Legal Commentary

Prof Claims Copyright on Publication of Class Notes

By Professor University of Miami School of Law

Lawsuit Claim: Students’ Lecture Notes Infringe on Professor’s Copyright:

University of Florida professor Michael Moulton thinks copyright law protects the lectures he gives to his students, and he’s headed to court to prove it.

Moulton and his e-textbook publisher are suing Thomas Bean, who runs a company that repackages and sells student notes, arguing that the business is illegal since notes taken during college lectures violate the professor’s copyright.

Faulkner Press filed suit in a Florida court Tuesday against the the owner of Einstein’s Notes, which sells “study kits” for classes, including Professor Michael Moulton’s course on “Wildlife Issues in the New Millennium.”

Those notes are illegal, Faulkner and Moulton contend, since they are derivative works of the professor’s copyrighted lectures.

As a doctrinal matter, it seems to me that the prof here has a respectable case. (See the complaint.)

It’s important, though, to note some key facts. First, we’re not talking about a claim that students can’t take notes for their own use — of course they can.

Second, there shouldn’t be any doubt that fair use allows students to share notes with other students in the same class in the same year.

Third, I’d argue that fair use extends to sharing notes with other students in the same school, at least if no money changes hands.

Fourth, if students take what they learn and write their own treatment of the subject, that’s not copyright infringement, that’s wonderful.

If the facts alleged are accurate, however, there are three facts in this case which take it far outside those situations. First, the student was selling the work online for money. Second, it competed with a similar product by the professor. Third, they were pretty similar — the value added by the student over straight transcription is alleged to be not that great.

I’ve been trying to imagine how I’d feel if a student of mine did something like this. Part of me would admire the entrepreneurial spirit. How the rest of me felt would depend greatly on which course it was. I think for anything I teach out of a casebook, my only issue would be whether the existence of an easily available customized crutch would hamper the learning experience for future students. A big chunk of the originality in a course like Administrative Law is in the selection and arrangement of cases and materials in the casebook; I think — I hope! — I add something valuable to the base, but I doubt very strongly that it’s enough to be worth suing over. (One might think that given they’re all about the same basic area of law, the books themselves must be very similar, but this is not so.)

But two out of the three courses I’m teaching this year are based on my own materials, put together with some considerable pain and effort. The syllabuses are online, freely available, and one has lots of links to the materials as well; for both I also provide online a series of discussion questions, also viewable by the public.

Legal issues aside, if a student just republished all this for profit without permission, even it the publication credited me in some way, I don’t think I’d be pleased: I’d rather the money, if there’s going to be some, go to me or to a charity I liked than into the pockets of a somewhat random corporation and/or individual. Of course, there could come a point where the student’s addition of original commentary took it out of the realm of simple copying; that might be different. But short of that, I would not be pleased.

I’d be curious to hear, though, how current (and former) students feel about this.

Full post as published by Discourse.net on April 07, 2008 (boomark / email).