Higher Education Law Report

As I wrote on recently, video sharing app Vine—owned by Twitter—was issued a DMCA takedown notice by representatives of recording artist Prince. I had the opportunity to speak with Colin O'Keefe of LXBN regarding the story. In the interview, I explain what happened and offer thoughts on why we must balance copyright holders’ rights with incentivizing creativity. http://youtu.be/tF87HSf0NAM

Late last month, Twitter received a DMCA takedown demand from NPG Records, Inc., Prince’s record label, to remove a six-second video hosted on Twitter’s popular new Vine application. Vine is a mobile application (currently available only on iOS systems) that allows users to create and share videos that are a maximum of six seconds long.  The relatively new social media start-up, which officially launched in early 2013 after being purchased by Twitter, also lets users comment on videos and follow other users.  Despite the six-second limit – or perhaps because of it – Vine users are creating and sharing astonishingly imaginative and innovative content via the platform (be sure to view the Editor’s Pick section). As with any content-sharing platform, however, there is the possibility of intellectual property abuse, including both trademark and copyright abuse. The Digital Millennium Copyright Act To combat online copyright infringement, the Digital Millennium Copyright Act, or DMCA, protects content providers such as Vine from liability for alleged copyright infringement (a “safe harbor”) in exchange for the provider’s strict adherence to a process for removing alleged infringing material when they receive notification of an infringement claim from a copyright holder. In March, NPG Records sent a DMCA request to Twitter demanding that eight Vines be removed.  Twitter publicly publishes every DMCA request it receives at Chilling Effects, and the NPG Records request is available here. Copyright Infringement or Fair Use? According to a tweet from the content’s creator, @ZackTeibloom, the eight Vines reportedly contained “Two Purple Rain videos, Prince talking, Prince gyrating against a chair, Snoop from “The Wire” dancing, typical Prince show.” It’s not clear whether Teibloom’s content was actually infringing, or whether a de minimis or fair use defense might apply.  For example, if an average song is 3 minutes (180 seconds) long, then a full six-second clip appearing in a Vine video would be roughly 3.3% of the entirety.  But the analysis could be further complicated by other issues, including whether the Vine includes just the music (playing in the background, for example), or also includes a performance or other visual element, as at least one of Teibloom’s Vines did.  Mike Masnick at Techdirt, who has posted a YouTube video of one of the Vines, resolutely concludes that, at a minimum, the fair use defense applies. It’s unclear whether Teibloom plans to dispute NPG Records’ takedown notice, but a recent tweet suggests that in view of other concerns, including the 'no camera' policy in the building where he took the video of Prince, he will keep the content offline. Lenz v. Universal - a YouTube Takedown Notice NPG Record’s DMCA demand strikes a familiar chord.  In February 2007, Universal Music sent a takedown notice to a YouTube user who posted a twenty-nine second clip of her children dancing to Prince's “Let’s Go Crazy,” which was playing in the background.  The user argued that it was fair use and sued Universal with pro bono assistance from the Electronic Frontier Foundation.  That case may soon head to trial in the Northern District of California. The Take Home The DMCA notice from NPG Records emphasizes the challenging and ever-evolving intersection of social media and copyright.  With every new method of creating and sharing content comes not only the potential for copyright infringement, but also the potential for copyright owners to stifle the type of intellectual creativity that copyright laws are designed to protect.  Content creators, including Vine users, should aim for the proper balance of creativity and respect for copyright protection.

