Online essay. Previously available online under the title "Intellectual Property and Online Notes Companies: Teaching Copyright in Cyberspace," 1999.
Please cite as: Deflem, Mathieu. 1999. "Resisting the Commodification of Education: University Policies Against Commercial Lecture Notes Companies." Unpublished paper. Available via mathieudeflem.net.
This paper is part of the website campaign, Free Education Now!
Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.
—Earl Warren, Chief Justice of the Supreme Court, 1957
This article offers an analysis and perspective on the legal status of rights and responsibilities in respect of teaching and lectures and their changing constellation with the advent of the internet. Specifically, this article is written in view of one specific dimension in the multifaceted world of e-learning: the rise of commercial lecture notes companies on the internet (see Blumenstyk 1999; Levy 1999; Steinberg 1999). These notes companies appeal to students to sell their lecture notes of courses taught at colleges and universities and post them on the internet. The companies are privately owned and are not affiliated with any educational institution. Typically, also, the notes are bought from students without permission from the instructor of the class. The companies mostly offer the notes for free and operate on a for-profit basis through revenues derived from website advertising.
The world of e-learning is constantly changing and consists of a multitude of different forms and manifestations. Amongst many other issues, e-learning involves voluntarily (and often freely) provided information, offered by private individuals and organizations oriented at the distribution of knowledge in a variety of subject matters; distance-learning programs that provide courses on-line; and so-called online campuses or virtual colleges that offer instruction and degrees on the internet. In addition, various internet sites provide support to education in the form of information sites that guide prospective students and their parents in choosing a school; on-line companies that sell textbooks, office equipment, furniture and just about every other thing students may be interested in; and sites with instructional tools and learning aids, such as dictionaries and encyclopedias. Discussing the phenomenon of e-learning, it is important to acknowledge the variability of its dimensions and to not conflate all forms of internet-based education with one another (Deflem 2000b). Instead, one should carefully delineate the various forms of online learning and discuss their respective merits and limitations. My comments in the remainder of this article specifically pertain to legal issues of intellectual property in connection with online notes companies that distribute lecture notes of courses taught at colleges and universities on the internet.
The objectives of this article are to unravel the legal status of teaching in order to protect the educational rights and duties of students and teachers in their college or university against the intrusion of commercial notes companies. At the same time, I acknowledge that the legal issues involved with unauthorized lecture notes is not an argument in the debate on the merits and problems of these practices. Instead, arguments against unapproved notes services must always be educational, particularly inasmuch as they relate to the rights and the responsibilities of instructors over their classes, including the manner of presentation.
As I have argued at greater length elsewhere (Deflem 2000a, 2000c, 1999), the most serious drawback with unauthorized notes is the loss of autonomy and responsibility that the online service involves in student-teacher relationships. No matter the effects, such practices constitute an unwanted intrusion into education. Furthermore, there is on the part of the companies also a serious lack of quality standards and accountability in providing notes. Worse still, several of the notes companies detail a user agreement that includes the explicit disclaimer that no guarantees are made on the quality of the notes and that the company cannot be held liable for any mistakes in the notes. Hence, as is the case with any form of e-learning, the potential and real dangers do not relate to the online technology or internet-based infrastructure as such, but primarily concern the quality of instruction and the educationally appropriate use of whatever means are available and relied upon in teaching. Because of the serious educational concerns involved with unapproved notes services, it is appropriate to look at the relevant regulations that our legal system provides as useful instruments to protect the respect and dignity of student-teacher interactions which we value from an educational viewpoint.
Focusing on the phenomenon of online notes companies and the strategies that universities and colleges need to develop and have already developed, my analysis will offer a clear presentation of the legal issues involved. I will conclude that a variety of legal devices can be developed and implemented against an improper use of online notes. Of the several options available, the ones most likely to be effective, I will argue, are for educational institutions to develop explicit policies in terms of copyright, academic freedom and privacy, and/or trust and contract.
This article is structured as follows. I first offer a brief historical review of the most important court cases that have so far decided on the legality of college and university lectures. Then I review the legal conditions of U.S. copyright law and offer an application in the matter of notes companies. I will also defend the position that the practices of commercial lecture notes companies are highly problematic in terms of a number of other rights secured in our legal system, specifically academic freedom and breach of confidence. I will separately comment on the relevance of these issues for current and developing university policies and federal and state legislation, also in relation to the rise of distance education programs organized by colleges and universities.
1. Law and Education: A Brief Legal History of Teaching
The relevance of law in matters of teaching has been recognized for a long time. Dating back to the early 19th century, concerns have especially been raised in relation to the rights and duties in teachers and their students in the setting of a classroom. Though e-learning is evidently different from classroom interactions in physical and other respects, it is worthwhile to review these elements of legal history because their basic premises and underlying principles are still, albeit differently, relevant today.
Trust and Contract: Abernethy v. Hutchinson (1825) and Its Legacy
The earliest instance to discuss lectures in a legal context involved an English court case, Abernethy v. Hutchinson (1825), in which a surgeon, named Abernethy, brought action against the defendants, Hutchinson, Knight, and Lacey, who had published some of Abernethy’s medical lectures in the journal The Lancet. The judge presiding over the case, Lord Eldon, argued that lectures should either be considered in terms of property or as a matter of trust between the teacher and his students (Abernethy, p. 1315). The judge decided to only rule on the matter of trust and held that there was an "implied contract" between the students and their teacher (p. 1313). Students who took lecture notes and sold them for profit, the judge argued, should be held liable "on the ground of breach of contract or of trust" (p. 1317). Students admitted to the lecture could according to the judge take notes "only for the purposes of their own information," while "[a] person who attends oral lectures is not justified in publishing them for profit" (p. 1313).
