Lecture Notes Considered Infringement

I Don't Believe in Imaginary Property writes "According to a new lawsuit, taking notes in class is copyright infringement. Of course, it's not quite that simple. The professor is partnered with an E-book maker that wants to sell the material themselves, and the people taking notes pay students to take good ones, then sell copies to everyone else. But that just means that the case will hinge upon whether or not lecture notes are fair use. Either way, I wonder how long it will be before you will have to sign a EULA whenever you walk into class"

Comments

Relevant

[Anonymous Coward]

Obligatory: http://www.gnu.org/philosophy/right-to-read.html

Re:Relevant

[LrdDimwit]

Amen to that. Fortunately, this guy's lawsuit is going nowhere (note he's not a legal professor). The entire point of the notes is to take down the ideas contained in the lecture -- indeed, the point of the lecture itself is to transmit ideas! Unfortunately for this professor, ideas are not -- and never were -- copyrightable. Indeed, nobody would ever be able to make a new book, or movie, or song, were this not so; everyone borrows ideas, because at a certain fundamental level all stories are fundamentally the same. But worse, if ideas were copyrightable, then copyright becomes a kind of thoughtcrime.

What you're not allowed to do is copy the way those ideas are expressed; selling transcripts of the professor's lectures would be a no-no. But assuming these notes are actual summaries of the concepts presented in class, this company is free and clear.

Re:Relevant

[CityZen]

I was just thinking that professors should apply copyleft or perhaps GPL to their lectures.

After all, if he or she is a REAL professor, he or she will want the knowledge to be spread & shared as much as possible.

Re:Relevant

[twistedsymphony]

Even if we were to make the jump that the professor's idea's are copywriteable then I'd have to ask the question of what exactly you're paying for when you pay your tuition?

Theoretically aren't your paying for the transmittal and indefinite future use of the ideas discussed in the class? If not then what exactly are your tuition bills paying for?

Re:Relevant

[cattywhumpus]

No the lecture notes are NOT fair use. They're a completely new work and the copyright is owned by the student who took them. Remember, it's not the facts that can be copyrighted, it's the expression. Now if a court reporter took down the lecture verbatim, or someone recorded it, you might be able to make a case. But notes? No way. No how.

Re:Relevant

[Z00L00K]

And even recording a lecture may actually let the copyright fall on the recording party and not the lecturer.

Go figure if you are recording a nature event like a bird - does the copyright on that movie go to you or to the bird?

Or if you make a movie of some people doing a demonstration. Is it you or the people that get the copyright on that work?

And don't forget that a lecture is fact filtered through the lecturer's view. And a recording will only catch that view from the view that the recording position will provide. This means that any different angle or position in the lecturing hall will provide a different view and therefore be a different work.

And unless it's explicitly forbidden to record a lecture it will therefore mean that you may record it. But some may argue that it should be the other way around - you may never be able or allowed to record anything without a written permission - which means that we are going into a dark future. Owning a pen or pencil will be licensed, knowing how to read is controlled by the government or the big corporations. Thought police everywhere.

The "Freedom to Read (watch)" should be derived of the "Freedom of Speech".

Re:Relevant

[tepples]

And even recording a lecture may actually let the copyright fall on the recording party and not the lecturer. That depends on the nature of authorship, which in the United States appears to be defined by case law. The person who fixes a live performance such a a lecture in a tangible medium may have a share of the authorship. But there is a concept of "neighboring rights" for performances, implemented in the United States through rules about unauthorized fixation. The personality rights laws of the several states cover the cases where that doesn't apply, as do the private real property laws of the several states when a property owner bans recording devices.

Go figure if you are recording a nature event like a bird - does the copyright on that movie go to you or to the bird? I seem to remember an article about copyright in paintings by a chimpanzee. But I can't seem to find it in the noise results that Google returns, which mention copyright only in the sense of "this article is subject to copyright" rather than "this article is about copyright".

Correction

[Anonymous Coward]

Taking lecture notes isn't what's claimed to be copyright infringement, only re-selling the notes for a profit. Fair use does not provide for commercial reproduction.

Re:Correction

[moderatorrater]

Fair use does allow for certain things to be reproduced commercially. How do you write an analysis of Shakespeare (a derived work that's covered by Fair Use, btw) without deriving it somewhat from Shakespeare? Cliff Notes are a commercial reproduction of the main points of the story; isn't that what lecture notes are?

Furthermore, the university should be protecting these students by threatening to end the contract. If the book maker's going to be anal about this, they're going to be anal about something else that's important to the university. Also, an attack on the university's students should be viewed as an attack on the university itself. Every other college should be avoiding these guys like the plague too.

Re:Correction

[Planesdragon]

It is only an affirmative defense for a specific case Actually, four specific cases. In the original law, only three -- journalism, review, and education. The fourth, pardoy, was added by way of judicial interpretation of the unexplict statutes and underlying principles.

