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

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

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


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

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

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

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

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

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

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

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

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

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

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


Posted on October 26, 2008 in Fair Use, Free Culture by Brian RoweComments Off

Here is my second column on SFFC for the Seattle Univeristy Law Prolific Reporter:

If you have tried to set up a movie viewing at [Seattle University Law] for a student organization lately you have probably run into the new copyright compliance policy.  Before showing a move at the school outside of a structured class you must gain copyright clearance from the copyright owner.  The reason the school is doing this is fear of lawsuit, copyright comes with stiff statutory damages, an unauthorized public viewing of a copyrighted could come with penalties up to $150,000. What has been the effect of this policy; most student organizations have stopped showing films due the the transactional cost of having to clear rights.  The time need to clear rights can take hour or days, time that is better spent studying for evidence or legal writing.

Is this policy good for student orgs? No, it makes it tougher for orgs to share information or rally students around a cause.  Is this good for film makers?  No less students see their work and less people will hear their message. Is this good for the rights holder? No, rights holders are not likely make any money off student org that have an annual budget of $200. Simply put the blanket policy is not good for anyone.

I am not one to complain, unless I am willing to change things.  The school should consider implementing a fair use policy related to student orgs use of films.  Fair use is the part of the copyright act that protects users from infringement claims. Another way to look at fair use is the codification of the first amendment in the copyright act. The use of a film for educational, noncommercial purposes in a way that promotes a public interest cause is very likely considered fair use. Here is a first draft of a suggested policy:

Student orgs may show films as long as they meet the following criteria:
1.  The film showing must be noncommercial in nature: no charging admission, taking donations or exchanging money in any way.
2.  The film showing must be for an educational purposes that is directly related the the student orgs mission.
3.  The film showing must not take place if the film are currently being shown in a commercial venue within 20 miles of Seattle.
4.  The film showing should be accompanied by other educational activities, such as a discussion of the films subject mater and how it relates the the student orgs mission.

If you have interest in learning more about how copyright creates problems Students for Free Culture’s showing of:

GOOD COPY BAD COPY - a documentary about the current state of copyright and culture.
The documentary features interviews with many people with various perspectives on copyright, including copyright lawyers, producers, artists and even the MPAA.  The point of the documentary is the thesis that “creativity itself is on the line” and that a balance needs to be struck, or that there is a conflict, between protecting the right of those who own intellectual property and the rights of future generations to create. The showing is Tuesday October 28th at 7:30pm in Room: C7.

PS: I did not have clear rights on Good Copy Bad Copy the film was released under a Creative Commons Attribution-NonCommercial license which encourages public use.  To read more about fair use and creative commons follow my blog at and join Student for Free Culture.  If we do not use our rights they are lost.

Attribution: The description of the documentary was remixed from Wikipedia and the image was taken from the intro screen of the film.

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:

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 July 30, 2008 in civil disobedience, copyfight, copyright, Fair Use, Free Culture, free music, IP, music, Quote by Sarah DaviesComments Off

Before the free culture movement even existed:

Mockingbirds are the true artists of the bird kingdom. Which is to say, although they’re born with a song of their own, an innate riff that happens to be one of the most versatile of all ornithological expressions, mockingbirds aren’t content to merely play the hand that is dealt them. Like all artists, they are out to rearrange reality. Innovative, willful, daring, not bound by the rules to which others may blindly adhere, the mockingbird collects snatches of birdsong from this tree and that field, appropriates them, places them in new and unexpected contexts, recreates the world from the world. For example, a mockingbird in South Carolina was heard to bend the songs of thirty-two different kinds of birds into a ten-minute performance, a virtuoso display that served no practical purpose, falling, therefore, into the realm of pure art.

– Tom Robbins, Skinny Legs and All, 1990

Having read that, can you honestly feel that the law ought to ban outright artists like Girl Talk and sound advice? We are strangling the innovative, willful, daring mockingbirds of our time.

Crossposted to Civil Disobedient

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:

Posted on November 1, 2007 in Free Culture, Google, lessig, microsoft, Seattle by Brian RoweComments Off

Professor Lessig, an inspiration for Students for Free Culture, is Speaking at University of Washington

Title: Is Google (2008) Microsoft (1998)?
Date: Nov . 2, 2007
Time: 7:00 PM
Location: in room 130 of Kane Hall.
Cost: Free (tickets available at UW book store)

Lawrence Lessig is a Professor of Law at Stanford Law School and founder of the school’s Center for Internet and Society. Prior to joining the Stanford faculty, he was the Berkman Professor of Law at Harvard Law School, and a Professor at the University of Chicago. He clerked for Judge Richard Posner on the 7th Circuit Court of Appeals and Justice Antonin Scalia on the United States Supreme Court.

