Stolen Content: Avoiding Trouble on the Web

The Internet is a marvelous teaching tool. But professors and universities had better take a careful look at the materials on their sites—and who has access to them—if they want to avoid liability for copyright infringement.

By Jane C. Ginsburg

The Internet bristles with potential for professors, students, and their universities. It promotes scholarly communication by permitting professors to self-publish and to make their work immediately available throughout the world. It enhances course content by making it possible to update materials instantly, not to say incessantly. It might even save trees: rather than photocopying news articles and distributing the photocopies in class, teachers can just link their course Web pages to those of the news sources (although if students link and then print out, trees will remain at risk).

But the Internet is also fraught with peril for educators, particularly for those who indulge in what one of my colleagues calls "heroic optimism" about the scope of the public domain and the fair use doctrine. Consider the following scenario:

Professor Donna Prima, of the Basilica College English department, teaches a course in popular culture. Her "reading list" includes magazine articles, excerpts from books, film clips, recorded music, and cartoons. She has made all of the "readings" available through her Web site. It has not occurred to her to request permission from the authors or publishers to do so. Because Professor Donna Prima believes fervently in academic freedom and open communication, she has not restricted access to her course Web page to students enrolled in the course, or even to those enrolled at Basilica College. Because Professor Prima is Web-adept (or has hired student teaching assistants who are Web-adept), her course Web page has lots of bells and whistles. It includes a cartoon of the week, scanned from sources such as the New Yorker and the Sunday comics, and a song of the week downloaded from a variety of sites (not all of them authorized). This week’s song is the appallingly postfeminist hit by Normandie Swords: "Beat Me Baby, Yet Again." The Web page also has a chatroom that allows students and others to comment on the classes and the "readings." Sometimes, participants post excerpts from other works as part of the online discussions. Not surprisingly, Professor Prima’s Web page has developed quite a following in and outside Basilica College; the Web page’s counter shows thousands of "hits" to the site. Basilica College dean Willard Worried has become concerned that Professor Prima’s site may pose copyright problems. He wonders what, short of shutting the site down (which would spark tremendous resentment), he can do to minimize risks of liability to the college.

Dean Worried is right, at least in part, to feel uneasy. While some of Professor Prima’s postings may well be permissible under a reasonable interpretation of the fair use doctrine, other features of her Web site compel an interpretation so aggressive as to be unconvincing. To evaluate the site, we need to analyze both its content and its audience. When we discuss content, we must distinguish the posted "readings" from the cartoon and song of the week, as well as from material that the chatroom participants post.

First, the "reading list": Professor Prima has taken the college "course pack" a step or two further. Rather than create a printed anthology by photocopying excerpts from books and other sources, she has put everything on her Web site, making it available for end-user downloading (and possible printing out). If Professor Prima had given a course-pack order to Kinko’s or a similar off-campus copy shop, it would be clear (based on two important court decisions) that the shop would need to obtain permission from the authors or other copyright owners in order to engage in the photocopying. The primary rationale for this requirement is the for-profit nature of the off-campus copy shops. They may copy material at a professor’s behest, but they do it to make money. If the copy shops make money by copying authors’ works, then authors should share in the profits.

Would it be different if the university took over the photo-copying, but still did not secure permission? The university is not a for-profit enterprise, so there are no profits to share. Nonetheless, the university, or the students, get something for nothing, and the authors lose sales of the books excerpted in the photocopies. They would not lose sales if Professor Prima chose not to assign a whole book from which she could not excerpt. But when she posts selections on her Web page, the authors or publishers lose the licensing fees they would charge Kinko’s or other shops to copy subsets of books. So even if the university does not make money, it systematically deprives the authors of established revenue opportunities.

But, Professor Prima might object, what she is doing is not like taking Kinko’s operations in house, since she has not become photocopy central for Basilica College. What she does, she would argue, is more like putting books on library reserve, anticipating that students will individually photocopy the reading assignments. This argument assumes, of course, that end-user student photocopying would be fair use. But what may be fair in isolation becomes more troublesome when it is done cumulatively. In the context of Web sites, moreover, there is the matter of posting a copy on the Web site, from which students make more copies. In the context of library reserve, the library has lawfully acquired the copy or copies it puts on reserve. But Professor Prima assembled her Web "reading list" by making unauthorized copies—copies that are not for private research but for further dissemination, indeed, for dissemination beyond her course and even her college.