Seventy years ago the Metro-Goldwyn-Mayer film The Wizard of Oz opened in movie theaters around the world. Although the initial 1939 release of the movie failed to earn much more than the costs of production, advertising, and distribution, it has since earned millions of dollars in revenue from licensing fees. As the world celebrates the 70th anniversary of The Wizard of Oz, we take a look at the current federal copyright protection for this beloved classic and determine when the movie will lose that protection and enter the public domain. Dorothy Gale began as a character in the children's novel The Wonderful Wizard of Oz, authored by Lyman Frank Baum and illustrated by William Wallace Denslow. Baum, more commonly known as L. Frank Baum, was born May 15, 1856 in Chittenango, New York. After several careers including store proprietor and newspaper editor, Baum partnered with Denslow in Chicago, Illinois in 1899 to publish the nonsensical poetry book Father Goose, His Book. Less than a year later the duo completed their second and most popular collaboration, The Wonderful Wizard of Oz. The Wonderful Wizard of Oz was first published by the George M. Hill Company on May 17, 1900 and according to some sources was officially registered with the United States Copyright Office on August 1st of that year. The book was instantly a best-seller, and in the 109 years since its first publication it has sold millions of copies in countries all over the world. Copyright and Baum's Book When the novel was published, the duration of copyright protection was still determined under the Copyright Act of 1831. Under this Act, a work was eligible for an initial 28-year term of protection beginning on the date of publication (which was double the 14 years granted by the original 1790 Copyright Act). At the end of the initial 28 years, the term could optionally be extended by the copyright holder for another 14 years, resulting in a total 42 years of copyright protection. As a result, The Wonderful Wizard of Oz was set to enter the public domain in 1942. However, just 9 years after the novel was published Congress passed the 1909 Copyright Act. This Act kept the initial copyright term of 28 years but extended the renewal term from 14 years to 28 years for a total 56 years of protection. Since the extension applied to works with existing copyright protection as well as future works, Baum and Denslow received a 14-year extension of their copyrights. Unfortunately, Baum and Denslow were not able to enjoy the success of their novel for very long; Denslow died at age 59 in 1915 and Baum died at age 62 in 1919. The Wonderful Wizard of Oz, however, continued to prosper. In 1928 the copyright registration was renewed for an additional 28 years, and just a few years later Samuel Goldwyn purchased the screen and book rights the novel for the sum of $40,000. In 1956, just fifty-six years after Baum wrote the novel, the second 28-year term ended and the novel entered the public domain. (a free digital copy of the original The Wonderful Wizard of Oz can be obtained from the Gutenberg Project). Although the children's novel The Wonderful Wizard of Oz lost copyright protection in 1956, only the original novel by Baum and illustrations by Denslow have entered the public domain. Any newly-created material such as illustrations created for a new publication of the novel, will still be eligible for copyright protection because they are new works. Similarly, any derivative works based on the novel will potentially be eligible for protection. Section 101 of the Copyright Act defines a "derivative work" as "[a] work based upon one or more preexisting works" or "[a] work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship." Accordingly, new material added to an annotated version of the novel created, for example, in anticipation of the up-coming 110th anniversary of the novel's publication would not be in the public domain. The author of this new material would have a protectable interest in her work. Perhaps even more confusing, a new compilation of some of Baum's Oz-related stories might be eligible for copyright protection even if all those novels have been in the public domain for years. The creativity involved in selecting which public domain stories to include, and in what order to include them, would likely be eligible for copyright protection. Accordingly, although someone could copy all the individual stories within the Oz compilation (provided they did not have any new or otherwise protectable material), they could not copy all the works and then provide them in the same manner as the protected compilation. However, if someone selected all of Baum's works and presented them in chronological order in a compilation, there would likely not be enough creativity to establish copyright protection. When analyzing the copyright status of a work such as The Wonderful Wizard of Oz, it is important to note the contributor or creator of each part of the particular work in question. Copyright and the 1939 Film Unlike Baum's novel, the classic film The Wizard of Oz is still protected by copyright, but only as a result of several extensions granted by Congressional enactment. Under the 1909 Copyright Act, the 1939 film was eligible for a total 56 years of copyright protection (an initial 28-year term plus a 28-year renewal). As a result, someone living between 1939 and 1962 and planning to celebrate the day that Oz entered the public domain would have 1995 circled on their calendar (1939 + 28 years + 28 years). Indeed, if there had not been any additional reform of copyright duration, Judy Garland's famous portrayal of Dorothy Gale would have already been in the public domain for 14 years. Between 1962 and 1974, however, Congress passed several pieces of legislation that slowly increased the duration of copyright protection, each temporarily delaying the impending termination of copyrights in their second term. The 1974 extension, for example, delayed any terminations set to occur between 1962 and 1976 until December 31, 1976, effectively extending the length of the renewal term from 28 years to 42 years. By now the poor party-planning soul was completely unsure of the date that Oz would enter the public domain, but was tentatively making plans for 2009 (1939 + the 28 year initial term + a 42 year renewal). This year's 70th anniversary celebration of The Wizard of Oz might have also seen the movie enter the public domain. Once again, however, Congress stepped in to enact one of the biggest reforms of copyright law in history. Under the 1976 Copyright Act, the renewal term for works that had been created prior to January 1, 1978 were extended to a total of 47 years, thereby adding another 5 years onto the term of Oz's current copyright and delaying the date it entered the public domain from 2009 to 2014. The Act also set which day of the year a work would lose protection, providing that all terms of copyright would run through the end of the calendar year in which they would expire. As a result, Oz was set to enter the public domain at the stroke of midnight on December 31, 2014. Twenty-two later, however, Congress passed the Sonny Bono Copyright Term Extension Act and The Wizard of Oz received the longest term extension to date. For pre-1978 works that were still under copyright protection, the Act extended the renewal term from 47 years to 67 years, resulting in a total 95 years of protection from the date of publication. By now the party-planner was likely apoplectic but hopefully in good enough health to wait until 2034, the year that the movie is currently scheduled to enter the public domain:

1909 Copyright Act

28 years

The Wizard of Oz has been fortunate to enjoy the many term extensions granted by legislation during the past 50 years. Indeed, the duration of the movie's copyright protection has been extended by a total of 39 years from an original termination date of 1995 to the current date of midnight, December 31, 2034. The movie's 95 years of copyright protection will be a great deal more than the 56 years given to Baum's original novel. While it remains a possibility that Congress could once again prolong the duration of copyright protection for older works such as the 1939 film, the current terms of duration are relatively similar to terms around the world. It is very likely, therefore, that at midnight on December 31, 2034, The Wizard of Oz film will enter the public domain.

