Blown To Bits

A Harvard Skirmish in the Copyright Wars

Sunday, September 27th, 2009 by Harry Lewis

Andrew Magliozzi, who graduated from Harvard College in 2006, runs the FinalsClub.org website. It hosts lecture notes and study groups for Harvard courses. At the moment you can get the nickel precis of Harvard librarian and history professor Robert Darnton’s course on the history of the book, as written up, lecture by lecture, by a pseudonymous note taker.

The Arlington Advocate has a good story about the site, motivated by the fact that Magliozzi is a graduate of the Arlington (MA) high school. (He also happens to be the son of Ray Magliozzi of Car Talk fame.) Magliozzi portrays the site as a nonprofit devoted to open access education.

Problem is, there’s an argument that what professors say in class is their intellectual property. After all, if they just read their own lecture notes, then their words have been “fixed in a tangible medium,” to quote the Copyright Act. So the professor automatically holds the copyright, and Magliozzi, or his note-taking helpers, are violating it. By that logic, it’s the same thing as listening to a song being sung, transcribing it, and posting the notes and lyrics on your web site. Copyright violation.

Magliozzi, according to the Arlington Advocate story, seems to be counting on leniency because his site is a non-profit.

Harvard has not been helpful to Mr. Magliozzi. According to a Crimson story from February, the university’s Office of the General Counsel informed him that “under the federal Copyright Act of 1976, a lecture is automatically copyrighted as long as the professor prepared some tangible expression of the content‚Äînotes, an outline, a script, a video or audio recording.”

This all reminds me a bit of the birth of Facebook. There was discussion within the Harvard administration and information technology office of a project to create an online version of the printed facebooks that Harvard had had for decades. By the time the discussions had advanced very far, some students had just gone ahead and created one.

It is the sort of wrinkle in the law and technological evolution that will keep lawyers and programmers both busy for several years. Follow the logic a little further and you get where the University of Texas is, advising its faculty thus:

Licensing Students to Create a Derivative Work

Many students probably create a work that would infringe a faculty member’s copyright, that is, they base their notes on and incorporate her particular expression rather than just state facts and ideas she articulates in more detail. Faculty members have always permitted this kind of activity without actually talking about it. They “implicitly” license students to create a “derivative work” from the lecture. The license is implied through academic tradition — students are expected to take notes. Now faculty may wish to make the implied license explicit and add some restrictions. Written and verbal instructions at the beginning of class could look something like this:

“My lectures are protected by state common law and federal copyright law. They are my own original expression and I record them at the same time that I deliver them in order to secure protection. Whereas you are authorized to take notes in class thereby creating a derivative work from my lecture, the authorization extends only to making one set of notes for your own personal use and no other use. You are not authorized to record my lectures, to provide your notes to anyone else or to make any commercial use of them without express prior permission from me.”

A limited license to take notes could be very important to protecting the intellectual content of lecture materials that embody the faculty member’s unfixed lecture and unpublished research, among other things.

Doesn’t sound much like a temple of the free exchange of ideas.

At least a few of us at Harvard are going to the opposite extreme. In a project being mounted in honor of the centennial of the Harvard Extension School, several of Harvard’s popular courses, including my own Bits course, will be, in large measure, given away free. (The Dean of Continuing Education, Michael Shinagel, announced this at the Centennial Convocation on Friday, September 25. Stay tuned for more details.)

One final note. As the Advocate notes, the FinalsClub site is named after Harvard’s old social clubs, which are called Final Clubs, because there once were Waiting Clubs for freshmen and sophomores while they waited to become members of the Final Clubs. “Finals” in Harvard lingo are the 3-hour final examinations in courses, and since more students talk about exams than clubs, over the years “Final Clubs” have come to be known as “Finals Clubs,” as though they were clubs for exam preparation. Now we have a FinalsClub site which legitimately could be thought of as an exam-preparation aid. There–I’ve said it. Perhaps, now fixed in a tangible medium, the etymological history will be remembered.

