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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.

The undisputed founding father of computer science is Alan Mathison Turing, 1912-1954. He worked as both a mathematician and an engineer, proving the fundamental theorem about computationally unsolvable problems and, during World War II, building early large-scale computing devices, which were used to crack the German Enigma Code.

Turing was a homosexual, and homosexuality was illegal in England at the time. In 1952 he was the subject of a criminal prosecution for homosexuality, and lost his security clearance and endured other humiliations, including hormone treatments to “cure” him. The prosecution effectively ended his career, and he died soon thereafter, of what is generally acknowledged to be a suicide. Alan Turing: The Enigma is an excellent biography.

British Prime Minister Gordon Brown has now issued a formal apology:¬†”So on behalf of the British government, and all those who live freely thanks to Alan’s work I am very proud to say: we’re sorry, you deserved so much better.” (Full text of Brown’s statement here.)

Amen.

There is a lovely story in the New York Times today about a low-power radio station in northwest Montana: ¬†Creston Journal – From a Porch in Montana, Low-Power Radio’s Voice …. There are only 800 of these licenses, though Congress may increase the number. This particular station has a very short broadcast range but is piped through the Internet to listeners as far away as Florida. It’s an excellent example of the kind of radio diffusion we discuss in Chapter 8 of Blown to Bits. Why shouldn’t the broadcaster in Montana be able to cut a deal with the listener in Florida to rebroadcast to a local Florida audience?

Full disclosure: I know exactly where this transmitter is; I drive through Creston, MT several times each summer, as it is on the road between my summer home the airport we fly into. It’s beautiful, but as the pictures in the story indicate, it is beautifully isolated.

I have blogged several times about the Google Book Settlement (type “settlement” into the search window to bring up the posts). To be brief: Google started scanning books, including copyrighted works; organizations representing authors and publishers of copyrighted books sued Google for copyright infringement; the three parties have worked out their differences behind closed doors, producing a very long settlement agreement, which is now public; the matter now sits on the desk of a federal judge, Denny Chin, who must either approve or disapprove the settlement document (he cannot edit it). Because it is a class action lawsuit, members of the class are invited to tell Judge Chin what they think. The deadline for that is today. A number of objections have been filed; it appears that a group of distinguished authors and academics, including Jacques Barzun, Harold Bloom, and Harvard colleagues Steven Ozment, Mary Ann Glendon, and Ruth Wisse is also planning to file (pdf of notice here).

(There are other legal strategies for opposing the settlement. Microsoft, Yahoo, and Amazon are all lobbying the Department of Justice to oppose the Settlement, on anti-trust grounds. Amusing as it is to see Microsoft warning about the possibility of another company becoming a monopoly, it is quite correct in that fear.)

I am grateful to Lewis Hyde for permission to reproduce his eloquent objection immediately below. I have filed a brief objection myself, which I include below Lewis’s.

The Honorable Denny Chin
% Office of J. Michael McMahon, Clerk
U.S. District Court, Southern District of New York
500 Pearl Street
New York, NY  10007

August 31, 2009

Dear Judge Chin:

I write to object to some of the terms of the settlement that has been proposed by the litigants in Case No. 05 CV 8136, The Authors Guild, Inc., et al. v. Google Inc.

I am a member of the Author Sub-Class in this lawsuit.  The University of Michigan library lists eight books of mine that we may assume were digitized by Google in the course of their creation of Google Book Search.  These include The Gift (Random House, 1983), This Error is the Sign of Love (Milkweed Editions, 1988), and Trickster Makes this World (Farrar, Straus, 1998).

As an author I am also a reader, a user of libraries, and a beneficiary of the public domain.  I say this because I believe that the settlement in question amounts to a major intervention in our national cultural policy, one that will affect the U.S. knowledge ecology for generations to come.  It therefore should not be adjudicated upon the assumption that we authors (and our publishers) are rights holders only.  We are cultural citizens as well; our copyrights matter to us, but so do larger questions of how literature and knowledge circulate among us.

It is my understanding that courts hold fairness hearings in class action law suits in order to determine whether all members of the class find the proposed settlement fair, adequate and reasonable.  While I applaud many of the elements of the settlement in question, I am nonetheless troubled by several others.  To be specific:

*¬† I object to the settlement’s proposed capture of income from orphan works.¬† I can think of nothing in the history of copyright law, or in the law as currently written, that would countenance such a taking.¬† As a 1988 House of Representatives Report stated clearly:

Under the U.S. Constitution, the primary objective of copyright law is not to reward the author, but rather to secure for the public the benefits derived from the author’s labors.¬† By giving authors an incentive to create, the public benefits in two ways:¬† when the original expression is created and…when the limited term… expires and the creation is added to the public domain. [H.R. Rep. No. 100-609 at 17]

In no instance are third parties meant to benefit, as the settlement would allow.¬† The primary beneficiary of a copyright grant is the author and, as copyright expert Melville Nimmer once wrote, “the ultimate beneficiary is the public domain.” [Nimmer on Copyright III at 13]¬† To allow other parties to intervene between the author and the public would be like allowing an executor to drain an estate before distributing it to the rightful heirs.