Last Friday (May 11, 2012), Judge Evans of the Northern District of Georgia issued a long-awaited decision in the Georgia State e-reserves case entitled Cambridge Univ. Press v. Becker.  At a hefty 350 pages, the decision will generate a great deal of analysis and interpretation over the coming days. One-Sentence Summary: Judge Evans’ decision provides some guidance for institutions of higher education attempting to craft copyright policies and conduct fair use analyses, and holds that Georgia State University’s fair use defense failed in only five of the 99 instances of claimed infringement. Quick Background In 2008, three publishers (Cambridge University Press, Oxford University Press, and Sage Publications) sued members of Georgia State University alleging that the University’s e-reserves system – through which students could access electronic content posted by faculty – infringed copyrights held by the publishers. In response, the University reviewed their existing copyright policies and drafted a new Copyright Policy that took effect in 2009 and which included a “fair use checklist” to help faculty and students understand and apply the fair use doctrine. In February 2010, both sides filed summary judgment motions.  The Court denied the publisher’s motion in full, but granted the University’s motion in part as to the claims of direct and vicarious infringement (leaving open the claim of contributory infringement).  The Court also agreed with the University’s argument that only the infringement claims post-dating the 2009 Copyright Policy were relevant to publishers’ claims for injunctive and declaratory relief. The publishers were then required to show that there was ongoing misuse of the fair use defense by the University despite the 2009 Copyright Policy.  In March 2011, they introduced evidence detailing 99 alleged infringements (later reduced to 75 after trial).  The trial began on May 17, 2011.  At the close of the publishers’ case, the Court granted the University’s motion for judgment on the claim of contributory infringement, leaving only the claim that the 2009 Copyright Policy caused copyright infringement. For the past year, both sides have awaited Judge Evans’ decision. The Decision

1. Valid Copyright Not Proven

Judge Evans held that the publishers failed to establish that they owned a valid copyright in many of the 99 instances of claimed infringement.  For example, for several of the works the publishers were unable to produce either a registration certificate or an assignment from the author to the publisher.  The Court steadfastly refused to overlook the missing documentation.

2. The Fair Use Defense

In the decision, Judge Evans conducted an extensive analysis of each of the four factors in the fair use analysis:

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 work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

The Court immediately held that the first factor heavily weighs in favor of the University and that the second factor weighs in favor of the publishers (see below). Accordingly, the remainder of the decision hinged on the third and fourth fair use factors. While discussing “the amount and substantiality of the portion used in relation to the copyrighted work as a whole,” Judge Evans largely dismissed the 1976 Classroom Guidelines, emphasizing that they “were not prepared by the legislators” and noting that the Guidelines’ numerical caps on how much of a work a teacher may copy under fair use “stands in contrast to the statutory scheme described in § 107.”  Accordingly, whether the University adhered to the Guidelines was not dispositive to the fair use analysis. In a portion of the decision that will undoubtedly be extensively analyzed over the coming weeks, the Court provided the following conclusions regarding the third fair use factor:

“Where a book is not divided into chapters or contains fewer than ten chapters, unpaid copying of no more than 10% of the pages in the book is permissible under factor three…In practical effect, this will allow copying of about one chapter or its equivalent. Where a book contains ten or more chapters, the unpaid copying of up to but no more than one chapter (or its equivalent) will be permissible under fair use factor three. Excerpts which fall within these limits are decidedly small, and allowable as such under factor three. Access shall be limited only to the students who are enrolled in the course in question, and then only for the term of the course. Students must be reminded of the limitations of the copyright laws and must be prohibited by policy from distributing copies to others. The chapter or other excerpt must fill a demonstrated, legitimate purpose in the course curriculum and must be narrowly tailored to accomplish that purpose.”

Interestingly, the Court’s numerical cap of one chapter per ten-chapter books appears to be just as restrictive as the 1976 Classroom Guidelines that Judge Evans’ repudiated as being non-dispositive earlier in her decision.

3. Individual Analysis of Each Instance of Claimed Infringement

Following a 247-page analysis of 75 instances of claimed infringement, the Court concluded that only five instances of copying were not fair use and thus constituted copyright infringement.  For each instance the Court concluded that the instructor had copied more than a decidedly small amount of the book by making available more than one chapter of a book with more than ten chapters, and that the book made substantial revenues via licensing.  For example, for one of the books the Court found copyright infringement even where the two full chapters represented only 37 pages and 3.01% of the total work.

