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Purloining Faculty Intellectual Property: CourseHero, Sparknotes, Cramster, and the General Problem of Using Student Codes of Conduct to Enforce Institutional Copyright Policies Dr. James Lancaster, Robert Terrell, J.D. Dr. Diane Waryold Legal Issues in Higher Education The University of Vermont October, 2013 2
Outline A. Introduction and History of Copyright and Intellectual Property Issues 1. The first copyright law in the United States was passed in Connecticut and titled “An Act for the Encouragement of Literature and Genius.” (Rudd, date retrieved from copyright.gov/history/dates.pdf). Since that time, protection of what we have come to call “intellectual property” has become an increasing concern. Emergence of the World-­‐wide Web (WWW) as well as the proliferation of personal electronic technology has raised challenges not previously contemplated or addressed – especially in academic communities where knowledge is that currency of exchange. Material placed on-­‐line legitimately or without permission or attribution frequently is replicated on various web locations and eventually becomes impossible to remove. The working assumption today must be, once intellectual material are posted on line and hence, are “out there”, it is out of there – there truly is no calling back such postings. 2. The academy was created out of the need to acquire and access knowledge. Inherent in the finding of US colleges and universities is the concept that knowledge should be shared. The digital world has taken the sharing/transmission of knowledge from a controlled classroom setting to an unrestrained world (the WORLD WIDE WEB). 3. No one owns the Internet, and thus, there is a public perception that everything, ALL content, posted on the WWW falls under fair use. B. Case Scenario A senior tenured faculty member from the department of Chemistry phones the university conduct administrator alleging that a student in his class has posted on a commercial online sharing site, (without permission), lecture notes, homework solutions to textbook assignments and copies of quizzes that were provided to the individual for her use as a student enrolled in that class during the previous semester. In the course syllabus, the faculty member had explicitly stated, “course materials may not be shared with anyone beyond current classroom use”. While researching his material for citation on line, the faculty member has discovered that the student in question apparently has submitted these materials to Course Hero for undetermined purposes. The professor is outraged because when he confronted the student with these allegations, the student stated “that she had posted these materials as a way to offer “just” access by all students and that good professors provide their materials digitally. 3
Furthermore, “the student stated that professors are lazy and use the same materials every semester, the best professors don’t care how students study and access information. There is nothing wrong with sharing information”. The professor shares with the conduct administrator that he has been teaching for 24 years and has worked hard to perfect his classes. The content that he shares with his students should be protected as it is his “life’s work”, and he adds-­‐ “these are my notes and are a compilation of multiple contributor’s works-­‐ well known researchers and scientists I have studied and worked with in the field. She has stolen my work and has cheapened and insulted the profession.” How would you advise the faculty member to address his concerns? Consultation with university counsel. In this session, we discuss the particular problems posed in unpermitted use of faculty intellectual property on campus and in the wider electronic universe by students. We focus particularly on these occurrences in relationship to a growing number of pay per view, commercial “study”, “homework” and “learning” sites. While we acknowledge that technology cannot be reversed or prevented, nor should it, it is our purpose in this session to identify challenges related to such usage and to address how law and policy exist or can be written to deal with these concerns on the campus and in the courts. C. Legal Definitions and the Law 1. Copyright: a bundle of legal rights granted to the creator of an original work of authorship that is fixed in any tangible medium of expression. Copyright protects the form or manner of expression, and not the underlying ideas or facts. Under the U.S. Copyright Act (Title 17 of the United States Code), the copyright owner, subject to certain exceptions, has the exclusive right to reproduce, distribute, perform, publicly display and adapt the copyrighted work. 2. Copyright infringement: in general, infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner (or legally recognized exemption). 3. Fair Use: a statutory doctrine that exempts certain uses of copyrighted works from the exclusive rights of the copyright owner. A “fair use” of a copyrighted work “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” is not an infringement. In determining whether a particular use is “fair”, the factors considered include: the purpose and character of the use, the nature of the work, the amount used, and the effect of the use on the market for or value of the copyrighted work. 4
