Is UC Berkeley’s Lecture Note Restriction an Attempt at Copyright Monkeyshines?

Ever heard of the infinite monkey theorem? Basically, if a monkey randomly hits a typewriter's keys for an infinite time, it is theorized that the monkey will produce the works of Shakespeare or other great authors.  In the Simpson, the character, Mr Burns, states the theorem this way:

"This is a thousand monkeys working at a thousand typewriters. Soon they'll have written the greatest novel known to man. Let's see. (reading) 'It was the best of times, it was the "blurst" of times'? You stupid monkey!"

I don't know if this would really work for monkeys, but what if you had a classroom of highly intelligent students writing as a collective? More than likely, they'd produce something useful, even if they were just taking lecture notes. Let's call this the infinite student theorem.

Under both theories, there's the issue of ownership. For the monkey, the issue doesn't seem so cut and dry. Does the monkey or its zookeeper own the resulting work? As for the infinite student theorem, one might peg ownership as easily answered. Ownership belongs to the transformative authors - the students. Correct? Not according to the University of California, Berkeley.

Is Your Note Taking Hand Leading You Down an Infringement Path?

As reported by The Guardian, UC Berkeley's policy forbids: 1) note sharing beyond students currently enrolled in the same class; and 2) reproducing, sharing, or distributing notes for commercial purposes or compensation. The policy hangs its hat on protecting instructor copyrights. As set out in UC Berkeley's policy statement (effective January 10, 2012):

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.

(emphasis added)

In enforcing this policy, the University has gone so far as to offer its instructors a cease and desist letter template to be used against offending students.

The Guardian pokes holes in the policy with the observation that professors, while owning IP rights in personal notes, books, and published articles, lack rights in notes taken by students. Student notes, though loosely comprised of a professor's words, are generally not recorded verbatim. Instead, the notes contain the note taker's filtered and rephrased commentary along with his or her personal observations and inferences.

Huh? Taking Lecture Notes Is a Violation of the Law?

But there is more to this than just copyrights. The blog, Freedom for IP, points out that UC Berkeley's policy is an implementation of AB 1773, which amended the California Education Code and added sections 66450 - 66452. Section 66450 states:

no business, agency, or person, including, but not necessarily limited to, an enrolled student, shall 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. This prohibition applies to a recording made in any medium, including, but not necessarily limited to, handwritten or typewritten class notes.

The motive behind section 66450 appears to be third party access to class notes, with those third parties then selling the notes for profit.  Along with this motive, section 66450 must be balanced against section 66452(a), which states that nothing "in this chapter is intended to change existing law as it pertains to the ownership of academic presentations." (e.g., federal copyright law's "fixed" medium requirement and the fair use defense).

The Courts Provide a Couple Notes on Note Taking

Though the issue seems novel, the copyrightability of student notes has been touched upon by the 11th Circuit. In University of Florida v. KPB, Inc. (d/b/a  A-Plus Notes), 89 F.3d 773 (11th Cir. Fla. 1996) [enhanced version available to subscribers], the University of Florida claimed "statutory copyright infringement pursuant to 17 U.S.C. § 101 et seq., as well as common law copyright infringement, of written and oral components of its professors' lectures in fourteen courses taught during the 1990 spring semester, and one course taught in the 1989 fall semester." On appeal, the 11th Circuit held that the evidence was competent to support the jury's verdict for A-Plus Notes on the copyright claims.

Faulkner Press, L.L.C. v. Class Notes, L.L.C., 756 F. Supp. 2d 1352 (N.D. Fla. 2010) [enhanced version available to subscribers] provides a more expansive discussion. In Faulkner, a professor's copyright was asserted against Class Notes, which sold note packages to University of Florida students. The professor's study and practice questions were deemed copyright protected. However, fair use was offered as a defense. The defendant argued:

The study guides [comprised of lecture notes] are educational and meant as a supplement (not a replacement) to students attending lectures and reading their own course materials. While the commercial nature of the study guides may weigh slightly against defendants, this commercial nature does not bar a finding of fairness.

... The copyrighted works at issue are various expressions of facts. The facts are set forth as "questions" (in the e-textbooks and as film study questions) or as lecture highlights. Plaintiff's work is clearly informational and Defendants' use should therefore weigh in favor of a fair one. Indeed, "with respect to a work more of diligence than of originality . . . there is a greater license to use portions of such a work under the doctrine of fair use than it would be if a creative work had been involved." Defendants' Response in Opposition to Plaintiff's Motion for Partial Summary Judgment, PRESS v. CLASS, 2008 U.S. Dist. Ct. Motions 610236 (N.D. Fla. Apr. 8, 2010).

Conversely, the plaintiff argued:

Defendants' publications exist primarily for commercial gain and are not the least bit transformative. In fact, Defendants' publications are designed specifically to repeat as accurately as possible the educational curriculum Professor Moulton offers, such that students do not have to go to class or apply themselves to the assignments in the textbook; every semester for every section, Defendants slavishly copied or closely paraphrased all of the test questions about films which Professor Moulton used in his classes and provided the answers as well, and Defendants slavishly copied or closely paraphrased all of the lecture outlines Professor Moulton showed to his students (and Defendants' publication included nothing else, such as criticism or commentary). As one student note taker explained, "the idea is if somebody didn't attend lecture, by reading my notes it would be like they were there because they got the full information." Plaintiff's Response to Defendants' Motion for Partial Summary Judgment and Statement of Material Facts, 2008 U.S. Dist. Ct. Motions 610236 (N.D. Fla. Apr. 12, 2010).

The Faulkner court ultimately denied summary judgment on the fair use defense, holding that a genuine issue of fact remained "as to whether inclusion of the questions, as well as the lecture summaries, within Class Notes' note packages constitutes fair use."

Is UC Berkeley Just Monkeying Around?

UC Berkeley's policy seems heavy handed if not misguided. The finer legal points aside, the policy feels both draconian and slightly bizarre, especially when stretched beyond higher education. Does the professor-note taker scenario differ from all other speaker-note taker scenarios? It's easy to see the policy's applicability to secondary education and commercial seminars, but what about journalistic note takers, which then carries us into the realm of Constitutional freedoms (in fact, The Guardian article offers that "it is considered freedom of speech if students want to share their notes.")? Whatever the answers, one can't help but wonder: If a monkey typed for an infinite number of years, would that monkey eventually come up with a similar note sharing policy?

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