4. The 2009 Copyright Policy

Finding that unlicensed use of a total of 5 excerpts constituted copyright infringement, the Court next asked if the 2009 Copyright Policy caused those infringements.  It did, Judge Evans found, because the policy did not do the following:

• it did not limit copying “to decidedly small excerpts” (per the new 10% or one-chapter rule set forth by the Court in this decision);
• it did not “proscribe the use of multiple chapters from the same book;” and
• it did not “provide sufficient guidance in determining the “actual or potential effect on the market or the value of the copyrighted work” (factor four of the fair use analysis).

Interestingly, according to the Court the “only practical way to deal with factor four in advance likely is to assume that it strongly favors the plaintiff-publisher (if licensed digital excerpts are available).” Although Judge Evans found that the University tried to comply with the Copyright Act by enacting the 2009 Copyright Policy, the University’s intent was irrelevant to the infringement analysis. What’s Next? The parties will now brief the Court on injunctive and declaratory relief arising from the five instances of copyright infringement. The Way Forward for Universities The Court’s ruling may provide some guidance to institutions of higher education in similar circumstances who have adopted or are working to adopt copyright policies, although the impact of her decision remains to be seen.  Specifically, Judge Evans came to the following conclusions regarding the fair use analysis:

1. If the use is for teaching and research by a non-profit, the first fair use factor (the purpose and character of the use) weighs “heavily” in favor of the university;

2. If the works are non-fiction and educational in nature, the second fair use factor (the nature of the copyrighted work) weighs in favor of the university;

3. If the excerpt is less than 10%, or no more than one chapter of a book with more than ten chapters, then the third fair use factor (the amount and substantiality of the portion used in relation to the copyrighted work as a whole) weighs in favor of the university; and

4. If a university can readily obtain a license in the appropriate format at a reasonable price, the fourth fair use factor (the effect of the use upon the potential market for or value of the copyrighted work) favors the publisher.

It should be noted, however, that the ruling will probably be appealed and thus is likely not the last word on the subject.  Stay tuned to the Higher Education IP Law Report for the latest on this case and others like it. For More Information: Here are a few links for further analysis of the decision:

• “The GSU decision — not an easy road for anyone” by Kevin Smith at Duke University;
• “Inside the Georgia State Opinion” by James Grimmelmann of New York Law School; and
• “Some Leeway, Some Limits” at Inside Higher Ed.

In late March, the United States Copyright Office proposed increased fees for copyright registrations (the public notice in the Federal Register is available at: http://www.copyright.gov/fedreg/2012/77fr18742.pdf). In 1997, Congress amended the Copyright Act to allow the Register of Copyrights (currently Maria A. Pallante) to set fees for Copyright Office services (subject to Congressional review).  Any change in fees must be based upon the results of a study of costs incurred by the Copyright Office.  The most recent fee study was initiated in October 2011 and made available in the Register’s public report, ‘‘Priorities and Special Projects for the United States Copyright Office’’(available at http://www.copyright.gov/docs/priorities.pdf). The Proposed Fees Currently, registration fees are $35 for a basic application submitted online, and $65 for an application submitted using a paper form.  The Office proposes raising the fees for an online claim to $65, and the fee for filing a claim using a paper application to $100. The Office also proposes a new, reduced fee of only $45 for a single author who files an online claim in a single work that is not a work made for hire. It is currently unclear whether a group registration – such as a registration of a group of related photographs – will be considered “a single work” and therefore eligible for the $45 fee, or whether it will be subject to the regular $65 fee.  See more here. A full list of the proposed price changes is available in the table beginning on page 5 of the public notice. Public Comment Period As part of the fee setting process, the Copyright Office has requested public comment on the proposed changes before they are submitted to Congress for review.  Comments can be submitted at: http://www.copyright.gov/docs/newfees/comments. Comments should be submitted to the Copyright Office no later than May 14, 2012.

I recently posted "A Social Media Model Based on the Safe Harbor Provisions of the DMCA" about the copyright concerns currently being addressed by the social networking site Pinterest. Earlier this week, I had the opportunity to speak with Colin O'Keefe of LXBN about Pinterest and how it is trying to avoid allegations of copyright infringement.  While much of Pinterest's protection derives from the Digital Millenium Copyright Act, the company also attempts to shift responsibility to their users via their Terms of Use.

