Intellectual Property Rights at Stake in Fla.

Published June 1, 2008

A lawsuit filed in a Gainesville, Florida U.S. District Court could determine whether university professors can claim exclusive rights to their lecture notes.

The plaintiff is Faulkner Press, which publishes required class material of University of Florida professor Michael Moulton as a $90 CD-ROM. The publisher’s complaint alleges Class Notes, doing business as Einstein Notes, distributes “for profit printed materials copied slavishly or derived directly” from Moulton’s lectures.

Faulkner aims to block Class Notes from continuing to sell notes purchased by the company from students attending Moulton’s lectures. The firm is also asking to be compensated with any profits from the sale of Moulton’s notes, which it says will be donated to charity.

Careful Steps

Faulkner’s complaint outlines the careful steps Moulton, a professor of wildlife ecology and conservation, took to protect what he views as his intellectual property.

During a series of class lectures in 2007 and 2008, Moulton recorded the “high points” of each lecture “by hand with pen and paper” during class, intending to record his lectures in a “tangible medium.”

This step is crucial to the complaint, as federal law permits people to copyright the expression of ideas but not the ideas themselves.

James Sullivan, a lawyer representing Faulkner Press, explained, “As a matter of law, a mere summary of a work, without more, is a derivative work of the original work. The copyright holder of a work has the exclusive right to create and distribute derivative works of that work.”

In order to gain rights over his works, Moulton obtained a waiver from the university, which would have had a prior claim. He then sought and received a certificate of registration from the United States Copyright Office. Moulton allowed his students to take notes, considering theirs to be acceptable derivative works because they are not for profit and are necessary for completion of the class.

Moulton, who is not a plaintiff in the case, did not reply to inquiries for this story.

‘Chilling Effect’

Faulkner maintains Class Notes had no legal right to profit from the derivative works.

“A professor’s lectures deserve no less copyright protection than the music of Britney Spears or the writings of Stephen King or the movies of the Coen brothers,” said Sullivan. “For the professoriate and for university administrators, this lawsuit will also clarify who owns the intellectual property that is becoming the ‘content’ of the emerging world of online education.”

Thomas Bean, who is named as a defendant, declined to be interviewed for this story. However, an individual close to Class Notes and familiar with the thinking behind the company’s legal defense characterized the lawsuit as “overreaching” and said it shows the U.S. copyright office “does not do due diligence” on copyright claims.

The individual said a decision in favor of Faulkner Press could have a “chilling effect” on the lecture note industry.

Murky Prospects

Timothy B. Lee, an adjunct scholar at the Cato Institute, does not believe the results will be sweeping, whichever side prevails. “It depends a lot on the grounds,” he said. “I doubt the court will come down with a general ‘right to prevent people from taking notes.'”

Sullivan agreed, saying, “Commercial note-taking companies are welcome to continue doing business in a legal fashion, which means that they will need the permission of a professor before copying and reselling that professor’s intellectual property.”

Sullivan says the case will not affect the related industry of study guide services. “CliffsNotes will not be affected by this lawsuit,” he said. “CliffsNotes provide substantially more than mere summary.”

Textbook Complaints

Meanwhile, a separate controversy concerns the ethics of Faulkner publishing textbooks by other University of Florida professors, some of which the professors require their students to purchase. A faculty committee is reviewing the question of whether professors should be able to profit from the texts they assign to students. Moulton is not in violation of any university rules.

Although Lee says copyright and fair use can sometimes be frustratingly vague, he is confident lawsuits such as these will eventually lead to better law.

“The good thing about fair use is that there’s an element of common law evolution [which should] come to good conclusions.” Lee said, “I wouldn’t want Congress to get involved. The court will pretty much do a good job.”

William Beutler ([email protected]) writes from Washington, DC.