The Abernethy case has served as precedent in several later court cases (e.g., Board of Trade v. Christie Grain 1905; International News Service v. The Associated Press 1918; Miles Medical Company v. Park & Sons 1911). The Abernethy case has also been relied upon in cases that expanded the original ruling. In Caird v. Sime (1887), for example, the House of Lords ruled that the lectures delivered by a professor of moral philosophy at the University of Glasgow enjoyed common law copyright protection. Likewise, in Nicols v. Pitman (1884), common law copyright was granted to a teacher’s lecture. In the first case on lectures before a U.S. court, Sherrill v. Grieves (1929), the Supreme Court of the District of Columbia held that an instructor who taught for United States Army officers held a copyright to his lectures. The instructor had written a textbook on his lectures, but prior to the book’s publication, U.S. military authorities had already printed a pamphlet that incorporated the instructor’s teachings. The court ruled that the teacher, not his employer, owned the copyright to his lectures because he was not obliged to reduce his lectures to writing as part of his work for the military authorities.
Copyright and Unfair Competition: Teaching Laws in the 20th Century
In more recent times, there have been several additional court cases involving the copyright of lectures and oral presentations. Among these is Public Affairs Associates Inc. v. Rickover (1959), in which the U.S. Supreme Court held that Vice Admiral Rickover owned the copyright to speeches he had delivered, even though those speeches were part of his work for the Navy. Likewise, in King v. Mister Maestro (1963), Martin Luther King moved for a preliminary injunction restraining 20th century Fox Record Corporation from selling phonograph records of his famous "I Have a Dream" speech and from otherwise infringing the copyright King claimed for the speech. The court held for Dr. King on the grounds that there had been no general publication.
The most important case that gave copyright to lectures in college until today is Williams v. Weisser (1969). This case involved a suit against a commercial provider of lecture notes, the company Class Notes owned by Weisser, which had been selling notes of a course taught by an anthropology professor at UCLA. When the professor objected to the lecture notes of his class being copied, published, and sold by the company, he sought permanent injunction and damages. Relying on several of the prior cases on lecturing (including Abernethy v. Hutchinson , see Williams, p. 736-740), the court judged in the professor’s favor on the grounds that: "1) defendant infringed plaintiff’s common law copyright in his lectures; and 2) defendant invaded plaintiff’s privacy by the use of plaintiff’s name" (Williams, p. 730). On appeal to the case, the higher court affirmed the lower court ruling and held that the teacher owned the copyright to his lectures: "the lecturer retains a property right to his words spoken before a limited audience" (p. 731). Furthermore, the court argued that oral delivery of lectures in a classroom is not a general but only a limited publication for the registered students (p. 741).
In the case of University of Florida v. KPB (1996), the University of Florida brought action against a company that published study guides for classes of the university. The owner of the company hired students attending the university to take lecture notes, which it then marketed to the student body. The court decided by jury for the publisher on the grounds that even if the publisher’s use of numbers, places, and times of course meetings in its study guides created a likelihood of confusion, the publisher was not liable to the university under the unfair competition provision of the Lanham Act under Title 15 of the U.S. Code. Only judging on the matter of unfair competition, the court denied motion for summary judgment as to the University of Florida’s copyright infringement claims.
Finally, in the case of Arica Institute v. Palmer (1991), a U.S. District Court in New York decided against the Arica Institute, a not-for-profit educational institution, in its suit against a former instructor of Arica who had published a book on the same subject matter as was offered in the Institute. The Institute had brought charges on the basis of copyright infringement, violation of the Lanham Act, and on the basis of unfair competition. The court ruled against the Arica Institute because it judged that the matters discussed in the instructor’s book and in the training programs were not copyrightable. Furthermore, the court ruled that the book and the training programs shared no substantial similarity and that the book’s contents was otherwise a matter of fair use.
2. Establishing the Copyright of Teaching
More than 150 years ago, the judge in the case of Abernethy v. Hutchinson (1825) already understood that granting copyright (or the right of property) to lectures was "a question of mighty importance" (Abernethy, p. 1317). Legislation and jurisprudence on copyrighting in the United States may count among the most difficult legal entanglements, further complicated by the fact that federal laws on the matter have undergone important transformations. Before I discuss the ramifications of copyright for teaching, it is useful to untangle its legalities in some detail (see Miller 1981; Nimmer 1971; Nimmer and Nimmer 1978; Burgunder 1995; Nicholson 1956; Latman 1962).
U.S. Copyright Law From 1909 to 1976
Until 1976 the United States had a dual system of federal copyright law, specified in the Copyright Act of 1909 in Title 17 of the U.S. Code. The 1909 Act granted copyright protection to all original writings by an author. Among these copyrighted works, the 1909 Act explicitly listed: "(a) Books; (b) Periodicals...; (c) Lectures, sermons, addresses (prepared for oral delivery)... and many other works, such as compositions, movies, and art works" (1909 Copyright Act, Title 17). Also, a distinction was made between common law copyright and federal (or statutory) copyright. Common law applied before publication and federal copyright regulated works after publication.
In 1976, U.S. Congress introduced a new Copyright Act that went in effect in 1978. The 1976 Act made federal copyright applicable from the moment of creation, not publication, of any work within the scope of the statute. The moment of creation was determined by fixation of a work in a tangible medium of expression. Specifically, the Act states that a work is fixed "when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration" (Title 17 §102). The 1976 Act took into account the development of new media of data storage (such as the internet) by extending copyright to all "original works of authorship fixed in any tangible medium of expression, now known or later developed" (Title 17 §102).