Pinterest is a relatively new social photo sharing website, and is currently one of the hottest spots on the Internet.  The site generates massive amounts of referral traffic, rivaling popular content sharing sites such as Twitter and YouTube.  There are roughly 11 million registered Pinterest users (a number that is growing extremely rapidly) with as much as 97% of active users being female. Users “pin” a photo to Pinterest from their own collection or from websites.  Once pinned, the photo sits inside the user's “boards,” which are organized around a particular topic such as 'home,' 'technology,' 'kids,' or 'crafts.'  When a viewer clicks the photo in Pinterest, he or she is redirected to the website from which the photo was pinned.  As a result, web-savvy businesses are using Pinterest as  traffic driver that directs highly-marketable consumers to their websites. Copyright Issues Some, however, have questioned Pinterest's model, asking whether the posting of photographs belonging to others is actually nothing more than copyright infringement.  See, for example, “Pinterest Might Be Enabling Massive Copyright Theft,” and “Pinterest: Is It A Facebook Or A Grokster?” Pinterest's Copyright Policy makes it clear that it is relying on provisions of the Digital Millennium Copyright Act of 1998 (“DMCA”) to insulate it from allegations of copyright infringement. Section 512(c) of the DMCA, for example, provides a safe harbor to online service providers (“OSP”) that store potentially-infringing material as long as they satisfy the following requirements:

• The OSP must “not receive a financial benefit directly attributable to the infringing activity;”

• The OSP must not have actual knowledge that it is hosting infringing material or be aware of facts or circumstances from which infringing activity is apparent; and

• The OSP must, upon receiving notice of copyright infringement from a copyright owner or its agent, act expeditiously to remove the purported infringing material.

Pinterest's copyright page describes the information required to put it on notice, and provides a form for reporting the alleged infringement. Pinterest Responds to Critics Aware of the copyright concerns, Pinterest recently responded to these concerns in a post on its blog entitled “Growing Up.”  In the post, Pinterest writes: “As a company, we care about respecting the rights of copyright holders. We work hard to follow the DMCA procedure for acting quickly when we receive notices of claimed copyright infringement. We have a form for reporting claims of copyright violations on our site here. Every pin has a flag to make reporting easier. We also know that copyright is a complicated and nuanced issue and we have knowledgeable people who are providing lots of guidance.” To further prevent inadvertent copyright infringement, the company also announced a snippet of code that blocks photos from websites containing the code from being pinned, although there are likely numerous ways to maneuver around the code. The Current Aftermath Pinterest's blog post has generated opinions on both sides of the issue, ranging from disbelief that the service can evade copyright infringement, to others that consider the site's policy to be “genius:”

• “Now Pinterest Is Defending Itself From Accusations Of Copyright Infringement”
• “The Genius of Pinterest's Copyright Dodge”
• “Pinterest's uneasy relationship with copyright law: what happens next”

Yet another viewpoint comes from a photographer and frequent Pinterest contributor, who argues that copyright holders should embrace the traffic driven by services such as Pinterest rather than focus on the copyright issues (see, “Why Photographers Should Stop Complaining About Copyright and Embrace Pinterest”). This viewpoint is one of the most common, as evidenced by the numerous companies and websites that encourage pinning and the resulting traffic boon regardless of the potential copyright issues involved.  Indeed, many sites have started adding a “Pin it” button to encourage the pinning of their copyright-protected photographs and graphics. The Future There's no question that Pinterest, like so many new services before it, pushes the boundaries of copyright law.  Although Pinterest's policies and prevention measures are unlikely to completely insulate it from copyright infringement lawsuits, they make it clear that the company is aware of the issues and is looking for ways to manage them. Reminder to the Higher Education Community Regarding the DMCA Much like Pinterest, most institutions of higher education qualify as an internet service provider (transmitting data) and/or an online service provider (storing data) under the DMCA.  Institutions must, however, establish and maintain the proper procedures in order to benefit from the safe harbor provisions of the DMCA.  For example, universities must have a procedure in place for receiving notice of copyright infringement from a copyright owner or its agent, and must act expeditiously to remove the purported infringing material once notice is received. Further, online service providers must designate – on its website and to the Copyright Office – an agent to receive notifications of claimed infringement.  If you’re unsure whether your university has designated an agent, the Register of Copyrights has a current directory of all designated agents available at the Directory of Service Provider Agents for Notification of Claims of Infringement.