It is not about whether all lecture notes will suddenly be found to be fair use. That is impossible by definition. Well, only in the sense that a lecture is usually not set in a fixed form, and so isn't covered by copyright in the form usually presented to students.

Re:Correction

[Anonymous Coward]

*Sigh*

The meaning of fair use is as confused here as the meaning of Godwin's Law. Fair use is a defense, not a right. No material is fair use. That material is only used in a way where if it were to be challenged in a lawsuit, a fair use defense would prevail. How the material is used is just as important as what type of material it is. This is why you can't make a blanket protection with a fair use defense. For those who want a blanket protection, it is called public domain, GFDL, or CCL.

Re:Correction

[gujo-odori]

Movie-goers who take detailed notes during a movie to later re-sell them for a profit are usually called "reviewers." A studio wouldn't have an ice cube's chance in hell of winning a lawsuit against a reviewer who published a movie review. Both the reviewer and the paper profit, and that's totally fair. There's nothing wrong with selling your lecture notes, either. Moreover, in every class I took in college, the lecture was sufficiently derived from the course textbook (none of which were written by the prof teaching the course) that there's no reasonable way a claim of infringement could stand up in court.

Re:Correction

[Original Replica]

the university should be protecting these students by threatening to end the contract.

Why do university students always forget that the professors are their employees? "The university" doesn't have to do jack, the students need to all drop all of that professors classes. It works, at my alma mater I saw a professor let go when his classes dropped to zero enrollment because he had sufficiently pissed off his students. I'm all for professors making a nice buck on the side, publishing or consulting or researching, right up until it starts to effect the quality of work that makes them professors; teaching the students.

Re:Correction

[DustyShadow]

Fair use is only a defense because it is a right. Actually there is a big debate over whether Fair Use is actually a right. On one side, you have the argument that you can't invoke fair use unless you have infringed and thus it is only a defense. On the other, you have that argument that because cases like Eldred v. Ashcroft held that fair use is the Copyright Act's way of protecting Free Speech rights, then fair use is also a right.

I unfortunately think it falls closer to the defense realm. I don't like that though.

Re:Correction

[GeffDE]

I am no lawyer, and definitely not a judge, but the applicable section of the Copyright Act clearly states

...the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

That makes it pretty clear that fair use of a copyrighted work is a right because it protects the fair user from being held liable for copyright infringement. Naturally, fair use is also a defense against a claim of copyright infringement. My point in the previous post, which I suppose could have been more clearly indicated with this example, was that if you are sued for copyright infringement, you will not be held liable for infringement if you can demonstrate fair use (using fair use as a defense) because you have the right to fairly use copyrighted works, as explained in the above passage of the Copyright Act.

Also, you invoke fair use as a defense when accused of infringing; the Copyright Act makes it clear that fair use does not constitute an infringement. The Copyright Act gave a number of exclusive rights to the holder of a copyright; the fair use doctrine says that those exclusive rights cannot infringe every citizen's right to use the copyright works for "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research." So, I don't know who came up with the idea that fair use is only a defense because you only invoke it when accusing of infringing, but it's stupid. Additionally, you only invoke your first amendment rights when accused of breaking the law; does that mean that the rights guaranteed by the first amendment are only defenses?

Re:Correction

[Anonymous Coward]

THANK YOU for correcting the mistakes in this forum about fair use not being a right. When I see posts like that it makes me crazy about how uninformed people are, but I was at work and couldn't post back.

But unfortunately you made some errors in your explanation as well, so please indulge me while I make some slight refinements to your argument and corrections.

There is no question that fair use is a right. Just because it is also a legal defense doesn't matter - the two are not mutually exclusive.

Hey, Slashdot dummies who never got any civics education in school? Here is the basic primer - play along now...

The whole premise behind US government is that every person is endowed by their creator with inalienable rights. In order to protect these rights, citizens consent to the government placing a few restrictions on people - the whole purpose of the restrictions is to stop people using their rights in a way that takes away other people's rights. It's supposed to be a balancing act.

So for example, my creator gave me the ability (the "right") to swing my arm around with my fist closed. There are a few laws that reasonably limit that, though. The essence of the state of those laws is as if they are saying, okay, swing your arms with closed fists all you like. We'll even specifically condone doing so and clobbering someone else's head under controlled circumstances (boxing). Otherwise, make sure when you're swinging you don't crash your fist into somone else's head, or property.

So you wanna go out into a field and swing your arms when nobody is nearby? Of course, you have that right. Want to do so in your house, for ten hours straight - and even clobber your own furniture? Sure, you were born with that right. But we, the government that you created, are going to stop you if your arm swinging hurts someone else ... and only then.

ALL US laws are like that - every single one. So when you think about the law, never talk about government giving people rights - under the US theory, that's impossible. You're born with 100% of the rights that you are capable of exercising.

