distribute copies, encourage further remixing, and bring in the involvement of litigators working in the space. In other words, we will be a major pain in the ass.

2) Connect With the Development Community

The development community has been wrangling increasingly with Free Culture issues, and there’s a host of natural allies to bring into a project. Many of these, particularly the UAEM community, have demonstrated the efficacy of student activists working in the university space to promote more sensible IP frameworks for innovation. As Benkler has pointed out, Free Culture is far from being limited to a first world issue: access to medicine, technology, and know-how in the developing world is increasingly dependent on an obsolete system of IP that needs resolving. However, no large student group currently acts broadly in the space, though FC is ideally suited to do such a thing.

3) Encourage Open Access Nationally

With the passing of the Open Access resolution at Harvard and efforts at MIT and Stanford, the space now exists for IP freedom activists to begin a full-scale mobilization to promote better public access to educational materials around the country. Many of the technical tools and organizational models to implement this are now being tested in these universities, and the sharing of these practices among student activists massively lowers the cost to universities who are trying to find their way with Open Access. Shooting towards an eventual goal of creating a nationally linked repository of Open Access materials from colleges around the country seems like an obvious resource to aim to create.

4) Promote Data Portability

Free and Open Source Software has been a broadly shared axe to grind for some time now with a bunch of organizations, but it seems like structurally, the salient issue in coming years won’t be merely making code free, but to advocate for data being portable. As the market largely moves towards tethered devices and thin client models, the question of freedom doesn’t turn so much on whether or not a particular software is free or open source — after all Google mostly doesn’t care if you want to go in and see how things work. All the forward-thinking tech company wants is for A) that product to be used, even at the cost of offering it for free, and B) that the data and hosting is kept with them. The real threat to freedom and innovation — as Zittrain’s pointed out — is that data is locked up remotely and that software on platforms increasingly becomes service. What does it mean when Apple can remotely shut down products, or can make movement to another service essentially impossible by raising the barriers to transferring personal information? At least within FC, no one’s been pushing hard on this point, and I think it’s an incredibly salient issue for the community to get involved in.

I strongly agree with basic agenda items of Fair Use, Open Access, Connecting with the Development Community and Data Portability.  But what I like most about this agenda is that it is proactive, SFFC needs to be active in defining what Free Culture means and what standards are in the information age. We also need to reach out beyond the rich west to include more people in the FC movement.

Read more at:
http://www.fabulousbitches.org/post/51541293/carving-out-a-free-culture-agenda

PS I need to write a post on Data Portability and a right to have your data deleted.  Data portability is essential for creating a landscape where competition can thrive, and a deletion right may be important in a post privacy era. I strongly support data portability, and am deeply conflicted on a deletion right.

Posted on August 28, 2008 in IP, open access, SPARC, Students for Free Culture by Brian RoweComments Off

SPARC (the Scholarly Publishing and Academic Resources Coalition), Students for FreeCulture, and the Public Library of Science (PLoS) have jointly announced the first international Open Access Day just 2 days after the National Students for Free Culture Conference in Berkley.

Open Access Day will invite researchers, educators, librarians, students, and the public to participate in live, worldwide broadcasts of events. In North America, events will be held at 7:00 PM (Eastern) and 7:00 PM (Pacific) and feature appearances from:

Sir Richard Roberts, Ph.D., F.R.S.
Joint winner of the Nobel Prize in Physiology or Medicine 1993 for discovering split genes and RNA splicing, one of 26 Nobel Prize-winners to sign the Open Letter to U.S. Congress in support of taxpayer access to publicly funded research, and currently at New England Biolabs, USA. [7PM Eastern]

Philip E. Bourne, Ph.D.
Philip E. Bourne is the Founding Editor-in-Chief of PLoS Computational Biology and the author of the popular PLoS Computational Biology Ten Simple Rules Series. He is Professor in the Skaggs School of Pharmacy and Pharmaceutical Sciences at the University of California San Diego, Associate Director of the RCSB Protein Data Bank, Senior Advisor to the San Diego Supercomputer Center, an Adjunct Professor at the Burnham Institute, and Co-Founder of SciVee. [7PM Pacific]

Librarians and student organizers are invited to host meetings around the broadcast. To see a list of participating campuses and to sign up, visit the Open Access Day Web site at http://www.openaccessday.org. Additional international events will be announced shortly.

Read more in the full press release.

Posted on December 27, 2007 in Free Culture, open access, SPARC, Students for Free Culture by Brian RoweComments Off

SPARC has started their own Innovator Awards to recognize students who are helping move scholarly communication towards an open access model. SPARC, Scholarly Publishing and Academic Resources Coalition, is an international alliance of academic and research libraries working to correct imbalances in the scholarly publishing system. This years SPARC awards were heavily pervaded by students in the Free Culture movement.