The Teacher Exception to the Work-for-Hire Doctrine
In matters of copyright law and education, legal scholars have most often addressed the question whether the works created by an instructor or teacher as an employee of a school belong to the teacher, or whether they belong to the school as employer. This query relates to the fact that the 1976 Act specified a so-called work-for-hire provision, which holds that a "‘work made for hire’ is; (1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned... if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire" (id. §101). A review of the literature shows that a large majority of legal experts and authorities agree that the teacher exception is implicitly guaranteed in the 1976 Act (see Borow 1998; Chew 1992; Dreyfuss 1987; Holmes and Levin 2000; Meyer 1998; Patel 1996; VerSteeg 1990, 1996; Wadley and Brown 1999).
The position of an implied teacher exception in the 1976 Copyright Act is defended because the 1976 Act was not enacted to surpass the 1909 Act but was instead primarily meant to deepen and explicate the prior provision. Hence, because under the 1909 Act the work-for-hire doctrine was explicitly not applicable to teachers, it would follow that it still is so today (Nimmer and Nimmer 1978; Dreyfuss 1987; VerSteeg 1990; Lape 1992; Meyer 1998; Patel 1996). A related argument in favor of the teacher exception is that not accepting a teacher exception to the work-for-hire provision would create undesirable consequences. VerSteeg (1990), for instance, argues that it does not make sense to give teaching copyrights to universities, because teachers moving from one school to the next would not be permitted to use materials they had developed at a prior school (VerSteeg 1990:408). Likewise, Dreyfuss (1987:603) relies on principles of academic freedom and the tradition of professional authorship in the academia to conclude that employer authorship is a fiction in the university.
Several courts have accepted and applied the teacher exception. In Williams v. Weisser (1969), for instance, the judge argued that the copyright of lectures must belong to the teachers, because "[p]rofessors are a peripatetic lot, moving from campus to campus. The courses they teach begin to take shape at one institution and are developed and embellished at another" (pp. 734-735). In Hays v. Sony Corporation of America (1988), Judge Posner also acknowledged the teacher exception and used the undesirable consequences argument, referring to the "havoc" that would be created if the exception was not accepted, additionally making reference to "the absence of any indication that Congress meant to abolish the teacher exception" (Hays, p. 416).
The discussion on the teacher exception to copyrighting is useful inasmuch as the debate does not deny that teacher’s works are copyrighted, the only question being who the owner of the right is (the teacher or the institution). The important question that now needs to be addressed in the context of this article’s theme is: Do the copyrightable works produced by teachers and professors in educational institutions include their lectures?
Lectures as Fixed Forms of Expression
The 1976 Copyright Act does not grant copyright to "any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work" (id. §102), but only to certain forms in which facts and ideas are presented (Needham et al. 1998, p. 219). To determine copyright protection under federal law, therefore, a clear distinction must be made between the form in which something is expressed and the idea of the expression. Since the 1976 Act assigns copyright only to works fixed in a tangible medium of expression, legal commentators have suggested that lectures "as orally delivered presentations" are not copyrightable under the federal provision (Burgunder 1995:187). Importantly, however, this does not mean that any and all lectures are not protected by copyright under any and all circumstances. In the Arica (1991) decision, the Supreme Court argued that federal copyright "protects an author’s particular expression of an idea" (Arica, p. 1062).
There are reasonable grounds to argue that teacher’s lectures in educational institutions are copyrightable on the grounds that they are by their very nature always a specific and fixed form of expression. The copyrightability of lectures can be defended taking into account the provisions of the 1976 Act on the status of ideas and facts, on the one hand, and the nature of educational lectures, on the other. Educational lectures are granted copyright because they are specific expressions that cannot be dissociated from the form in which they are delivered. Indeed, lectures in educational settings, especially those conducted by qualified instructors at accredited institutes of higher learning, are never oral expressions as such, but are always prepared and delivered in a particular form with various accompanying materials, such as written notes from which teachers lecture orally, written text on blackboards and over-head projectors, images and sound recordings, maps and lesson plans, and textbooks and other scholarly writings on which lectures are based. In fact, to conceive of a lecture in an educational institution as a mere oral delivery of ideas and facts is readily counter-intuitive to any sound conception of academic teaching. This was already clear in Abernethy (1825), where the judge observed that the teacher had written down "a great mass of writing" for his teaching and that the lectures he gave were "though not verbatim the same as his notes and writings, yet were in substance, arrangement, and statement of the facts, substantially the same" (p. 1315).
In sum, it makes sense to accept the court’s argument in Williams v. Weisser (1969) that "[u]niversity lectures are sui generis," i.e. expressions of a specific kind (p. 735). The classroom in an institute of learning, indeed, is not a forum of participatory democracy but a purposively designed setting with a particular functionality and division of labor. The key to teaching and learning is not a transmission of mere information but of information that is appropriate relative to specified educational objectives. In the Williams (1969) case, lectures were also seen from this viewpoint when the court suggested that there is "a distinction between what is taught and how it is taught... What is at stake here is not any ownership in the subject matter... but the concrete form in which plaintiff has cast the subject for pedagogical purposes" (p. 732).