Instead, start from the premise that you have the right to do ANYTHING you want ... unless for some reason because you could hurt other people, there is some limited government law slightly restricting your right.

So, repeat after me - fair use is a right. It's also a defense in copyright lawsuits (the nature of the defense is more accurately stated along the lines of "But, hey! I have a defense! I was exercising my rights!") Fair use is a right. There are a few restrictions on your originally 100% fair use rights, meant to protect copyright holders from being harmed by you. Those restrictions, and the way your fair use rights work in relation to those restrictions -- are described in part in copyright statutes.

But there are reams of case law stating specifically that you have way many more fair use rights than are described in the statutes. Which of course is as it should be and only makes sense. You start from the premise that you have 100% ... and then check to make sure whether or not or how much your rights were whittled down a little.

Okay, get it? Class dismissed now? You have rights. Use them freely. God wanted you to do so. That's why she made you the way you are. The only thing governments can do is take away rights. Hopefully, in limited fashion.

And don't let uneducated Slashdotters (or, in all likelihood, industry trolls) ever tell you otherwise.

Ridiculous

[Princess Aurora]

This is pretty ridiculous. If the professor wants to protect his copyright, then he shouldn't be putting the material up on the blackboard for everyone to freely see.

Last time I checked, the point of going to class is to get notes and learn new material. If you are forbidden to take notes, why go? All the material from any class can be found in a textbook somewhere--and most college students can read on their own. Basically, the professor is telling you "Just buy my book," at which point the lectures themselves become almost pointless--one can stay home and just read the book, since you can't write anything down on your own, your lecture notes are the book. Furthermore, if you can't take your own notes, why pay for the class? Textbooks are cheap. Just buy it and read it.

This professor is probably tenured, which is fortunate for him, since pulling a stunt like this is probably a one-way track to getting denied tenure.

Re:Ridiculous

[The -e**(i*pi)]

In my school, North Carolina State University, you can be kicked out for preparing abstracts/transcripts of lectures (sounds like notes to me, and since i'm not the judge they can pick what it means) to sell to other students.

http://www.ncsu.edu/stud_affairs/osc/AIpage/cheatingpolicy.html

this is clear infringement for commercial gain

[pbhj]

RTFA, please.

The first sentence of the abstract is plain wrong.

Taking notes from the lecturer on a course you've paid for (or the tax payer, depending on your location, has) is fine. You create a derivative of the lecturers copyright but it's either allowed contractually or fair use for educational purposes (again depending on jurisdiction).

Making a "slavish" copy of the lecturers notes and then selling them is not allowed and impinges on the ability of the lecturer to sell his own work for publication. In this case I don't think it's just infringement it's also immoral.

It's pretty straight forward.

Now if the company were giving away copies of the notes then it might be interesting ...

Re:Fair use

[hcmtnbiker]

Not exactly....

Copyright Title 17 Chapter 1 Section 107:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. Classroom notes easily fall under that. If someone didnt show up for a class your notes could effectively teach them the material. Or it could fall under research which you are sharing with the fellow student. It will be fun to see how this plays out, but I cannot imagine the teacher winning this case.

"professor's copyrighted lectures"

[capologist]

Why does a professor have a copyright on his lectures, anyway?

When I was working for a software developer and wrote code, I didn't get a copyright on the code. My employer owns the code the code that I wrote.

The same way my employer paid me to create code, the school pays the professor to create and deliver lectures.

If anybody owns a copyright on those lectures, shouldn't it be the school?

Re:"professor's copyrighted lectures"

[proxima]

Why does a professor have a copyright on his lectures, anyway?

If anybody owns a copyright on those lectures, shouldn't it be the school?

This is an interesting difference between academia and the business (i.e. "real") world. I suspect that it comes from a combination of considerations and cultural aspects:

1.) Professors do research, and submit that research to journals for publication. Those journals often require the professor to sign over the copyright of the paper before publication. It's easier for professors to do that if they have the copyright in the first place.

2.) What about lectures? Some (a few) professors make a ton of money (or little money and a lot of recognition, in some cases) by selling their books. These books start out as lecture notes, typically, especially at the graduate level. Professor's salaries don't vary that much, so this is one way in which the better/harder working/better known professors can earn relatively more pay. That keeps them at a university that can't afford to pay them what they'd get if they quit and just published their textbooks, which is good for the university.

3.) A big consideration is probably the culture that a professor's work is not so much for the university itself, in the sense that professors move between universities all the time and take their research/lab/lecture notes with them. Would you honestly expect professors to have to somehow re-write their lecture notes upon moving to a different university? It just doesn't happen.

4.) Tenured faculty have a fair bit of power over university policies, if they collectively put their minds to something. While works created by staff and non-faculty might be the automatic property of the university, faculty (in the U.S. at least) typically get the copyright for much of what they create.

