Einstein on Copyright: Professorial Lectures and the Future of Commercial Note-Taking Services

As an alumnus of the University of Florida, I was educated in a collegiate system that held huge classes for general education requirements.  With nearly 50,000 students, the university was forced to consolidate these large humanity, science, and math courses to class sizes of nearly 300 students, in some instances.  This same scenario can be seen at most large, public universities across the nation.  This problem in classroom size has become an issue with regard to commercial note-taking services.  Commercial note-taking services flourish in these large university settings and provide comprehensive notes taken by students from previous years to current students for a fee.  Given the ease in transmission of intellectual property over vast networks on the internet, copyright infringement issues have emerged with regard to these professorial lectures.  Questions have arisen regarding both (1) student notes as potential copyright infringement, and (2) sales of these notes by commercial services, such as Einstein’s Notes.

The first of these issues relates directly to the students.  When a student takes notes in class, that student is, to varying degrees, infringing on the copyright of the professor.  While neither facts nor ideas can be copyrighted, expression and collections of information can be.  Therefore, when a student copies headings and important points a professor has written on the board, or denotes a professor’s expression of an idea, the student is creating a derivative work, which is an exclusive right of a copyright holder.

There are two reasons that students are allowed to do this:  the traditional style of learning established by universities, and fair use.  First, in the university lecture system, it is encouraged—if not a necessity—for students to take notes, and thus infringe the work of their professors.  After all, expecting students to avoid any re-creation of a professor’s expression would render the notes functionless and inhibit learning.  Second, the use of teaching materials in a learning environment is the quintessence of fair use under 17 USC §107.  The fair use exception allows use of a copyrighted work, based on the following factors:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes,

(2) the nature of the copyrighted work,

(3) the amount and substantiality of the portion used in relation to the copyrighted as a whole, and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

17 USC 107 allows for infringement if the use is for scholarship or research; however, the sale of these notes to commercial note-taking services may not fit within this safe harbor, as the use is no longer strictly for research, but is now used for profit.

What does it take for a professor to copyright a lecture, and what protection does this copyright provide?  Fair use and derivative copying are irrelevant unless the professor can (a) gain a federal copyright in the material or (b) assume some type of state common law protection.  To be protected by the Federal Copyright Act, 17 U.S.C. § 102, a professor would need to create an (1) original work, (2) be the author, and (2) fix the lecture in a tangible medium of expression, such as through a written or A/V recorded medium.

This provides ample copyright protection, and all remedies available attach if the work is registered with the copyright office. The only remaining hurdle at that point would be to find a lawyer willing to sue a student in an attempt to get blood from a stone.

Conversely, for some state common law purposes, fixation may not be required.  The University of Texas has created a crash-course in Intellectual Property  for its professors, and it states that unfixed works might be protected by state common law.

The professor would then need to show merely that she was the author, and she would have some level of protection.  However, this type of common law claim would be unlikely, because proof of infringement would be difficult without showing some fixation, (either through slides or recordings) and the remedies would likely be small.

Why does any of this matter?  Two pressing reasons surface with regard to this infringement.  If the students sell the notes to a commercial note-taking service, both the student and the note-taking service are profiting from the original work of the professor.  Secondly, students pay a lot of money to go to these universities.  Some may have an issue with seeing the information they paid for being in the public sphere and available to anyone for free.  In addition, though attenuated, concerns may develop at the university, which pays a professor to create lectures and might consider this work product and claim a protectable interest.

The counterpoint to this argument, however, has its supporters.  If students are able to buy these student notes from a service such as Einstein’s, not attend class, and still receive a passing or even exemplary grade, fault should lie not with the note-taking service, but with the university structure itself.  Both professors and universities could eliminate this entire problem by changing curriculum often enough to defeat the purposes of having the previous years’ notes.  Additionally, the UT crash course posits that the university could restrict the use of student notes, making the distribution of lecture notes an honor code violation.

Therefore, at this point a professor has two options if she is bothered by the sale of derivative lecture works.  She can either: (1) take her chances with her state common law and hope that the damages are worth the cost, or (2) fix the lectures, register them with the copyright office (for all additional remedial options), and sue the note taking service.

One professor at the University of Florida has decided to pursue the latter.  Professor Michael Moulton has fixed his lectures by making slides and creating an electronic textbook with Faulkner publishing.  He has also gone the extra mile to register this information with the copyright office (for example, here is one audio lecture registered with the copyright office).  Finally, Mouton and Faulkner Press brought suit against Einstein’s Notes (Class Notes LLC), and they are currently pending trial in August. Faulkner Press v. Class Notes, LLC, 2009 U.S. Dist. LEXIS 120367.  It seems Moulton has a substantial case, and this could spell doom for the commercial note-taking service, if only with respect to Professor Moulton’s materials.

In the final analysis, however, this case will not affect the vast majority of professor- authored lecture material for the simple fact that most professors either don’t care, don’t know what to do to protect themselves, or realize the cost-benefit ratio is prohibitive of action.  Very few professors will go to the lengths of Professor Moulton to fix their lectures in a medium and secure copyright protection of their lectures.  Even fewer would be willing to go to court to fight for injunctive relief or for the revenue derived from these $7 note packages.

 However, this case may prompt more action on the part of teachers.  The use of teacher lectures out of context on the internet and in the media to slander and defame the professor is a potential Constitutional issue.  For teachers who instruct classes with politically charged material dealing with topics such as race, poverty, and other social issues, there is a risk that statements might be detrimentally taken out of context from lectures, by disgruntled students.  Though no real, positive incentive existed previously, this potentially negative use of class material may prompt teachers to exercise their ability to protect their work.