The notion that educational lectures are specific has already received judicial support. For example, in Baker v. Selden (1879), the Supreme Court held that for some works it applies that "their form is their essence" and that "their essence consists only in their statement" (pp. 103, 104). Granting copyright to lectures on this basis also relies on the greater protection that the courts have granted to unpublished (but fixed) works. In 1991, the U.S. District Court for the Southern District of New York, for example, argued that because lectures "are unpublished, they are entitled to greater copyright protection than published works" (Arica, pp. 1066-1067). And, finally, it is to be noted the 1976 Copyright Act should again be seen as a deepening of the 1909 Act, which explicitly granted copyright to lectures. In sum, as James Richardson, the President of the American Association of University Professors, argued, a professor’s lecture is "developed by that professor and represents the synthesis of thought of a trained professional. Thus a lecture is... a creative product" (cited in Levy 1999).
Supposing that it would be denied that lectures in educational institutes themselves are copyrightable because of their specific form and that it would be true, as Wadley and Brown (1999:n.6) argue, that "oral classroom lectures, without more,... would not be protected by copyright," not all legal protections would be exhausted. In that case it is still true that any fixations of lectures are copyrighted, as are all the fixed materials that accompany the preparation and the delivery of the lectures (Borow 1998; Harper 1999). Fixating lectures would immediately grant copyright protections to the teacher. As the court argued in the case of Town of Clarkstown v. Reeder (1983), the teacher exception provides that "‘if a teacher elects to reduce his lectures to writing, the teacher and not the institution employing him owns the copyright in such lectures.’ [quoting Nimmer on Copyright]. This result is compelled by the nature of our educational system" (Town of Clarkstown, p. 143 n.3).
Fixation of lectures also applies to tape recordings of lectures by sound and/or video recording equipment. For instance, a legal brief in the case of University of Texas v. Walter Camenisch (1981), argued that students taping lectures should "sign agreements that they will not release the tape recording or transcription or otherwise hinder the professor’s ability to obtain a copyright." And indeed many schools require students who wish to tape lectures to ask for permission from the instructor. The copyrights of taped lectures are protected by the 1976 Copyright Act, which states that "[a] work consisting of sounds, images, or both, that are being transmitted, is ‘fixed’ for purposes of this title if a fixation of the work is being made simultaneously with its transmission" (Title 17 §102). These copyright protections also apply to all fixed materials that go along with the preparations for and delivery of the lectures, such as textbooks and maps.
Supplementing Federal Copyright Law
Assuming that all previous reasoning would not have been successful in defending the viewpoint that lectures can be copyrighted, it would still not necessarily follow that there are no copyright protections of lectures. First, the 1976 Act only pertains to federal statutory copyright, but still allows for states to supplement the federal Act with other copyright provisions based on common law. As Nimmer and Nimmer (1978) argue, the 1976 Copyright Act made copyright law in the United States primarily federal, but state law can still fill numerous gaps not explicitly governed by the federal regulation. Thus, as Melville and Perlman (1998) accurately state, "[u]nfixed works... are left to whatever protection state law may accord" (p. 364).
A supplementing law at the state level would enable a stricter and more specific copyright that explicitly protects unfixed works, including lectures in educational settings (Harper 1999). As VerSteeg (1996) states, a teacher is the "‘author’ of the lecture" and a state’s common law may still grant appropriate copyright (VerSteeg 1996:1353-1354). Lectures could receive copyright protection at the level of the state either by enacting new state laws that explicitly accord common-law copyright protection to lectures or by testing existing state laws in the courts as implicitly already granting such protection. In the state of California, for instance, copyright regulations recognize rights in the representation or expression of original works that have not been fixed in a tangible medium of expression (California Civil Code section 980).
Common law protection of lectures, finally, could also be guaranteed by developing university guidelines on the copyrights of lectures and/or by individual instructors assigning copyrights to their lectures and related materials. For instance, a copyright notice —including the symbol ‘©’ and/or the word ‘Copyright’ followed by the year of publication and the name of the owner of the copyright (Title 17, § 401; Needham et al. 1998:333)— can be included in teaching syllabi. Also, a university policy can specify a list of copyrightable works that specifically includes "tests, exams, class handouts, lesson plans, lectures and lecture notes, outlines, and educational units" (VerSteeg 1990, p. 414).
Implications for Notetaking
Supposing that lectures, fixated lectures, and/or lecture materials are copyrighted by federal and/or state law, the implications include that students can take notes of the lectures they attend for their own use, to prepare for exams, and for private use not necessarily directly related to their formal training and/or after their formal education is done. However, students would not be permitted to sell their notes for profit or otherwise use them in ways that would interfere with the teacher’s copyright.
Hence, the practice of students selling notes to notes companies can clearly not live up to the standards of fair use as specified in the 1976 Copyright Act. In the federal act, fair use is only allowed upon consideration of the following relevant 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 work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work" (id. §107). Assessing these factors in the case of commercial notes companies reveals that, with respect to purpose and character of the work, these companies are profit-oriented businesses that post notes that have been bought from students. In the Williams (1969) case, the court had already left no doubt that the publisher of notes was "a businessman who, for personal profit, was determined to pursue a certain course of action even if it meant riding roughshod over the rights of others" (p. 744). The fact that lectures have purely educational goals increases the severity of the copyright infringement. Another consideration of fair use, the effect of the copyrighted work for the potential market of the copyright-holder is also readily affected, for the fact that notes companies also copyright the posted lecture notes puts the teacher in competition with the fruits of his own teaching.
