Legal Watch: Classroom Capitalism
By Jonathan R. Alger
I vividly remember taking detailed notes as a first-year law student on the days I was assigned to prepare a class outline. Students organized these outlines, and the copy center reproduced them, selling the packets back to students for review and use during open-book final exams. I suppose faculty members knew about this practice, but I don’t recall any discussion of their rights in this context. Student notes have been available for sale for a long time. The emergence of the Internet, however, has allowed entrepreneurs to take this practice to a new level of commercialization and has raised vexing legal, ethical, and educational issues in the process.
For-profit Web site operators now pay students from colleges around the country to post notes from their courses. The sites make money from advertising. Professors and universities are not necessarily asked for permission, nor do they receive the profits.
Faculty members and educational institutions alike are questioning the legality and morality of this practice on several grounds. First, what about the intellectual property rights of faculty members in their lectures? Citing common law dating back at least as far as an 1825 English case, the AAUP noted in its 1915 Declaration of Principles that "the utterances of an academic instructor are privileged, and may not be published, in whole or part, without his [or her] authorization." In its 1999 Statement on Copyright, the AAUP reiterated the importance for academic freedom of faculty ownership of course materials. Such ownership was recognized by a state appeals court in a 1969 California case, but in 1996 a federal appellate court upheld the dismissal of a copyright infringement suit brought by the University of Florida against a commercial note-taking company.
Founders of the new Internet-based companies claim that student notes represent nothing more than one person’s recording of facts and impressions of a class, not theft of a professor’s ideas. Some sites even include disclaimers indicating that the postings are not official lecture notes. As any faculty member knows, however, the creativity involved in developing a course includes countless decisions regarding how materials and ideas are presented. Thus institutions such as Kansas State University have established policies indicating that unauthorized note selling infringes on professors’ copyright.
Professors have other legal reasons to be concerned about the proliferation of these note-taking services. Faculty members who offer controversial opinions about current events or public figures may not want their statements published in a format over which they have no control and in which they could be taken out of context. Professors seeking tenure or considering positions at other campuses may not want review committees to cast judgment on their work by logging on to the Internet and examining unauthorized notes from their courses that reflect nothing more than the quality of the note takers.
Above all, paid note taking and Internet dissemination can have invidious consequences for learning. If professors and students suspect that someone is selling notes from their class, they may be less likely to engage openly in discussions on sensitive topics. Faculty members may become less willing to discuss new and untested theories or ongoing research that has not yet been published. And the note takers themselves may be focused more on the details of their notes than on the larger purposes and ideas of the course or on contributing to class discussions.
Faculty members and educational institutions can respond to this form of classroom entrepreneurship on a number of fronts. Purdue University professor Mathieu Deflem, for example, is turning the tables on these companies by taking advantage of a Web site and the Internet—the very same technology used by the note takers—to raise questions about their practices. A public awareness campaign by Ball State University’s AAUP chapter led to the shutdown of a local note-selling business. Iowa State and other universities have developed policies stating that the sale of class notes without an instructor’s permission violates academic ethics. Through collective action, professors can encourage their institutions to adopt such policies.
On the legal front, the University of California system has already filed a lawsuit against a traditional note-taking company that produces and sells lecture notes without university permission, and its Berkeley and Los Angeles campuses have sent cease-and-desist letters to two Internet-based companies engaged in this practice.
Despite the pervasiveness of marketplace models, not everything in higher education should have a price tag. The sharing of student notes is not inherently evil; it can serve valid pedagogical purposes. But faculty members and their institutions owe it to their students to insist that the essence of the classroom dynamic cannot be bought or sold.
Jonathan Alger is AAUP counsel.
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