Here are this years winners:


* “The Technologist,” Benjamin Mako Hill, Graduate of the MIT Media Lab, current Researcher at the Sloan School of Management at MIT, Fellow in the MIT Center for Future Civic Media, and engineer of the 2007 “Overprice Tags” project at the MIT library.

* “The Professional,” Gavin Baker. Political Studies graduate of the University of Florida, Open Access Director for Students for Free Culture, and co-mastermind of the National Day of Action for Open Access, February 2007.

* “The Politician,” Nick Shockey. Current undergraduate and Student Senator at Trinity University in San Antonio and author of the second-ever student senate resolution in favor of public access to publicly funded research results.

* “The Diplomat,” Elizabeth Stark. Student of Law at Harvard University, Affiliate of the Berkman Center for Internet and Society, founder of Harvard Free Culture, and architect of one of the first student free thesis repositories.

* “The Evangelist,” Nelson Pavlosky. Law student at George Mason University, co-founder of Students for Free Culture, and ally of the Student Global AIDS Campaign and Universities Allied for Essential Medicines.

Read the full Story at SPARC:
http://www.arl.org/sparc/innovator/students.html

Posted on December 5, 2007 in Seattle University, SFFC, Students for Free Culture by Brian RoweComments Off

The SU Law Students for Free Culture (SFFC) chapter has been actively pursuing official status for almost a year. We started recruiting last spring at the incoming 1L student organization fair and continued the process throughout this fall. We currently have 15 members and 4 active board members. This last week we received official status as a student organization. This makes Seattle University Law one of a small group of law schools that officially support the free culture movement. Most other SFFC chapters are in undergrad institutions.

This official status is important for three reasons:

First it demonstrates the schools involvement on social justice issues that are unique to the Information Age.

Second the official status allows us a greater opportunity to voice our concerns on issues of relevance to legal scholarship and open access.

Third the official status will allow us to use the law school to host forums or educational events around issues like fair use, privacy and ethics, maybe even a Continuing Legal Education Seminar.

I would like to give strong thanks to other founding board members who spent serious time and effort drafting our charter, our mission statement, and navigating the politics of the Student Bar Association (SBA).
Anne Marie Marra 2L
Jessica Creager 2L
Shane Robinson 3L

Our Official Mission Statement:

Seattle University Law Students for Free Culture aim to place the tools of creation, distribution, communication and collaboration, teaching and learning into the hands of everyone through the democratizing power of digital technology and the Internet.

In promoting a culture of participation, accompanied with such technology, a new paradigm of creation is possible, where anyone can succeed on their merit.

Our goals are to:

  • seek a balance of intellectual property rights, where other rights of the individual and social policy are not encroached by trends to over-expand intellectual property rights.
  • bring attention to how the digital industry ironically clings to obsolete modes of distribution through bad legislation, and call out repressive legislation that stifles innovation.
  • oppose monitoring technology that prevents users from exercising dominion and control over their privately owned hardware, and their own intellectual property.
  • seize opportunities presented by the Internet and digital technology before such opportunities become irretrievable.

The future is in our hands; we choose to promote a technological and cultural movement to defend the digital commons.

There are several local organizations that are actively fighting against draconian copyright, patent and trade secret laws to restore some balance to the system.

Students for Free Culture at Seattle University School of Law

SU Law is dedicated to social justice and the accessibility of the law to everyone in society. The local free culture chapter is working to bring a social justice and public interest perspective to intellectual property issues through education, outreach and activism.
Contact: Roweb@seattleu.edu

Freedom for IP

Freedom for IP is a small volunteer-run organization that works to limit intellectual property whenever it comes into conflict with the public good or Human Rights. They advocate for taking action by freeing ones own content, using freedom of speech and fair use and sometimes even civil disobedience to change the system.
Contact: Brian@freedomforip.org

Technology and Liberty Project at ACLU of Washington

The Technology and Liberty Project aims to ensure that government and business respect civil liberties principles in decisions made about technology and privacy.

Contact: blogs.aclu-wa.org/tlp

CopyNight

CopyNight is a monthly social gathering of people nationwide interested in restoring balance in copyright law. We meet over drinks once a month on Capitol Hill in Seattle to discuss new developments and build social ties between artists, engineers, filmmakers, academics, lawyers, and many others.

Contact: www.copynight.org

If you want to be involved in the copyfight to please join the above organizations and start standing up for the rights of everyone against monopolistic interests that are abusing the rule of law, slowing innovation and quashing criticism.

-Brian Rowe
2L Seattle University Law
Founder Freedom for IP