Most delicate perhaps is the fair use provision of the 1976 Copyright Act which stipulates that the "amount and substantiality" of the work based on the copyrighted work is an important concern. As the U.S. Supreme Court recently argued, "fragmentary words and phrases do not exhibit the minimal level of creativity necessary for copyright protection," but "[e]xtensive paraphrasing plainly constitutes copyright infringement" (Arica, pp. 1063, 1066). In this respect it is important to note that the online companies typically present the notes as a student’s interpretation of the lectures and not the professor’s notes. However, such a disclaimer by the companies does not, of course, mean that in actual fact the notes that are offered are not indeed representations not of a student’s interpretations of a lecture but of the lectures themselves. For while some of the notes companies have their note-takers sign contracts that specify that they "cannot record lectures, write out the lecture verbatim or copy anything from handouts or directly off a chalkboard" (Levy 1999), the companies do not specify any standard on which notetakers would need to rely to direct their supposed interpretations.
In the Williams (1969) case, the judge also noted that there was "substantial similarity between the lectures and the notes published" (p. 731). In fact, at least one of the online notes companies encourages notetakers to "write down everything the teacher writes on the board —record all technical facts, names, dates, equations, diagrams, and examples" (Studentu.com website). Under these circumstances, the notetakers and providers of online notes companies will be hard-pressed to argue that the notes are original works. For as the Supreme Court argued in Feist v. Rural Telephone Service (1991), in order for a work to not be an infringement of some other work’s copyright, "a work must be original to the author," meaning that "the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity" (p. 345).
Claims that notes are a student’s interpretation on a site that advertises lecture notes as a useful educational tool represents nothing short of a contradiction in terms. For lecture notes, if they are be to be helpful to the students, must by definition offer an accurate representation of the professor’s words and viewpoints. Any other conclusion would not make sense on the basis of the fact that a teacher does not deal in ideas and facts as such but in very specific representations thereof, tailored towards the audience of students in very precise ways.
Moreover, even if the lectures would not be copyrightable, then notetakers selling notes of lectures to online companies may still be violating the copyrights of the fixed materials that teachers use in their lectures, for the latitude that is granted in the educational setting of the classroom on the basis of the fair use specifications of the 1976 Copyright Act would no longer apply (Miller 1982:15). The 1976 Act states that there is no infringement of copyright in the case of a "performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction" (Title 17 §110). In other words, a teacher in a classroom can more liberally use copyrighted materials, but these cannot be used in like manner in writings, notes, and other fixed work based on the lectures. By implication, then, students selling and posting notes from a teacher’s lectures would the copyrights of fixed materials used by the teacher. And though the internet is a novel means of communication and data storage, it is not free from copyright protection and other legal issues and limitations (Amos and Kim 1998; Holmes and Levin 2000; Needham et al. 1998; Litman 1997). According to Needham and co-authors, for instance, "an educational institution may transmit a lecture over the Internet complete with copyrighted pictures to illustrate the lecture if the transmission is for students attending classes remotely" (Needham et al. 1998:264). Needless to argue that such fair-use provisions do not apply outside the educational setting.
3. Academic Freedom and Privacy
There are other avenues apart from copyright that can provide legal safeguards to our teaching and learning on the basis of principles other than those justifying property rights in authored works. Among the most central principles in the context of education is the right of academic freedom. And closely related thereto is the privacy right of the instructor.
Teaching and Academic Freedom
Academic freedom refers to the free pursuit of knowledge and the right to unfettered inquiry and dissemination of knowledge, including the absence of restraints and pressures that inhibit the freedom of scholars to study, discuss, and publish ideas and opinions. Academic freedom is not only an important educational principle, it has also been recognized in the courts as protected under U.S. law. In Sweezy v. New Hampshire (1957), for example, the United States Supreme Court ruled that a college professor could not be compelled to testify about the content of his lectures on the grounds that the freedoms safeguarded by the Bill of Rights and the Fourteenth Amendment are essential in the community of American universities. Specifically, Chief Justice Warren justified the court’s decision by stating: "The essentiality of freedom in the community of American universities is almost self-evident... To impose any strait [sic] jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation... Scholarship cannot flourish in an atmosphere of suspicion and distrust" (in Sweezy 1957:250). In the case of Keyishian v. Board of Regents of the University of the State of New York (1967), the same principle was expressed when the court stated that academic freedom is "of transcendent value to all of us and not merely to the teachers concerned... ‘The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools’" (Keyishian 1967:603; quoting Shelton v. Tucker 1960). More recently, in Regents of the University of California v. Bakke (1978, p. 312), the court also held that academic freedom "long has been viewed as a special concern of the First Amendment." In 1999, the U.S. Supreme Court again relied on the principle of academic freedom when Justice Stevens defended a dissenting opinion with reference to "the interest in protecting the academic freedom of university faculty members" (Central State University v. AAUP 1999, p. 1166).
The legal implications of a recognition of academic freedom are of several kinds. First, some experts have argued that the teacher exception to the copyright work-for-hire principle can be primarily derived from the principle of academic freedom. Indeed, in the previously discussed context of copyrighting lectures, Dreyfuss (1987) follows the Williams (1969) court in recognizing an academic tradition that supersedes provisions of federal copyright laws and argues that copyrighting should also apply in the academic community in which interests primarily pertain to the pursuit of knowledge. Thus, Dreyfuss states, "the concerns that flow from an intellectual commitment range far beyond the purely financial and may have only a fragile connection to economic expectations" (Dreyfuss 1987:604). Copyrighting, therefore, should extend "beyond [interests] that are purely financial" and include "interests in the quality and integrity of the scholarly works" (pp. 592-593).