4. Intellectual Property: an umbrella term that refers to intangible property derived from creations of the mind, including copyrights, patents, trademarks and trade secrets. 5. DMCA (Digital Millennium Copyright Act): Federal statute that established a procedure for copyright owners to notify internet service providers (ISPs) that the owner’s copyrighted material is being distributed by the ISP without permission. ISPs that “take down” third party materials in response to a proper notice are not liable as infringers for prior distribution of the works. D. The student culture and protection of intellectual property 1. Current generation of traditional age college students (18-­‐24 years old) is the first generation of digital natives. Students have become accustomed to sharing everything via technology and the WWW. 2. (78%) of teens (12-­‐17 yrs. of age) now have a cell phone, and almost half (47%) of them own smartphones. That translates into 37% of all teens that have smartphones, up from just 23% in 2011. 23% of teens have a tablet computer, a level comparable to the general adult population. 95% of teens use the internet (Lenhart, 2007). 3. As of May 2013, 91% of American adults have a cell phone, 56% have a smartphone, and 34% have a tablet computer. As of January 2013, 26% of American adults own an e-­‐book reader (Pew 2013, Trend Data on Technology, Teens and Adults). 4. 93% of teens have a computer or have access to one at home. Seven in ten (71%) teens with home computer access say the laptop or desktop they use most often is one they share with other family members (Pew 2013, Trend Data on Technology, Teens and Adults). 5. Studies demonstrate 59% of teen’s aready share content on the web (Pew 2013, Trend Data on Technology, Teens and Adults). o Experts indicate competition for grades continues to drive a growing cheating problem (Perez-­‐Pena, 2012). Many studies suggest that students are ignorant of policies related to misuse of academic materials o Many students use commercial services such as CourseHero, Sparknotes, Chegg, PostYourTest.com and others to freely share faculty course notes, examinations, answers and other faculty property intended for instructional purposes. E. The “real”questions as they relate to this current generation of students – 1. Is this a valid learning strategy? 2. Is it cheating or stealing of faculty intellectual property? o Material sometimes involves only notes of faculty member provided to students; 5
o May involve notes taken by students during course; o At times may include a faculty member’s entire course structure including exams and exam answers. F. What do commercial study/homework “services” advertise to students? o “Today’s Most Popular Study Guide” (Sparknotes) o “Helping Students Learn More Effectively” (Course Hero) o “Homework Help Services” (Cramster) o “A Website to Exchange Educational Materials (PostYourTest.com) o “ The Student Hub” (Chegg-­‐ own Cramster and Notehall) o “Study Smarter, Not Harder” (Koofers) G. Accountability Issues 1. How may usage of these services by students, including submission of faculty materials, violate existing laws or institutional policies? These can be academic or behavioral in orientation 2. Do institutional policies in either type of code “reach” these issues? 3. Conduct policies on theft 4. Academic integrity breaches 5. Specific copyright or intellectual property policies 6. Violations of the Digital Millennium Copyright Act (DMCA) H. Legal Strategies -­‐ Strategies depend on; o Institution and course-­‐specific policies o What is posted (and how) § Faculty notes and handouts § Tests/problem sets § Answers § Tapes of lectures § Student notes § Student essays o How it was obtained o How the material is used -­‐ Possible approaches o Copyright o Contract o Trademark o Right of publicity/defamation o Statutory violations -­‐ Copyright o Is the material protected? o Is the use infringing? o Is there a fair use defense? o DMCA take-­‐down notice § Who should send? 6
o Infringement suit § Against website or student -­‐ Contract o Student breach of institutional policies o Can you identify the offender? § Student discipline as contract • Notice, clarity and adherence to process -­‐ Trademark 1. Does the site use the institution’s name or logos? 2. Is there a likelihood of confusion over association or sponsorship? i. Cease and desist letter-­‐ Take Down Notice ii. Litigation -­‐ Right of Publicity/defamation o Does the site trade on a faculty member’s name or likeness? o Does it depict the faculty member in a false light? -­‐ Statutory Violations o Computer fraud and abuse o FERPA? o Audiotaping statutes I. How aggressive/protective should an institution be? 1. How big is the problem or offense? 2. Is it likely to continue or grow? 3. Do the benefits exceed the costs? 4. The danger of overreaching. 5. How does one address these behaviors proactively and reactively? 6. Design appropriate policies (then follow them)! 7. Appropriate syllabi statements related to expectations and policies-­‐ provide examples. Setting expectations for learning at the beginning of courses. 8. Legal strategies 9. Remember: prosecution is “easy”, prevention requires more intensive effort, but promotion of ethical behavior, hardest of all, may be the most effective, long-­‐term strategy. 7
General Resources Chapman, P. Professors publish guide to copyright issues of multimedia projects. November 17, 2010, retrieved from http://chronicle.com/blogs/wiredcampus/professors-­‐publish-­‐guide-­‐to-­‐
copyright-­‐issues-­‐of-­‐multimedia-­‐projects/28254 Chaker, A. Do study sites make the grade? April 9, 2009, retrieved from http://online.wsj.com/article/SB123923520520403259.html Cornell University. Copyright information center. September 4, 2013, retrieved from www.copyright.cornell.edu Cornell University. Digital Literacy Resource. September 4, 2013, retrieved from www.digitalliteracy.cornell.edu Foderaro, L. Psst! Need the answer to no. 7? Click here. August, 2013, retrieved from http://www.nytimes.com/2009/05/18/education/18cram.html Lenhart, A, et al. Teens and social media -­‐ Pew/Internet & American Life Project, December 19, 2007, retrieved from http://www.pewinternet.org/~/media/Files/Reports/2007/PIP_Teens_Soci