The settling parties must therefore find some better way to dispose of the unclaimed funds that accrue from orphan works.¬† My own suggestion would be for the court to appoint a guardian or trustee charged not just with the task of representing absent owners but with a mandate to do so in the light of copyright’s traditional double focus:¬† rights holders must be given their due and, where no rights holder can be found, the public domain must be the beneficiary.

*  I object to the monopoly powers that Google and the Books Rights Registry will acquire, should the court approve the orphan works elements of the settlement.  Approving the settlement as it stands will in essence grant the settling parties a compulsory license enabling them to exploit the commercial value of orphan works.  Because of the unique nature of class action litigation it will be virtually impossible for any other digital library or search service to receive such an exemption.  Google will thus be in a position to monopolize this important part of our emerging knowledge economy.

Again, history makes it clear we should be wary of such broad powers in regard to the circulation of knowledge.¬† Copyright has long been classified as a monopoly privilege and in the context of expression, as Lord Macaulay famously said, “…monopoly is an evil.¬† For the sake of the good we must submit to the evil; but the evil ought not to last a day longer than is necessary for the purpose of securing the good.” [Misc. Works (1880) at 233]

In our own tradition, as you may know, Thomas Jefferson believed that the Constitution ought to have prohibited monopolies in general and, if an exception were to be made for copyright, believed that it should be strictly limited.¬† In a letter to James Madison dated 28 August 1789 Jefferson suggested the following addition to the Bill of Rights:¬† “Monopolies may be allowed to persons for their own productions in literature…, for a term not exceeding ‚Äì‚Äì years, but for no longer term, and no other purpose.”¬† (As for the term, Jefferson’s usual suggestion was 19 years.)

In short, monopoly privileges in the world of public expression have been viewed with extreme skepticism ever since the first appearance of a public sphere in the eighteenth century.  It would be dangerous indeed to grant them now to the private parties who propose this settlement.

*¬† Finally, I object to the fact that no representative of libraries or of the public interest will be a voting member of the board of directors of the Books Rights Registry.¬† The Registry promises to be an important player in the nation’s cultural environment; if it is called into existence, its directors must represent the users as well as the owners of proprietary content.

In sum, while I support many elements of the settlement as currently drafted, in regard to the items I have here listed I do not consider it to be fair and reasonable.  I urge you to take these issues into account as you approach the difficult task of deciding whether or not to approve the settlement.

Yours sincerely,

Lewis Hyde

And here is my own letter to the judge.

The Honorable Denny Chin
% Office of J. Michael McMahon, Clerk
U.S. District Court for the Southern District of New York
500 Pearl Street
New York, NY  10007

September 4, 2009

Dear Judge Chin,

I write to object to some of the terms of the settlement that has been proposed by the litigants in Case No. 05 CV 8136, The Authors Guild, Inc., et al. v. Google Inc.

I am a member of the Author Sub-Class in this lawsuit.  At least four books of mine have pesumably been digitized by Google in the course of the creation of Google Book Search: Excellence Without a Soul: How a Great University Forgot Education (PublicAffairs, 2006), Blown to Bits: Your Life, Liberty, and Happiness After the Digital Explosion (co-authored by Hal Abelson and Ken Ledeen, Addison-Wesley, 2008), Data Structures and their Algorithms (co-authored by Larry Denenberg, HarperCollins, 1991), and Elements of the Theory of Computation, 2^nd Edition (co-authored by Christos Papadimitriou, Prentice Hall, 1998).

I am Gordon McKay Professor of Computer Science in the School of Engineering and Applied Sciences at Harvard University. As a scholar, I am not only a writer of books but a reader, researcher, and teacher who uses books daily.

While I support many aspects of the proposed settlement, I object to the proposed settlement because it threatens to create an unregulated digital book monopoly. Specifically, it would grant to Google and the Books Rights Registry legal license to profit from orphan works (copyrighted works whose rights holders are unknown, and who therefore cannot set what the proposed settlement refers to as a “Specified Price”). It is unfair for these parties to profit from works they had no role in creating. Moreover, the proposed Settlement would grant Google the authority to set the price of orphan works without any outside review or regulation. In other commercial domains where monopolies have arisen (electric power and telecommunications, for example), some public body has overseen the pricing structure. It would be unfair for the Court to sanction the creation of a private information monopoly, in which Google could, without fear of competition or regulation, fix prices for works to which it does not hold rights.

Thank you for your attention.

Sincerely yours,

Harry R. Lewis