Arguing for the copyrightability of lectures in educational settings on the basis of academic freedom also makes sense on constitutional grounds. For copyright is mentioned in the United States Constitution with explicit reference to scholarship and learning: "The Congress shall have power... [t]o promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries" (U.S. Constitution, article 1, section 8). The Supreme Court has also affirmed that the constitutionally guaranteed copyright is intended "‘for the encouragement of learning,’ and was not intended for the encouragement of mere industry, unconnected with learning and the sciences" (Baker 1879, p. 105, citing Clayton v. Stone & Hall 1829).
Furthermore, even if academic freedom is not accepted as a basis for copyright, it could still be relied upon to legally secure student and teacher rights in education. Dreyfuss (1987) and Meyer (1998), for instance, argue that academic freedom can be viewed in terms of the constitutionally protected freedom of expression guaranteed by the First Amendment. As such, it can be argued that not accepting the view that professors own the copyright to their works could cause their speech to be "impermissibly chilled" (Dreyfuss 1987:600). With the recent controversy over online notes companies, some instructors have indeed said that they do not wish the words of their lectures drawn out of the context of their classroom to be spread on the internet where they are available in much more unrestricted fashion. Therefore, also, instructors granting permission to post notes for their classes on the internet could lead students and other viewers of the posted notes to assume that notes posted on a website may have received —or should receive— approval of the instructor who teaches the class. This danger was already recognized by the Williams (1969) court, in which the judge argued that "[a]ny person aware of the cooperation given by other faculty members could reasonably believe that plaintiff had assisted in the final product" (p. 742).
Additionally, academic freedom could also be relied upon to justify, as Robert Gorman argues, the "law of unfair competition dealing with misappropriation" (Gorman 1963:1571). A provision based on unfair competition relies on the premise that the students who sell their notes and the companies that post them have "appropriated the fruits of [an instructor’s] labor" (Meyer 1998).
Finally, academic freedom can also be relied upon to legally protect teaching as a matter of privacy and publicity, an option that many legal specialists have defended (e.g., Kramer 1990; Shorr 1995; Zimmerman 1992; Lacey 1989; Rahimi 1995). This perspective emphasizes that academic freedom implies a recognition of the teacher’s autonomy in teaching, including an autonomy over how the lectures and the teaching materials are presented and a right of publicity over anything that is presented by others in explicit relation to the teaching assignment, including the selling and distribution of lecture notes by attending notetakers.
Teachers’ Right to Privacy
The right to privacy has a long history in U.S. law (Kramer 1990). In a seminal paper on the matter, Samuel Warren and Louis Brandeis (1890), argue that the privacy right is particularly important to be recognized under circumstances of modern society, when the protection of life has come to mean much more than merely protecting a person’s physical well-being (p. 196). The privacy right, the authors argue, secures for "each individual the right of determining, ordinarily, to what extent his thoughts, sentiments, and emotions shall be communicated to others" (p. 198). Interestingly, Warren and Brandeis relate the right explicitly to all kinds of personal expression, whether they be published (or fixed) or not: "The existence of this right does not depend upon the particular method of expression adopted... It may exist independently of any corporeal being, as in words spoken" (pp. 198-199). From a recognition of the privacy right follows that no one but the person who expresses a thought or produces a work has "the right to publish" (p. 199).
Applying a privacy right in the context of teaching would evidently be of great importance to the practice of unapproved postings of lectures notes. A perspective of academic freedom in terms of privacy and publicity makes sense in view of the fact that teachers and professors want to spread their knowledge as much as they can but always in a manner they judge to be appropriate and wise. As Dreyfuss (1987) argues, teachers have a stake in the reputational interest that "turns on how [their] work is presented to the public" (Dreyfuss 1987:605). Clearly, when lecture notes are posted without the teacher’s permission or even in explicit disregard of the teacher’s wishes, a serious condition of academic freedom is being violated. From a practical viewpoint, granting teachers a privacy right in their teaching would lead to develop and/or test appropriate state or federal laws. As Zimmerman (1992) aptly argues, "courts are quite capable of commodifying unfixed forms of expression by using instead such doctrines as the right of publicity and privacy protections against appropriations" (Zimmerman 1992:696).
4. Contract and Breach of Confidence
A possible downside to the previously suggested legal provisions that can be called upon to protect our teaching is that they posit the teacher in an adversarial relationship relative to the publishers and companies that provide unauthorized notes as well as (some of) their students. As such, these strategies may be helpful, but they can never be more than a necessary evil. To avoid the implied adversarial positioning of students and teachers, the option can be suggested to protect our education legally in terms of breach of confidence, trust and contract based on principles that already guided the Abernethy (1825) case. This option has the advantage of being both feasible and practical in the context of the academic community and, additionally, of not having to rely upon a separation between students and teachers. Instead, it presents a way to protect the relationships that exist between students and teachers relative to unwanted intrusions from third parties.
Breach of confidence or trust was a central principle in the Abernethy (1825) case and similar judgments that were connected to educational values pertaining to academic freedom, privacy, and implied contract. In Prince Albert v. Strange (1849), for instance, rights of teachers were protected as part of "the more general right of the individual to be left alone" (Prince Albert 1849). The implied contract between students and their teachers involves rights and duties on the part of both parties. Implied contract in the Abernethy (1825) case was related to the specific setting of the classroom in an educational institution. The judge referred to the fact that students attending the lectures had signed their name in a book specifically available to show classroom attendance and that they had paid a fee to attend the lecture (p. 1313). Therefore, the lectures were considered as clearly "not in any way open or accessible to the public" (p. 1315).