Addendum: Here is an example that explains how odd it seems for professors to be exercising intellectual property rights over students’ notes of their lectures. The original note-taker was Plato. Without him, the teachings of Socrates might not have survived, and Western philosophy might have been a very different animal.

39 Responses to “A Harvard Skirmish in the Copyright Wars”

  1. IP/Internet/New Media Blog » Crimson Copyright Cunundrum Says:

    [...] the end of “A Harvard Skirmish in the Copyright Wars“, at Blown to Bits, Professor Harry Lewis, former Dean of Harvard College writes: In a [...]

  2. Stuart Shieber Says:

    My understanding when I talked to Andrew about his site is that they would be getting permission from the instructor before adding a course to the site. The “About” page (http://finalsclub.org/about) refers to “[taking] took care to edit and pre-approve with a combination of diplomacy and obeisance to each professor.” Wouldn’t this pre-approval constitute a verbal license, so that copyright is not being violated by FinalsClub?

  3. Harry Lewis Says:

    Stuart,

    To be clear, I am not at all sure that any of these IP claims would really stand up in court, or should. (OF course, I am not a lawyer.) But the sentence you quote has a definite perfect verb; insofar as it refers to the present or future, it’s less specific.

  4. Jeff Collier Says:

    This all seems to be getting a little ridiculous. One of my math professors gave a wonderful geometric proof of the Pythagorean theorem in one of the first courses that I took at Harvard. So I have to get his permission before I can use that same example to teach high schoolers!? And where did that professor get the example, anyway? How far down the trail are we going to have to go?

    And if a professor records his lectures, he better be careful (at least in Massachusetts) not to record students without their permission. That’s against the law. There go questions.

    Someone oughta come up with a nominal priced online university for computer science courses. Then ramp up to every other lucrative discipline where skill in a particular area outweighs the piece of paper from some college. Then you’ll hear Harvard and all the others clamoring for free exchange of ideas. I think O’Reilly could do this as an extension of their publishing business…

  5. peter honeyman Says:

    I don’t think Prof. Darnton or Harvard counsel have a leg to stand on.

    Copyright protects a fixed form of an expression, not the expression itself. Harvard counsel’s argument that the content of a lecture is copyrighted by virtue of a tangible expression of the content is simply wrong: it is the tangible expression that is copyright, not the content. Every lawyer knows that. (OBTW, IANAL!) The example of transcribed lyrics is an apt analogy only if the lectures are also being transcribed, i.e., verbatim. The legitimacy of the clean room design technique for reverse engineering also suggests that Darnton and Harvard must yield.

  6. Susan Currie Sivek Says:

    What about Creative Commons licenses? I’ve put one on my courses’ Ning sites. Is there a reason that professors shouldn’t/couldn’t apply them? Explaining them to a class also strikes me as a teachable moment for discussing the nature of education, research, intellectual property etc.

  7. Eric Reiss Says:

    Not to sound snarky, but if the lecture notes are as valuable as the lecture itself, one has to question the value of the professor as a purveyor of information. Personally, my best teachers and mentors remain alive and well in my mind, not in my notes.

  8. Copycense Says:

    There are too many issues here to reasonably count. To think that Harvard and Texas actually provided this as faculty guidance or institutional policy is surprising, if not alarming.

    Under the current Copyright Act, a work qualifies for protection only once it is original and then fixed in a way that people can perceive it (i.e. the “tangible medium of expression”). This is essentially what Section 102(a) says in basic terms.

    The information from Harvard’s counsel is incorrect because a lecture generally would not qualify for the “fixed” part of the equation. What Harvard seems to conflate is eligibility for copyright protection under Section 102(a) and the public performance right under Section 106(4).

    But a professor can’t have a public performance right under 106(4) if the work in question does not even qualify for copyright protection in the first place under Section 102(a). And a lecture, in and of itself, does not qualify as a protected work under the ‘76 Act because it is not fixed. (There also may be an argument against copyrightability based on originality grounds, but the lack of fixation is certain and terminal.)