al_Media_Final.pdf.pdf McGrail, E, & McGrail, J. P. (2010). Copying right and copying wrong with web 2.0 tools in the teacher education and communications classrooms. Contemporary Issues in Technology and Teacher Education, 10(3), 257-­‐274. Perez-­‐Pena, R. Studies find more students cheating, with high achievers no exception. September 7, 2012, retrieved from 8
http://www.nytimes.com/2012/09/08/education/studies-­‐show-­‐more-­‐
students-­‐cheat-­‐even-­‐high-­‐achievers.html Pew Internet. Trend data teens and adults. September 16, 2013, retrieved from http://www.pewinternet.org/Static-­‐Pages/Trend-­‐Data-­‐%28Adults%29.aspx Course Hero. www.coursehero.com Cramster. http://www.chegg.com/homework-­‐help/ Note hall. http://www.NoteHall.com has moved to http://www.chegg.com/homework-­‐help/?getStarted=2 PostYourTest. http://PostYourTest.com Sparknotes. http://www.sparknotes.com/ Resources on Legal Strategies Policies and Advice on Course Note-­‐Taking and Materials Copyright Advice on Lecture Notes | D2L (University of Arizona, with sample DMCA notice) http://campuspol.chance.berkeley.edu/policies/coursenotes.pdf (University of California, Berkley) http://www.ucsdguardian.org/component/k2/item/25352-­‐striking-­‐a-­‐wrong-­‐
note#.UjHWr9K-­‐qj1 (News article on Berkley policy) Sample Language for Course Syllabi General copyright statement that may be placed on a syllabus or course website: “Copyright (year) (author’s name). All federal and state copyrights reserved for all original material presented in this course through any medium, including lecture and print. Any copyrighted material provided in this course is for your personal, noncommercial use and may not be copied and distributed to others without the prior permission of the copyright owner. Individuals are prohibited from being paid for taking or transferring their class notes without the express written permission of (faculty member’s name).” 9
Statements about lectures that could be included in introductory materials or given at the first lecture: Most restrictive (adapted from statement prepared by Georgia Harper) “My lectures are protected by state common law and federal copyright law. They are my own original expression [and I record them at the same time I deliver them.] You are authorized to take notes in class, however the authorization extends only to making one set of notes for your own personal use and no other use. You are not authorized to record my lectures, to provide your notes to anyone else, or to make any commercial use of them without my express prior permission.” Less restrictive “My lectures are my own original expression and they are protected by state common law and federal copyright law. You are of course authorized to take notes in class for your own personal, noncommercial use. You may share them with other course participants, but you may not distribute them to anyone else without my prior permission. If you wish to record my lectures, you must ask me in advance and I will generally allow it. However, any such recordings are solely for the personal, noncommercial use of you and other course participants and they may not be copied or distributed to anyone else without my prior permission.” Sample Policies OFFICE OF GENERAL COUNSEL November 9, 2011 MEMORANDUM
To: From: Subject: Lawrence White VP & General Counsel University of Delaware 124 Hullihen Hall Newark, D elaware 19716-­‐
0101 (302) 831-­‐7361 (Telephone) (302) 831-­‐3055 (Fax) (267) 250-­‐3154 (Cell) lawwhite@udel.edu Members of the Faculty, University of Delaware Larry White COPYRIGHT INFRINGEMENT NOTICES FOR USE IN COMBATING THE UNAUTHORIZED POSTING OF YOUR TEST QUESTIONS, NOTES, AND OTHER CLASSROOM MATERIALS ON 10
WEB SITES SUCH AS NOTEHALL.COM AND COURSEHERO.COM _________________________________________________________________________________ This memorandum updates and expands upon one the General Counsel’s Office circulated two years ago. There are many commercial web sites that allow students to register, pay a fee, and download lecture notes, test questions, and other materials from courses taught by University of Delaware faculty members. One recent addition to the list is Notehall (www.notehall.com), which hires UD students and pays them to take notes in class and post them online. The practice of commercializing course materials potentially violates the Digital Millennium Copyright Act. Faculty members are entitled to prohibit the practice if they choose to do so in order to protect their class lectures, test questions, and other course materials as copyright-­‐protected intellectual property. That can be done in any of three ways. First, a faculty member can contact the General Counsel’s Office and request our assistance in sending a so-­‐called “take-­‐down notice” to the offending web site. In our experience, each of these web sites is quick to remove material when the site is informed that the material in question is copyright-­‐protected. Second, the faculty member can send a take-­‐down notice himself or herself. This involves two steps: • Go to the web site in question and extract the name and address of the site’s “copyright agent.” On the Notehall site, that information can be obtained by clicking on the “Terms & Conditions” link on the bottom right-­‐hand side of the home page, then surfing about three-­‐fifths of the way down the next page to a section headlined “Reporting Infringement.” On the Coursehero site (www.coursehero.com), the process is simpler: just click on the link at the bottom of the home page labeled “Copyright Notice” and the name of the copyright agency instantly pops up. • Send, via email or first-­‐class mail, a take-­‐down notice that comports with the requirements of the Digital Millennium Copyright Act. Those requirements are spelled out clearly on the copyright agent’s page of each site. A model take-­‐down notice is appended at the end of this memorandum; you can use that model as your starting point and plug in pertinent information describing the particular web materials you want taken down. 11