Access and Purpose

This fact brings us to another problem: the scope of access to Professor Prima’s Web page. Claims of educational fair use become substantially attenuated if access to the Web site is not limited to students enrolled in the course for which the readings have been posted. Unrestricted access in effect competes with sales or licensing of the works for all purposes; moreover, it is not necessary to the pedagogical purposes of the particular course (regardless of Professor Prima’s predilection for general free access). Since the fair use doctrine inquires into the necessity for making a copy, unnecessary copying or dissemination is a strike against the activity.

The need to rely on duplication is another way in which a Web page may differ from photocopies and course-pack anthologies. If the works on Professor Prima’s reading list are already available on freely accessible Web sites, she may not need to copy them onto hers. She can simply link from her site to the Web page with the work. Of course, linking will not suffice for every work, since not every work is available on the Web (at least not yet), but it may prove useful for certain kinds of works, particularly news reports.

For other kinds of works, however, Web availability may be deceptive. That is, the work may be downloadable, but not necessarily with the author’s or the copyright owner’s permission. That is the situation, at least for the moment, with respect to music. Music files distributed in MP3 compression format may seem pervasive, but according to the (admittedly not disinterested) statistics of the Recording Industry Association of America (RIAA), almost 90 percent of MP3 files are "ripped," or copied, from CDs without authorization, rather than made available with the permission of the recording artist or record producer. So it is not safe for Professor Prima to conclude that "if it’s out there, it can be in here, on my Web page." The RIAA’s claim suggests that the song-of-the-week soundtrack is a dubious addition to her Web site.

Another reason the song of the week and, by the same token, the cartoon of the week are questionable accouterments to the Web site, is their slim relation to the pedagogical purpose of the site. Works on the reading list at least are subject to scrutiny and analysis in class, in the chatroom, and perhaps in student papers. The song and cartoon of the week seem to be purely decorative. They may make the Web site more appealing or amusing, but they are not the stuff of scholarly inquiry (unless Professor Prima modifies her page to direct discussion toward the weekly additions). The courts have frequently emphasized that the fair use doctrine excuses "productive" or "transformative" copying, in which subsequent authors build from the copied material to create something new. But copying simply to add "zest" to a work, to make it more popular by appropriating some of the first author’s appeal, is not what fair use is about. So the zestful song and cartoon of the week seem to be features Professor Prima would do better without.

Institutional Liability

So far, we have been addressing whether Professor Prima may be a copyright infringer. What about her employer, Basilica College? Under normal principles, called respondeat superior in lawyers’ Latin, the employer is liable for the wrongful acts committed by its employee in furtherance of her employment. (Performing employment-related activities is distinguished from what the law colorfully calls "a frolic of her own," which is a wrongful act committed outside the scope of employment, and for which the employer is not liable. If Donna Prima were making and selling bootleg records on the side, that would be a "frolic of her own." If, however, she downloaded the bootlegs to her Web site for inclusion in her course materials, that would be in pursuit of her employment, and the university’s liability would be at issue.)

Since the end of 1998, however, universities can breathe a little easier, at least with respect to professorial copyright infringement by way of Web sites that the university hosts. In the Online Service Provider Liability Limitation Act included in the pompously named Digital Millennium Copyright Act of 1998, Congress made a special exception for nonprofit educational institutions. Normally, by application of the doctrine of respondeat superior, professors and employed graduate students who act within the scope of their employment, and whose acts prove to be infringing, engage the liability of the university that employs them. Universities therefore faced the unpleasant prospect that they would be fully liable for damages and subject to injunctive _relief if professors or employed graduate students posted infringing content to their university-hosted Web pages. Universities also, no doubt, anticipated that professors and employed graduate students might well commit many copyright infringements, however unintentionally. Universities therefore sought, and Congress ultimately agreed, that a faculty member or employed graduate student "be considered to be a person other than the institution," and that the professor’s or graduate student’s knowledge or awareness of his or her infringing acts would not be attributed to the university.

This severance of the employer-employee link between professors and their universities means that universities will be treated as service-provider "hosts" of third-party content, rather than as originators of that content. As a result, universities that comply with the requirements of the Online Service Provider Liability Limitation Act will benefit from a significant reduction in liability. These requirements include obligations to post contact information for sending notices of alleged copyright infringements to the university, and, once proper notice is received, to disable access to the allegedly infringing content that resides on the university’s server. (The process is called "notice-and-take-down.") That means, for example, that if the copyright owners of "Beat Me Baby, Yet Again" allege that Professor Prima’s posting of the sound recording to her Web site is infringing, Basilica College will not be liable for damages if it takes the work down, or blocks access to the site.