    The only way we can determine that a professor’s lecture would qualify for copyright protection, assuming it was original, in the first place is if the lecture was recorded. Then there would be two copyrighted works: the lecture, and then the notes or slides. The professor’s notes or slides arguably would qualify for copyright protection, but copyrightability in the notes is a separate issue from copyrightability in the lecture.

    The information from the University of Texas suffers from the same flawed analysis: it jumps to an assessment of rights under Section 106 (here, the 106(2) derivative work right) without first determining whether the work in question first would qualify for copyright protection under Section 102. To say that students need (or that faculty give) an implied license to make a derivative work of the lecture presumes the lecture, in and of itself, would be eligible for copyright protection in the first place.

    Again, without fixation, there is no copyrighted work, therefore no derivative work right, hence no actual or implied license.

    The Texas information also suffers from its reference to state common law: under the current Act, and via Section 301’s preemption clause, all copyright is federal as of January 1, 1978. There is no state common law copyright for today’s professors.

    Now, to be somewhat fair, some of this may change at the respective institutions pursuant to various and sundry institutional policies. But if so, those policies are inconsistent with the various enumerated sections of the Copyright Act of 1976.

    We absolutely cannot believe that any university counsel would actually say, suggest, or infer that their in-class lectures are protected by copyright law. That sounds like something a patent lawyer parading as a copyright expert would say.

  9. Copycense Says:

    One amendment to the previous post: if a professor writes out an entire lecture (presume it passes the Section 102 test), and reads this straight to the class verbatim, we could imagine a public performance/derivative work right being implicated in the lecture. But how many professors do that?

    (Actually, don’t answer that. We’d rather not know.)

  10. Twitted by darialalala Says:

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  11. Harry Lewis Says:

    Thanks, Copycense, for your helpful analysis. Professors actually have a variety of lecturing styles. I was stunned to discover that humanities professors routinely read their papers at conferences. Some do it in class to, I think. But what if the professor just uses detailed notes — imagine powerpoint slides without the display. Would the student’s notes, identical neither to the professor’s notes nor to the professor’s never-fixed-in-a-tangible-medium lecture, constitute a derivative work from the professor’s notes? And would it make any difference if the professor brought a recording device with him (or the university provided one) so his lecture was recorded, though never made public?

  12. Barbara Friedman Says:

    I am an IP lawyer, and unfortunately, the university is probably correct. The lectures are protected by copyright and the notes of those lectures is a derivative work. While the student may have an implied license to take those notes, the scope of that license is unlikely to extend to posting those notes on a website.

  13. Hilary Says:

    There is a long history of legal cases involving the question of intellectual property ownership in lecture materials. Some notable cases:
    - Abernethy v. Hutchinson (1825, England) – involving the publication of medical lectures in a journal
    - Caird v. Sime (1887, Scotland) – involving the publication of lectures on moral philosophy
    - Sherrill v. Grieves (1929, DC) – the publication of a book created by a US Army instructor for the purpose of teaching
    - Williams v. Weisser (1969, Cal Ct App) – an anthropology teacher sues a publisher of class notes

    (For more detail, see ‘A Non-Material form of Copyright: The Strange History of Lecturer‚Äôs Copyright’ / http://works.bepress.com/alex_steel/7/)

    All of these cases were before the 1976 copyright act, which some think removed the “academic exception” from the work for hire clause (thereby suggesting that the university would own any copyrights in the lectures). Weinstein v. University of Illinois (1987) touched upon this issue, as did Foraste v. Brown University (2003). (The university’s employment contracts may also be relevant – see, for example, UT’s policy here http://www.utsystem.edu/ogc/intellectualproperty/ippol.htm). It sounds as if in the FinalsClub situation, the university concedes copyright to the professor(s), and that a similar implicit academic exception is used to justify student note taking. In encouraging professors to license their lecture notes, it appears that University of Texas is also conceding ownership to faculty.

