Desert of My Real Life

{December 26, 2009}   Whose Property Is It?

When I was in graduate school more than 12 years ago, a new company opened up in Tallahassee that caught the attention of many students (and probably faculty members) at Florida State University.  I don’t remember the name of the company but I do remember its business purpose.  The company would pay students to take notes in their classes and then would sell those lecture notes to other students in those same classes.  This service seems like a waste of money to me since any student already paying tuition for the class could simply create his or her own version of the lecture notes.  If they went to class, that is.  But I suppose the prime target of this company could be those students who haven’t yet learned to take good notes themselves.  In any case, that business all those years ago in Tallahassee appeared to do very well in the face of some concerns expressed by various factions in the academic community.

I hadn’t thought about this company in years.  Recently, however, this kind of business is much in the news.  In 2008, Michael Moulton, a faculty member at the University of Florida, filed a lawsuit against a company called Einstein’s Notes, which sells what they call “study kits” for classes at UF.  Moulton, and the company that publishes the textbook that he has written, claim that the material in Moulton’s lectures is copyrighted and therefore, by publishing student lecture notes without his permission, Einstein’s Notes is violating that copyright.  The issue is a difficult one, especially because it is the material created by the student that is being sold by Einstein’s Notes rather than any written material created by the faculty member.

Copyright provides the author of a work the exclusive right to control the publication, distribution, and adaptation of that work.  An idea cannot be copyrighted.  Instead, copyright extends only to “any expressible form of an idea or information that is substantive and discrete and fixed in a medium.”  This is key to these lawsuits, it seems, since the gray area seems to lie in whether the lecture itself is “fixed in a medium.”  In Moulton’s case, it just might be.  Moulton has published two textbooks based on his lectures and uses them in his classes.  In addition, his publisher sells its own version of lecture notes for his classes.  So when a student takes notes in a class based on the lecture, although those notes are not a “copy” of the professor’s lecture, they are derivative of the lecture.  That is, those notes are a kind of adaptation of the professor’s lecture.

Of course, I’m not a lawyer but this is how I understand the issues in the Moulton case.  I think things get murkier when a faculty member has not “published” anything related to his or her lectures, however.  Moulton’s lawyer doesn’t seem to think so.  He says that if a faculty member were to write out the high points of the lecture on a transparency and display them to the class via overhead projector, that fixes the material in a medium.  If a student then bases her lecture notes on that transparency, her notes are a derivative of material that is copyrighted and therefore, is not eligible to be sold without the faculty member’s permission.  The lawyer doesn’t say anything about whether material written on the chalkboard is fixed in a medium.

As an academic at a public university, I believe that education should be available as cheaply as possible for as wide an audience as possible.  For example, I teach a computer literacy class for free for senior citizens and get enormous pleasure from seeing them learn.  I would, however, have a problem if someone took my “lecture notes” from that class and sold them on the Internet without my permission.  The material that I teach in that class is basic information, available in a variety of forms from a variety of sources.  There’s nothing in the content that could be considered new information.  What is original about the class is the way the material is organized and presented.  Many of the senior citizens tell me stories about taking beginning computer classes elsewhere and feeling overwhelmed, lost and discouraged.  This class, they tell me, is the first time they’ve felt as though they actually could learn to use a computer to send and receive email and to search the Internet.  So there is definitely something unique and original about the way I’m presenting the information.  Why would I have a problem if this material was made available through a company like Einstein’s Notes?  It isn’t because I don’t want the material to be made available.  Instead, it’s because I don’t think Einstein’s Notes should make money from my work without getting my permission and without compensating me.

Moulton’s lawyer points out that Einstein’s Notes puts a copyright notice on the lecture notes that they sell.  In other words, the company sells the lecture notes but then attempts to prevent those notes from being copied.  They are claiming copyright on material that they played no part in creating.  In what world does that make sense?

Sit10 says:

By Moulton’s argument, then, wouldn’t tutoring itself be illegal? And wouldn’t his lecture?

If we are paying him to present an approach to another’s material (Stephen Hawking or something), is he violating Hawking’s copyright? And if I, a student, offer to help my classmate understand Moulton’s lecture (because I do, and she doesn’t), am I in violation by repackaging the lecture in a way my classmate can understand?

Then if I sell that package to another student — maybe one not my classmate, maybe one not at my university — only NOW am I in violation? Or only if through a distributor, like Einstein’s?

Moulton’s logic chain falls apart the closer you get to the original material. I think he has picked the wrong argument for his case. Selling class notes certainly seems unsportsmanlike. Unethical at a stretch, though the one being played for a fool is the consumer who pays first for the class then for notes he could take himself if he would show up. The distributor who buys notes from the diligent student whithout knowing how helpful they are is also buying a pig in a poke (they say that down Florida, don’t they?)
This is too long a comment.

These are excellent questions! But I think the real issue is the making of money off of the repackaging itself. So tutoring is not illegal because the tutor makes money for the time spent with the student. If, however, the tutor were to simply repackage (in some fixed medium) the material and charge money for the purchase of the repackaging–that would be a problem. Of course, this opens up all kinds of other cans of worms. And I think the issues will get worse as more education becomes available online. I do think teaching (good teaching anyway), however, involves creating original material.

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