Professor Lessig represented web site operator Eric Eldred in the ground-breaking case Eldred v. Ashcroft, a challenge to the 1998 Sonny Bono Copyright Term Extension Act.

Professor Lessig is the author of Free Culture (2004), The Future of Ideas (2001) and Code and Other Laws of Cyberspace (1999). He chairs the Creative Commons project, and serves on the board of the Free Software Foundation, the Electronic Frontier Foundation, the Public Library of Science, and Public Knowledge. He is also a columnist for Wired.

If you are interested in corruption scholarship or the copyfight I would recommended reading Lessig’s blog.

Related Links:
More information on the talk
Students for Free Culture

Posted on October 12, 2007 in Free Culture, IP, RIAA, Seattle PI, Students for freeculture by Brian RoweComments Off

The Seattle PI made two blog posts regarding Seattle Student for Free Culture last week. The discussion related to the recent RIAA suits and the local copyfight at Seattle University School of Law and at University of Washington. It appears that SU Law is acting to Free Culture while UW has not taken action yet. This is surprising considering both the RIAA suits at UW and UW’s recent speaker of Brewster Kahle and up coming speech from Larry Lessig. Where are the librarians and the Ischool in the fight to open up access to all knowledge?

I recommend checking out the articles, I will be reposting here the comment we made on how to get involved in the copyfight in Seattle.

Original article about Seattle Students for Free Culture

Follow up article with interviews with Brian Rowe and Scott Shawcroft

Disclosure: I am the student leader behind SFFC at Seattle Univerity Law and a Graduate of University of Washington.

Posted on March 8, 2007 in CLE, Free Culture, IP, IPLS, law, NPO, Seattle University, Second Life, Social Justice, video games by Brian RoweComments Off

Last year, before becoming a student at Seattle University, I attended the Intellectual Property Law Society (IPLS) sponsored CLE on the intersection of Antitrust and IP. I was very impressed by the panel of speakers that included Daniel Ravicher of Public Patent and Joe Miller of Lewis and Clark’s Law School who challenged the assumptions put forward by many of the other pro-corporate-interest speakers by adding a voice for Social Justice that included alternative views of IP and the social harms of some of the policies being discussed.

This year I attended the IPLS sponsored CLE on video games and IP law, and was disappointed that the CLE did not allocate time to social justice issues related to the topic at hand. The CLE covered several topics that have a potential social justice impact such as user-owned IP in massive multilayer online games, the rating of video games, and file-sharing via peer to peer networks. I was hopping to see at least one speaker address these issues from a user’s perspective.

Unfortunately, the CLE not only ignored social justice issues but also artificially portrayed one on the most influential online communities for social justice movements, Second Life. Second Life was painted as a shallow chat and cybersex service that has squandered its IP rights by allowing its users to retain copyright on everything they create. This depiction failed to mention of some of the extremely positive aspects of Second Life. Second Life has become an online community for both academics and nonprofits who wish to reach a wider audience. This last year I attended a lecture in Second Life sponsored by Harvard’s Law School as part of their Law in the Court of Public Opinion extensions class. The lecture was free and anyone could register and participate regardless economic standing or geographic location.

On the nonprofit front, Second Life has become a gathering place for organization like the Electronic Frontier Foundation and Creative Commons who advocate for users rights online and alternatives to traditional copyright. Their events last year included an interview with the highly esteemed Seventh Circuit Judge Richard Posner that respectfully challenged some of his proposition in his recent book “Not a Suicide Pact : The Constitution in a Time of National Emergency”. Organizations like UNICEF and Global Kids have reached out to users in Teen Second Life as a vehicle to involve teens in community outreach activism on global and local issues.

I hope next year’s CLE on IP returns to the thoughtful dialogue about social justice that brought me to SU. To help realize this goal I will be starting a chapter of the socially conscious IP student organization Free Culture. If you have interest in helping balance the prospective on IP and Social Justice that Seattle University puts forward, please feel free to contact me, [email protected] or [email protected].

Thank you,

Brian Rowe
1L Seattle University

PS this Letter is in the Public Domain, No copyright has been reserved.