    Corinne McSherry also discusses the issue of copyright in academic lectures at length in her book “Who Owns Academic Work?”:
    http://books.google.com/books?id=ao9RaiunzF0C

    However, McSherry suggests that copyright in lectures is not the only issue, but that there is also a question over the professor’s right of publicity. As far as I know, there has not been much discussion over what a right of publicity would mean in an academic context. The right of publicity generally prohibits one from using another’s identity for commercial advantage without permission, and has been used to prevent the use of look-alikes in advertising, among other cases. In this context, it would essentially mean using the professor’s name to sell materials related to a class (although the fact that FinalsClub is a non-profit may complicate this slightly).

  14. Professors Claiming Copyright Over Their Lectures | PHP Hosts Says:

    [...] Scott points us to a similar story, involving a Harvard grad who is running a non-profit notetaking service. While there’s no lawsuit or anything yet, there is a discussion on whether or not the [...]

  15. Links 06/10/2009: KDE 4.3.2 Released | Boycott Novell Says:

    [...] A Harvard Skirmish in the Copyright Wars Problem is, there’s an argument that what professors say in class is their intellectual property. After all, if they just read their own lecture notes, then their words have been “fixed in a tangible medium,” to quote the Copyright Act. So the professor automatically holds the copyright, and Magliozzi, or his note-taking helpers, are violating it. By that logic, it’s the same thing as listening to a song being sung, transcribing it, and posting the notes and lyrics on your web site. Copyright violation. [...]

  16. Professors Claiming Copyright Over Their Lectures: or, The Increasingly Evident Injustice of IP Says:

    [...] Mike Masnick, Professors Claiming Copyright Over Their Lectures, about the ridiculous case of some Harvard Professors claiming copyright in their lectures, jeopardizing the rights of students to take notes (this is so opposite the approach of the heroic [...]

  17. Science Report » Blog Archive » IP as a Joke: Professors Claiming Copyright Over Their Lectures: or, The Increasingly Evident Injustice of IP Says:

    [...] Mike Masnick, Professors Claiming Copyright Over Their Lectures, about the ridiculous case of some Harvard Professors claiming copyright in their lectures, jeopardizing the rights of students to take notes (this is so opposite the approach of the heroic [...]

  18. Is it ridiculous enough yet? « Democracy Sucks Says:

    [...] notes, so that future students may not benefit from them. What a stupid idea! I like the point this blog post makes at the end: If Plato never took notes, the works of Socrates would never be known to the [...]

  19. 3 Count: Professor Copyright | PlagiarismToday Says:

    [...] 3: A Harvard Skirmish in the Copyright Wars [...]

  20. Tweetlinks, 10-10-09 [A Blog Around The Clock] « Technology Blogs Says:

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  21. Copycense Says:

    @harrylewis: Sorry for the delay in responding; we were presenting at a conference (ironically).

    Harry Lewis said:

    “But what if the professor just uses detailed notes ‚Äî imagine powerpoint slides without the display. Would the student‚Äôs notes, identical neither to the professor‚Äôs notes nor to the professor‚Äôs never-fixed-in-a-tangible-medium lecture, constitute a derivative work from the professor‚Äôs notes? And would it make any difference if the professor brought a recording device with him (or the university provided one) so his lecture was recorded, though never made public?”

    The quick and likely answer to the first question would be “no” because the student is taking notes (i.e. a fixation) independently. If the student’s notes are original (including not a verbatim copy of the professor’s notes or slides), then they could qualify for copyright protection separate and apart from the PPT slides.

    As to your second question, the recording of the lecture may make a difference in that it remedies the lack of fixation in the prior examples. In this situation (again assuming originality), the question would then become whether the professor owns the recording, or the University owns the recording. Without an agreement between the professor & University that says otherwise (including an employment agreement), or without a University policy that says otherwise, the University would own the recording because it would be the recording’s creator (or author, in copyright parlance).