Officials at California State University and University of California have recently instituted new policies that affect the ownership and sharing of notes taken in the classroom by students.  These new policies have raised questions about whether students or their instructors actually own the copyrights to class notes.  While the sale of class notes is clearly prohibited in California by both university policy and the California Education Code, some argue that it is the students who possess the copyright in their notes and that the policies unconstitutionally restrict the students’ free speech. Websites like Notehall, NoteUtopia, CollegeNoteShare, and Versity.com (now defunct) have allowed students to buy and sell their class notes online for years. Student Reported for Selling Class Notes According to reports, California State University recently sent a cease and desist to Notehall after at least one student was reported to student judicial affairs for selling notes on the website.  The cease and desist letter cites both the university’s policies and the California Education Code as prohibiting the selling, distributing or publishing class notes for a commercial purpose.  Following the letter, Notehall has blocked students from CSU and UC from registering with the website. New Policy at UC Berkeley In December, the University of California, Berkeley instituted a new policy (available here (pdf)) restricting the sale of course notes.  The policy, which went into effect last month, states that the instructor may have a copyright interest in the students’ class notes:

“class notes and recordings are based on the intellectual effort of the instructor, who has an interest in protecting this effort and ensuring the accuracy of any public representation of his/her work. When notes or other recording of instructors’ presentations are sold or shared, they may infringe on the copyrights of the instructors and may violate the campus prohibition on unauthorized commercial activity.”

While the policy does allow students enrolled in the same class to share their notes with others “currently enrolled” in the class, the instructor can specifically limit this sharing.  Further, the policy appears to prohibit the sharing of class notes from semester to semester. The policy also emphasizes the prohibition on commercializing class notes set forth by Section 66450 of the California Education Code.  This section of the code states that no one, including an enrolled student, can:

“prepare, cause to be prepared, give, sell, transfer, or otherwise distribute or publish, for any commercial purpose, any contemporaneous recording of an academic presentation in a classroom or equivalent site of instruction by an instructor of record. The prohibition applies to a recording made in any medium, including but not necessarily limited to, handwritten or typewritten class notes.”

UC Berkeley Cease and Desist Templates In addition to the new policy, UC Berkeley has also provided to instructors a set of cease and desist letter templates that can be downloaded, modified, and sent to students or third parties accused of selling class notes.  On the cease and desist website, the university more clearly sets forth its understanding of an instructor’s rights to a student’s class notes:

“As an instructor, you retain the copyrights to your class materials.  This right stems from Federal law and is dictated by the University of California Policy on the Ownership of Course Materials and UC Berkeley campus policy on Course Note-Taking and Materials. Unless you inform your students otherwise, students enrolled in a course may take notes and share them with other students enrolled in the class during the same semester.”

Notably, the cease and desist website does refer instructors to the Creative Commons if they are interested in instituting a less restrictive policy on class notes.

UC Berkeley Professor Questions With New Policy

According to Jason M. Schultz, an assistant clinical professor of law at UC Berkeley and director of the university’s Samuelson Law, Technology & Public Policy Clinic, this is an issue of federal copyright law and constitutional free speech, which trump the California Education Code and the university policies:

“Instructors have almost no intellectual property rights to what students write down in class, he said. Faculty members may have intellectual property in the books they write, articles they publish and even possibly in the lecture notes they write for themselves, but students own the copyright on their own notes, he said.”

(via Do Students Have Copyright to Their Own Notes?). Do Instructors Have a Copyright Interest in Student Notes? Whether the instructors and/or the students have any copyrights in class notes likely depends on the amount of original expression found in each student’s notes.  A student who is effectively transcribing the instructor’s lecture or presentation has contributed very little or no original expression or intellectual property to the transcription, and the instructor likely retains a copyright interest in these notes. On the other hand, if the student is simply writing or typing original thoughts (such as observations, conclusions, questions, hypotheses, derivations, etc...), as he or she listens to the lecture, the student alone likely possesses a copyright interest in these notes. In between the two is a continuum that includes, among others, the student that merely condenses or outlines the lecture, and the student that transcribes only portions of the lecture while adding the occasional original thought. Whether either students or the note-sharing websites will challenge the university policies or the California Education Code remains to be seen. For More Information:

• California universities make new moves in fight on notes
• CSU students banned from note-sharing site
• UC Berkeley’s New Policy on Student Note-Taking (Part 1) and (Part 2)
• Bad News from Berkeley

• Charles P. Nash, On the Ownership of Academic Presentations: The Evolution of California Education Code Sections 66450-66452, 35 McGeorge L. Rev. 205 (2004)

Today, websites, companies, and individuals around the country are participating in the largest online protest in history as they battle two proposed bills currently pending before Congress, the Stop Online Piracy Act (SOPA) and the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act (PROTECT IP Act or PIPA). Google, for example, has a black censorship box splashed over their logo today (pictured to the left), and Wikipedia has gone dark while providing information about how to contact you local representatives (if you just can’t live without Wikipedia today, the site is still available on mobile devices and smart phones, or by disabling JavaScript in your browser).  A full list of the many popular websites protesting SOPA and PIPA today is here. We’ve written before about SOPA and PIPA, and about how they’ve come under fire by mainstream media and civil liberties groups who believe the bills would shift too much responsibility onto ISPs, advertisers, and payment processors while also giving the U.S. government and trademark and copyright holders too much power to block allegedly infringing websites without sufficient due process. Despite the powerful opposition to the bills, both are still alive as of today, January 18, 2012.  Indeed, the Senate is set to vote on PIPA next week, and the House will resume their work on SOPA next month.  See here for more information about the bills, the background, and the next steps. The bills have strong supporters as well.  Chris Dodd, the chairman and CEO of the Motion Picture Association of America (MPAA), is one of these strong supporters and has stated that today’s online protest is “yet another gimmick, albeit a dangerous one, designed to punish elected and administration officials who are working diligently to protect American jobs from foreign criminals.”  See here for Dodd’s full statement. Whether today's online protest serves to raise awareness and alter the language or course of these bills, or merely serves as a "gimmick" remains to be seen, although it is clear that thousands or perhaps millions of people who have never heard of either SOPA or PIPA will discover at least some of the many issues surrounding the bills as they go about their day today.