It's tempting to draw parallels between programming and research/lecture notes. The cultures, though, are quite different. In general, academics share their resources pretty openly, at least up until the point it becomes a textbook. To the extent that academics write code, it often isn't under an explicit license at all (which can be inconvenient if you want to properly include it in something for redistribution).

Patents are another issue altogether, and one where the university stands to make a great deal of money. I'm not at all familiar with the general breakdown of rights about those, but it seems that both the inventors and the university get a cut in many cases.

So what's up with this professor? It sounds like somebody is peeved that his students aren't attending class and would rather pay somebody to come in and take notes for them. Many good professors do the exact opposite and post class notes online, though they may not include quite everything that's worth getting from a lecture.

If notes were a substitute for a good lecture, most of us would learn by buying the best notes from the best professor in the world on a subject (which is only sometimes available as a textbook). On the other hand, a bad lecture is worse than a decent set of written notes. The solution is not to sue them, but to improve your lectures!

Re:Rights to shakespear

[AnyoneEB]

No, in fact, all of his works can be found on Project Gutenberg, although you may notice a good number of minor differences from the versions you have seen before because any published edition has copyrighted touch-ups to the spelling and formatting.

Re:Rights to shakespear

[Anonymous Coward]

Shakespeare's ghost does. Under new copyright laws, copyright is the creator's life + 50 years + creator's afterlife.

Got a couple defenses here for the defendant

[DustyShadow]

TALA (This ain't legal advice)

Defense #1: The work must be fixed for this dude to claim copyright.

17 USC 102(a) - "Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression . . ."

17 USC 101 - ". . . A work is âoecreatedâ when it is fixed in a copy or phonorecord for the first time . . .

A work is âoefixedâ in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. . . " So. . . If the professor is not either reading from a pre-prepared script or recording his lecture, he cannot claim copyright in it in the first place. This is pretty basic copyright law that students learn in the first day of a copyright course. I'm sure that his lecture is read from his notes but it is unlikely that it is read directly from it and I highly doubt he is recording it (which could be a way of fixing it that would give him copyright in it, assuming that it is copyrightable material.).

Defense #2: Dude probably owns no copyright even if it is fixed.

Facts are not copyrightable. This is even more basic shit that has been said by many courts including the Supreme Court. Assuming this guy is teaching a standard subject, the things he teaches are not owned by him. He cannot seriously try to claim copyright in the history of the United States or the Pythagorean Theorem (I haven't RTFA so I don't know what he teaches). The only possibility for a copyright here is what is called a "thin copyright" which would be in his "organization of the facts." So he's gotta prove that the notes taken by these students are organized EXACTLY as he organized them. And that may not even work. If it is some basic subject where the organization of teaching it is basic, (such as any professor teaching history would start from early then move to later, or any math professor starts at 1+1 then moves to 1+2) then the organization would be so basic as to not warrant any copyright.

So my point is: defendant's motion for summary judgment that cites heavily to Feist Publications v. Rural Telephone Service is hereby granted.

"Teaching the Students" != Students Selling Notes

[Chibi Merrow]

I happen to have been one of those "employees", until just recently, and I was involved in a minor scandal regarding republishing of lecture notes. I was a Research Assistant involved in helping teach a Senior/Graduate level computer graphics course. As part of the course, we provided PDFs of the lecture notes and slides on the University's Moodle site for students to use as study aids. Two of the students decided they were going to get rich, started a commercial, advertisement supported website to host lecture notes, and took the PDFs from the Moodle site for our class and put them on there.

There's three obvious problems with this:

1) The files are marked "not for distribution outside of class"
2) The files are available freely to anyone actually enrolled in the class, making a mirror pointless (especially one which makes the mirrorer money...)
3) The slides, in addition to having copyrighted works of the professor and RAs teaching the class, include excerpts from textbooks and supplementary materials from the publishers, reproduction of which is legal in limited (ie: academic) circumstances by a Professor but expressly forbidden for commercial use. The distribution of them on the Moodle site was done only for the benefit of the students, but if the publisher were to find these materials being distributed from a commercial site and track their origin back to us, we could be held liable.

In the case of us (the faculty) being held liable, we'd have no choice but to just NOT distribute any of these materials, which just screws over the students in the end (I'd like to see them pass the exam without them!). In the end, the two students involved were pointed to the notices on Moodle (and the syllabus) not to distribute the slides/notes and given a choice whether to remove the files from their site or receive an F... Thankfully they chose to remove the files.

So you want to sell your lecture notes? Fine, but make sure they're YOU'RE lecture notes, not just a copy of what the Professor's provided... A better option would be to use something like Moodle inside your University to share notes between fellow classmates... If your University doesn't have something like Moodle/Blackboard available for students, get on their case.