Similarly, in Caird v. Sime (1887), the court concluded that "where the persons present at a lecture are not the general public, but a limited class of the public, selected and admitted for the sole and special purpose of receiving individual instruction, they may make any use they can of the lecture, to the extent of taking it down in shorthand, for their own information and improvement, but cannot publish it" (pp. 347-348). Importantly, as I stated before, the restricted and specific nature of the educational setting of classroom teaching has also been recognized by the federal lawmaker in justifying certain provisions and, especially, certain exceptions in the 1976 Copyright Act (see the fair-use exceptions for teaching purposes as mentioned in §110 ["in a classroom or similar place devoted to instruction"] and §107 ["copies for classroom use"]).
Recently, legal experts have applied the breach of confidence argument to teaching and the rights to instructors’ works (e.g., Dreyfus 1987; Vickery 1982; Donat 1997; Chong 1998). Dreyfuss (1987), for instance, argues that although the copyrights of lectures are uncertain, publishing lectures by attendants would be held liable as "unauthorized use" under state laws related to breach of confidence and contract. Confidentiality in teaching and research is implied by the collegiality between professors and teachers (to not copy their works from one another) and by the specific relation between student and teacher (in matters of teaching) (Dreyfuss 1987:634).
Finally, as the judge in Abernethy already realized, a provision on breach of confidence would hold "particularly where the contract is written" (Abernethy, p. 210). Thus, breach of confidence could be more easily invoked in the case of online lecture notes if and because explicit university policies are in place that detail and protect the mutual rights and responsibilities of teachers and students, including the rights and duties that pertain to teaching and learning during classroom lectures as important matters of academic integrity. Contracts could also be worked out by individual instructors when they arrange the requirements and agreements that govern their classes, for instance by including specifications in their teaching syllabi. In any case, whether contract is implied or explicit, guided by university policy or per individual class, breach of confidence provisions more clearly posit the adversaries of teaching outside the academic community.
5. Putting Law Into Practice: Responding to Notes Companies
Since lecture notes companies began to appear on the internet in the Fall of 1999, the phenomenon has received increasing exposure and attention in the media and the college and university community. Although there has been some dissension on the issue, the general response has been very clearly opposed to the distribution of unauthorized lecture notes. Many professors and teachers have spoken out on their educational concerns and have relatedly argued for appropriate policies to protect their rights and responsibilities as qualified instructors. Strikingly, also, the negative response that came from the student community was overwhelming. This has been especially clear from the many critical reports that have appeared in the college press and the editorials that warned against the dangers of unauthorized notes (e.g., Brown Daily Herald 2000, Yale Daily News 2000). Most arguments from teachers and students against this aspect of the commercialization of their education relate to the quality of instruction and the respectful relationships students and teachers should be able to enjoy. More organized efforts, moreover, have been taken by professional associations, such as the American Association of University Professors (AAUP), which includes teachers’ rights over their lecture notes in its "Statement on Copyright" (AAUP website). Additionally, private initiatives have also sought to coordinate efforts against unauthorized notes companies. The current author, for example, has been conducting a website campaign in order to organize information on and educational opposition against commercial notes companies (see "Free Education Now!" website).
Several colleges and universities across the country have developed —or are in the process of developing— policies that prohibit the sale of lecture notes altogether or that prohibit the sale of notes without the instructor's permission. The latter policies are typically based on intellectual property rights and are the most common type of regulation. Policies that ban the sale of unauthorized lecture notes exist at the University of California campuses, Iowa State University, Michigan State University, University of Vermont, and others. The policy at the University of California at Berkeley, for instance, states that "[s]elling or distributing course lecture notes, handouts, readers or other information provided by an instructor, or using them for any commercial purpose without the express permission of the instructor" is an academic violation (UC-Berkeley policy online). A similar policy at Iowa State University states that "[s]tudents may take written notes or make other recordings for educational purposes, but specific written permission to sell the notes or recordings must be obtained from the presenter" (Iowa State University website).
Other, stricter policies are based on academic honesty and the regulation of commercial relations of students and faculty. Typically, these policies ban the practice of notes companies altogether. Such policies exist at Yale, Harvard, and Princeton. For example, the Harvard University policy specifies that "[s]tudents who sell lecture or reading notes, papers, or translations or who are employed by a tutoring school or term paper company... may be required to withdraw" (Harvard University website). Similarly, the policy at Princeton University states that "[s]tudents may not engage in the publication or sale of abstracts or transcriptions of the lectures or required reading in any course of instruction in the University" (Princeton University handbook).
These various policies have advantages and disadvantages. Policies based on academic integrity clearly frame the issue in a purely educational context related to instructional goals and academic conduct. For example, Richard Brodhead, the Dean of Yale College (where an academic honesty policy exists), condemned the notes companies as "a deeply troubling commercial intrusion into our classrooms, an improper exploitation of the intellectual property of the instructors, and in many instances a misrepresentation of courses" (Brodhead 2000). But policies based on copyright —while they allow for the distribution of notes under restricted circumstances that may not always avoid all problems— have a solid footing in our legal system, whereas policies based on academic honesty lack such a legal ‘bite.’
Though no court has in recent years decided on the legality of the sale of lecture notes and the practices of notes companies, in February 2000, an Alameda County Superior Court judge issued a permanent injunction barring the lecture notes company ‘R&R Corporation’ from operating on any University of California campus (Benjaminson 2000). It is no coincidence that this decision was reached in the state of California, because, as mentioned before, California copyright regulations also recognize rights over works that are not fixed in a tangible medium of expression (California Civil Code section 980).