Third, you can include in your syllabus a notice to the effect that your lectures and other course materials are copyright-­‐protected and students are not authorized to commercialize the notes they take in class, the test questions they answer, or any other course-­‐related materials. Were a student to violate that rule, the student would be subject to discipline under the Code of Conduct in UD’s Student Guide to University Policies (http://www.udel.edu/stuguide/11-­‐12/code.html). Model language for inclusion in course syllabi is also appended at the end of this memorandum. These note-­‐commercialization sites can be frustrating to deal with. Like many nooks and crannies of the web, these sites pop up with frequency and disappear just as quickly. Today’s market leaders—Coursehero, NoteHall—are just the tip of an iceberg of similar sites, each with its own copyright agent and arcane procedures for submitting take-­‐down notices. The issue of how to protect faculty members’ intellectual property rights in dealing with these sites is very much on the minds of college and university attorneys all over the country and is a frequent topic of discuission on the higher education lawyers’ listserv. It takes a tremendous amount of time and effort to monitor all these sites and write the take-­‐down notices, and most universities would say if pressed that it’s hard to police practices like this. Nevertheless, faculty members have recourse if they believe their intellectual property is being shared without their consent, and our office is happy to help. If you have any questions or concerns about the template or the process for sending it, please feel free to call the General Counsel’s Office or, if you prefer, email me at lawwhite@udel.edu. Thank you. Appendices TEMPLATED COPYRIGHT INFRINGEMENT NOTICE – FOR USE BY A FACULTY MEMBER CHALLENGING CONTENT ON A NOTE-­‐COMMERCIALIZATION WEB SITE [For Coursehero:] [For NoteHall:] Course Hero, Inc. Chegg, Inc. Attn: DMCA Complaints/Agent Attention: Copyright Agent 805 Veterans Blvd, Suite 109 2350 Mission College Blvd., Suite 1400 Redwood City, CA 94063 or Santa Clara CA 95054 Fax: (408) 716-­‐3204 copyrightagent@chegg.com Email: dmca@coursehero.com Re: Takedown Notice 12
I am a faculty member the University of Delaware. I am on notice of copyright and trademark infringement on your website. Specifically, the University owns a non-­‐
exclusive right to faculty intellectual property that appears on your website at the following URL location or locations: URL: Short Description of Offending Materials [e.g., test questions, lecture content]: _________________________________________________________________________________________________
_________________________________________________________________________________________________
________________________________ Neither I nor the University granted permission or license for you to use the materials created by its faculty members, and the University is not aware of any permission or license you have to use the materials. Please immediately remove all posted items that contain content created by me, including but not limited to test questions, review questions, notes and class materials that appear under any subtab on your site. If you contend that your web site has permission to use these items, then please provide me with copies of all of the licenses or permissions you have to post faculty materials. I have a good-­‐faith belief that use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner, its agent, or the law. I swear, under penalty of perjury, that the information in the notification is accurate to the best of my knowledge and that the University copyright owner has authorized me to act on behalf of the University as owner of audiovisual and online course material created by its faculty members. The foregoing is without waiver of any other rights of the University of Delaware, all of which are expressly reserved. Signature: _______________________________________ Date: ______________________ 13
Model Language for Inclusion in Course Syllabus: Notice: The University of Delaware owns a non-­‐exclusive right to faculty materials that will be given to you during the course. These materials include ideas and comments provided by the instructor during class; test questions; handouts and course materials; and other materials representing the copyright-­‐protected intellectual property of course instructors. You are prohibited from entering into relationships with web sites such as Course Hero, Notehall, or similar sites under which you agree, in exchange for the payment of a fee or salary, to post these materials online. Violations of this prohibition will be referred to the Student Conduct Office for investigation and disciplinary action under UD’s Code of Conduct (http://www.udel.edu/stuguide/11-­‐12/code.html).