    Again, though, recall that we did mention previously (albeit briefly) that University policy is important here: often a University will not hold the copyright in a professor’s work because of AAUP principles and a longstanding agreement that professors will retain ownership in their scholarly work, which would include lecture slides, notes, and recordings thereof.

    We have been presuming throughout, though, that the lecture and the professor’s notes both are original. Those notes (and the lecture that comes from them) both may fail the originality requirement of Section 102(a) if they are mere notes or copies of select quotes from textbooks authored by someone other than the professor.

    In a way, though, a lot of this thread suggests something has gone terribly wrong with our copyright & educational systems. We believe in copyright law and a properly calibrated copyright system, but the mere fact that you posted this (and there are comments, and Tweets, and lots of coverage elsewhere), suggests a rather unhealthy preoccupation with rights and who can make money from those rights.

    Further, a really great lecture –like a concerto — cannot be reduced to notes on a page; only really rote ones can. If a student can turn a buck selling notes to our lectures (and we do lecture), then vaya con Dios. In our education role, we see our responsibility as being compelling enough to force students to think and engage, rather than just transcribe. We would gather that professors who really challenge students to think likely don’t have this problem in their classes.

  22. Harry Lewis Says:

    Copycense says: “something has gone terribly wrong with our copyright & educational systems”: Couldn’t agree more, and that was really why I posted this. But I want to be clear about one thing — in spite of the way this post has been charactrized on several blogs that have picked it up, I know of no Harvad professor who has claimed copyright in a student’s notes. I simply quoted what Harvard’s counsel apparently told Mr. Magliozzi, that a professor could do that.

    And then there is the irony that the original copyright act in the US was called “An Act for the Encouragement of Learning,” and if I am not mistaken, the Statute of Anne, the British ancestor of US copyright law, was described in the same terms.

  23. Techrisk » ?Ñger du din f??rel?§sning? Says:

    [...] Scott points us to a similar story, involving a Harvard grad who is running a non-profit notetaking service. While there’s no lawsuit or anything yet, there is a discussion on whether or not the [...]

  24. Copycense Says:

    @HarryLewos: In re-reading, I realize part of our response may have given the impression we think you (and your co-authors) were preoccupied with rights and monetization. That was not our intent. Instead, it does seem Harvard’s University counsel does seem pre-occupied with protectionism and preserving potential, future monetization value; hence, the aggressive attempts at protecting what is not fixed.

    And yes, we too note the irony that we should engage in this discussion when the purpose of copyright in the U.S. (per Art. I, sec. 8, cl. 8 of the U.S. Constitution) is to encourage learning.

  25. Hilobrow | Middlebrow is not the solution Says:

    [...] then along came the Internet. As Harry Lewis discusses at Blown to Bits, sites like FinalsClub.org, a note-sharing site started by Harvard student Andrew Magliozzi ( son [...]

  26. Editer Says:

    Coming late to this … I meant to write a response when this was posted but got caught up in other things. I am a grad student at the University of Texas, and FWIW I have never heard a professor make the announcement quoted or otherwise assert copyright over his or her lectures.

    The policy linked in the original post does not recommend that all professors take the steps described; after a discussion of commercial class-note services and some potential problems with them, it introduces the recommendations the phrase ‚Äúif a faculty member has decided to limit what students can do with the notes they take while in class …‚Äù

    This appears (to me) to be not a draconian crackdown on free exchange of ideas but a way to support professors who don’t want their lectures commerically appropriated. In fact the policy states that faculty own the rights to their lectures (and thus that preserving their IP is their responsibility).

    I’m not saying that all is actually well in academia; the AEJMC recently published an article (http://www.aejmc.org/_scholarship/teaching/articles/three.php) by a professor at Kennesaw State describing in loving detail how she came down hard on a student who had recorded a class session without her knowledge. She called it “unethical” and asserted that lectures are automatically protected by copyright. She also advised other professors to take stern measures such as putting copyright notices on all their lecture slides. I wonder if she also assigns seats and makes students spit out their gum.

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