I’ve written before about common law copyright protection of sound recordings made before February 15, 1972.  Although the Sound Recording Amendments to the 1909 Copyright Act extended federal copyright law to sound recordings, it only did so to sound recordings made on or after February 15, 1972.  Per the amendments, federal copyright law does not preempt state common law or statues regarding pre-1972 sound recordings until February 15, 2067. This has resulted in a meshwork of state common law copyright protecting – or not protecting – pre-1972 sound recordings.  In 2009, Congress instructed the Copyright Office to conduct a study on the “desirability and means” of extending federal copyright protection to pre-1972 sound recordings, and hearings on the subject were held throughout 2011. Late last month, the Copyright Office issued a report (“Federal Copyright Protection for Pre-1972 Sound Recordings”) recommending that pre-1972 sound recordings be brought under federal jurisdiction.  The Copyright Office asserted that not only is there very little information as to why Congress opted to omit pre-1972 sound recordings, bringing them under federal jurisdiction would “best serve the interest of libraries, archives and others in preserving old sound recordings and in increasing the availability to the public of old sound recordings.”  Further, it would bring clarity to this muddled area of copyright. A few interesting recommendations from the report regarding proposed terms of protection for pre-1972 sound recordings:

• The term of protection should be 95 years from publication or, if not published, 120 years from fixation, although no term should extend past February 15, 2067.

• In all cases, the term of copyright protection for all pre-1972 sound recordings cannot continue past February 15, 2067.

• Interestingly, for sound recordings published before 1923, the copyright owner would be able to obtain protection for 25 years from enactment of legislation that federalizes protection by: (i) making the work available to the public “at a reasonable price” and (ii) filing with the Copyright Office notice of the owner’s intent to secure protection.  This means that pre-1923 works will by default go into the public domain unless the copyright owner actively pursues protection.

• For sound recordings published between 1923 and 1972 and which are scheduled to expire before February 15, 2067, the copyright owner would be able to extend the term through 2067 by: (i) making the work available to the public “at a reasonable price” and (ii) filing with the Copyright Office notice of the owner’s intent to secure protection until 2067.  For example, a work published in 1925 would expire in 2020 under the federal scheme.  The copyright owner, however, could extend the term through 2067 by completing the listed steps.

For the fifth time, the Librarian of Congress (currently James Hadley Billington), upon the recommendation of the Register of Copyrights (currently Maria Pallante,), will conduct a rulemaking proceeding to determine whether certain prohibitions of the Digital Millennium Copyright Act (“DMCA”) adversely affect users of copyrighted works. Anti-Circumvention Provisions of the DMCA Among the many provisions of the DMCA, enacted in 1998, is a provision (17 U.S.C. § 1201(a)) which prohibits the circumvention of technological measures which control access to works protected by the DMCA.  For example, the anti-circumvention provision prohibits the use of software to bypass DVD encryption which prevents illicit copying. However, the same section of the DMCA provides that the anti-circumvention provision does “not apply to persons who…adversely affected by virtue of such prohibition in their ability to make noninfringing uses of that particular class of works under this title…”  In other words, the anti-circumvention provision will not apply to certain groups of people who are unable to make a valid noninfringing use of a work due to the technological measures, so long as the group is one of the groups identified by the Librarian of Congress. Triennial DMCA Rulemaking Proceedings Accordingly, the Librarian of Congress must “make the determination in a rulemaking proceeding…of whether persons who are users of a copyrighted work are, or are likely to be in the succeeding 3-year period, adversely affected by the [anti-circumvention] prohibition…in their ability to make noninfringing uses under this title of a particular class of copyrighted works.”  In other words, every three years the Librarian of Congress must determine and publish which classification(s) of people it has identified as unable to make a valid noninfringing use of a work due to technological measures controlling access to works. Since enactment of the DMCA, four such determinations have been made.  Following the most recent determination, the Librarian of Congress published on August 6, 2010 the following classifications of people exempt from the anti-circumvention provision of the DMCA:

• DVDs protected by a Content Scrambling System, when circumvention is to incorporate short portions into a new work for the purpose of criticism or comment, and where the circumvention is for: (i) an education use by college and university professors or film and media studies students; (ii) documentary filmmaking; or (iii) noncommercial videos;

• Computer programs enabling wireless telephone handsets to execute software applications for the sole purpose of enabling interoperability of such applications;

• Computer programs that enable used wireless telephone handsets to connect to a wireless telecommunications network;

• Testing for or investigating security flaws or vulnerabilities of video games accessible on personal computers

• Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete; and

• Literary works distributed in ebook format when all existing ebook editions of the work prevent the enabling either of the book’s read-aloud function or of screen readers that render the text into a specialized format.

Comment Period Open Through February 10, 2012 In September, the Copyright Office issued a Notice of Inquiry in the fifth anticircumvention rulemaking requested written proposals to designate classes of works from all interested parties in order to elicit evidence on whether noninfringing uses of certain classes of works are, or are likely to be, adversely affected by this prohibition on the circumvention of measures that control access to copyrighted works. Those proposals have been posted to the Copyright Office’s website, and the Copyright Office recently requested comments regarding these proposed classes of works, which include several new classes in addition to those adopted in 2010. Comments addressing the Proposed Classes of Works are due by 5 p.m. E.S.T., February 10, 2012 (via this form).  Reply comments addressing points made in the initial comments are due by 5 p.m. E.S.T. on March 2, 2012.

Case: CAMPINHA-BACOTE v. BLEIDT (S.D.Tex. 10-3-2011) What allegedly happened: A he-said / she-said case. A university professor (who has since resigned) claimed that he was authorized to use a 25 page survey, owned by the plaintiff in this case, on classes of incoming students for a certain period of time. On the other hand, plaintiff claimed that there was no authorization for the use of the survey by the "main defendant professor" and one of his co-workers. Most of the claims originally present in this case were dropped on sovereign immunity grounds because defendant are a state university, specifically Texas A&M's pharmacy college and a couple of its professors.* The defendants have also raised the defense of fair use of the survey (as will be discussed below), but the court's October 3rd opinion only deals with the issue of whether plaintiff authorized the defendants' use. Decision: The issue of whether there really was authorization to use the survey must be decided through a trial. Strategy Question: The short opinion mentions a license offer made by the copyright owner to one of the defendant professors:

[The author of the survey] responded that the cost would be $735 for 2010, and asked for documentation of the prior agreement with [the university professor]. The pharmacy school decided against using the survey during August 2010 orientation at least in part because it was too expensive.

The relevance of this $735 offer is not immediately clear, especially because the court was deciding a summary judgment motion on liability, and not deciding any damages issues.  The $735 figure was made by the copyright owner in the context of licensing and authorizing future use and did not directly relate to the unauthorized use at issue in this case, which had occurred prior to the $735 offer.** It may be that the court believed that the university, or the involved professors, could have settled this matter early by paying about $735 per semester of allegedly unauthorized use, but, if so, that may or may not be a realistic assumption. Fair Use: In disputes over copyrighted materials that are used for educational purposes, fair use is frequently raised as a defense.  Indeed, fair use has been raised, but not yet litigated, in this case. Some of the plaintiff's recent briefing shows that she continues to be concerned about this defense:

In an email dated as recent as September 16, 2010, [the main defendant professor] communicated with [a dean of the university], whereby he made mention of and implications that his use . . . of Dr. Campinha-Bacote’s survey was protected by fair use. . . . The second factual issue is that the College's fair use of a copyrighted survey instrument should not be much of an issue. There was no data collected for analysis purposes or for use in research; any use was for a nonprofit-educational purpose only. Apart from the fact that [the main defendant professor] actually uses the term “fair use,” he also identifies what he thinks the relevant fair use factors are by mentioning “nonprofit” and “educational purposes.” By this statement, it is clear that [the main defendant professor] has knowledge of the fair use doctrine. Consequently, it can be reasonably inferred that [the main defendant professor] is under the impression that his use, both in the past and in the future, would be protected by the “fair use” doctrine. Accordingly, Defendants are more likely to continue using Plaintiff’s tool if they are under the impression that such use is protected. Without an Order from this court granting Plaintiff her injunctive relief, Defendants will be free to use Dr. Campinha-Bacote’s surveys without paying a fee.

Footnote(s): *  More specifically, the claims against the university, and against the professors "in their official capacities" were dropped, leaving only claims against two of the professors in their non-official capacities.  The opinion does not specify as to whether the university has a continuing duty to defend the professors against the remaining claims that were not found to be amenable to summary judgment. **  It is not clear whether the copyright owner even knew about the allegedly unauthorized use at the time she made the $735 license offer.