A Harvard Skirmish in the Copyright WarsSunday, 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.