In the meantime, on September 22, 2000, California Governor Davis signed a law that amended the State Education Code to prohibit the unauthorized posting of class lecture notes on commercial websites. The law becomes effective January 1, 2001. The law gives to instructors "an exclusive ownership in any presentation... in a classroom, laboratory, library, studio, or any other place of instruction, performance, or exhibition" (State of California, AB 1773).
Finally, this analysis and its various considerations are also relevant in the context of distance education programs. Such programs offer online courses whereby students and teachers are no longer in the same physical space but communicate with one another over the internet. Distance education programs are clearly on the rise in accredited colleges and universities across the country and, additionally, they are also offered by so-called virtual colleges. It is primarily in the context of distance education at accredited institutes of higher learning that there has been debate on the relative merit and problems of this new form of instruction (see Academe 1999; Dwyer and Li 2000; Martin 1999). Among the questions that have been raised, the potential lack of faculty input has been suggested relative to the fact that the decision to offer distance education may primarily come from the administrative offices of colleges and universities. Besides technical and practical uncertainties over the implementation of online courses, it is also unclear what principle primarily drives distance education (market forces or educational objectives) and who has final decision-making power and oversight over such programs. A particularly acute question is also how technicians and teachers can work together to offer appropriate programs and what the consequences are of such programs, for instance, in terms of quality of student learning and employment opportunities for instructors.
Distance education programs have also led to concerns in matters of intellectual property and copyright policies. The central issue is that with the offering of a course over the internet certain protections that are typical for classroom instruction may be lost as the words and wisdom of the instructor go out into the world of cyberspace, the boundaries of which are unclear. In the context of online notes companies, I have discussed how similar concerns were raised in terms of the lack of control by instructors and the potential chilling effects of the unsupervised and unauthorized distribution of their lectures. The problem of intellectual property in the case of distance education is that instructors and professors have traditionally been granted more protections by their colleges and universities to their research efforts (in the form of books and articles) than to their teaching. It has happened in the past, for example, that colleges have used faculty-created video recordings of classes without the knowledge of the instructor (Martin 1999:35).
Because of the new reality created by internet-based instruction, new policies have been discussed and developed. The American Association of University Professors (AAUP), for example, has developed elaborate guidelines on the proper administration of distance education programs (AAUP website). Amongst other things, the AAUP recommendations specify that instructors should retain primary responsibility for determining the policies and practices of distance education and that the materials created by instructors for use in distance education courses should receive the same copyright protections (under the work-for-hire doctrine and its exceptions) as do other faculty creations.
In the meantime, several colleges and universities have already changed their polices to accommodate distance education (Martin 1999). Typically, these policies state that distance education programs must fit the educational objectives of the school and that personnel will be trained to provide the necessary technical support. Importantly, these policies also provide that online courses and their various accompanying materials are the property of the instructor and not of the institution where the course is offered. Among the universities that already have explicit policies on distance education in place are the University of Texas (Martin 1999:35) and San Diego State University (SDSU website). Many other colleges and universities, however, still need to develop appropriate policies on distance education, so that the intellectual property conditions of their instituted practices remain uncertain.
This article was not intended to defend a legalistic viewpoint that assumes that the legal issues involved with e-learning and other aspects of teaching are exhaustive of their normative dimensions. On the contrary, education can derive its merits only from substantive grounds other than the legality involved. However, the law can be used as an important and powerful instrument to defend rights and principles, specifically a legally authoritative protection of lectures against the unapproved online distribution of lecture notes. Copyrighting lectures, relying on the right to academic freedom, or otherwise legally safeguarding our rights to teach and learn are no argument, but such legal provisions can be a useful instrument to protect our rights within a constitutionally guaranteed framework.
In sum, the following three provisions can be applied to protect student-teacher relations and their rights and duties in teaching:
1) Copyright protections can be ensured, based on the teacher exception to work-for-hire, in one or more of several ways: a) Lectures can be copyrighted by federal law when they are considered as specific, fixed forms of expression; b) Fixations of lectures can be copyrighted by federal law; c) Lectures and/or fixated lectures can be granted common-law copyright protection by developing or testing appropriate state laws, university policies, and/or instructor guidelines; and d) Copyright can be granted to materials accompanying and used in lectures.
2) Teachers’ constitutionally protected academic freedom can be relied upon in a variety of ways: a) To grant copyright to lectures, fixated lectures, or accompanying materials (as above); b) To invoke First-Amendment protections of free speech; c) To rely on provisions of unfair competition; and d) To secure the teacher’s privacy and publicity.
3) Breach of confidence is involved in distributing and posting lecture notes by implication of an implied contract (of trust) or written contract between students and teachers as specified by university policies or teacher guidelines.
Of course, in addition to the various legal issues that I addressed in this article there are still many practical concerns and technicalities involved in securing copyright or other legal provisions at a practical level. For example, universities that have explicit policies against the sale or unauthorized sale of lecture notes have sent cease-and-desist letters to companies that violate these policies. But, in response, the companies have not always decided to terminate their practices. In any case, it seems clear that without an explicit policy at the state or federal level, an appropriate judgment by the courts, and a clear and useful university policy, no organized response will be effective to protect our education against the invasion of online notes companies and similar intrusions. Yet, it is equally true that with appropriate legislative and judicial responses and with a solid university policy that is respectful of students and teachers alike, our legal system does accord means that can be applied to preserve instructors’ rights to teach and students’ rights to learn in an environment freely and decidedly committed to the essence of education in our society.
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