But the Online Service Provider Liability Limitation Act does not insulate universities from liability for all online postings made by their personnel. A university will retain the characterization of "employer" (and hence be liable for a professor’s acts) if the faculty member’s infringing activities "involve the provision of online access to instructional materials that are or were required or recommended, within the preceding three-year period, for a course taught at the institution by such faculty member or graduate student." Suppose, for example, that among the materials posted to Professor Prima’s Web site is the screenplay of the classic aquatic horror movie, It Came from the Titanic. If the screenplay is recommended or required reading for her course, and if she posted it without authorization (and if that posting is infringing), then Basilica College will be fully liable in damages to the screenplay’s author for the professor’s unauthorized posting.

Even if she posts the screenplay this year without assigning it, but had in the past three years included the screenplay on the required or recommended reading list, her current posting disqualifies the university from claiming the benefit of the statutory exception to employer liability (this appears to be true even if the prior reading list included only hard copies of the works at issue). The purpose of the prohibition is clear: to avoid the competition that availability of the book on the course Web page would pose to sale of the work (or licensing of photocopies) to enrolled students.

Permission

So what can Donna Prima or Willard Worried do to avoid liability to the copyright owners of the works Donna Prima wants to post? First, she can (and should) ask permission to post the material. At the least, this is a simple courtesy. Many authors and publishers are happy to have the additional exposure and prestige an academic Web site can afford, but they would be happier to know of the posting beforehand, rather than learning indirectly and after the fact. (Think of it as a variant on the warning to watch one’s children: it’s the Internet; do you know where your work is?) Moreover, some authors and publishers may be less happy with a posting on an academic Web site if access to the site is completely unrestricted. Their reluctance may be economically motivated, since unlimited access may compete with some markets for the work.

Equally important, copyright owners, particularly authors, might be willing to allow a colleague to post a work in progress for discussion by enrolled students, but would deny permission to make unrestricted disclosure of the work. Thus, despite Donna Prima’s desire to keep her Web page open to the world, she may need to modify it to password protect or otherwise limit access to some of the materials on it. What if the copyright owner is willing to allow posting, but wants to be paid? If the posting would exceed fair use limits, even for a restricted site, then a license should be acquired, or the posting forgone. For many materials, permission and licenses can be secured through the Copyright Clearance Center’s Electronic Course Content Service <www.copyright.com/Services/ECCS.html>.

Posting of Course Notes

Let us consider another set of problems that Web sites can pose.

Professor Prima’s instruction is not merely virtual. She is a dynamic lecturer and her classes are very popular. So popular, in fact, that a student enrolled in the class, Roger Jolly, has responded to a business opportunity offered to him by Collegeknowledge.com to post his class notes on its Web site. Jolly’s notes, while purporting to convey the content of Professor Prima’s lectures, are sometimes inaccurate, not to mention frequently misspelled. When Professor Prima learns what Roger Jolly has been doing (and how ineptly he has been doing it), she is outraged, and demands that Collegeknowledge.com take down the posting. Collegeknowledge.com replies that the notes are the student’s intellectual property, that he has transferred rights to that property to Collegeknowledge.com, and that the company is therefore entitled to post the notes on its for-profit Web site.

This scenario poses the question of who owns professorial lectures. The short answer is that the professor does. If she has previously written them down, whether verbatim or in notes, she is the copyright owner under federal law. If her lectures are extemporaneous, she is the copyright owner under state common law. Either way, she has the right to prohibit third parties from commercializing her lectures.

Some people might offer the following objections: (a) student note taking is an integral part of class attendance and participation, and therefore authorized; (b) the notes students take reflect their own authorial contributions, of which they are the copyright owners; or (c) the notes simply summarize facts, and facts aren’t copyrightable.

Here is the rejoinder. Professor Prima may indeed be granting her students an implied license to take notes in class, and even to share them on a noncommercial basis with absent classmates. That does not extend to selling the notes to third parties. That activity exceeds the normal scope of the common scholarly enterprise.

As a matter of copyright law, students may be the authors of "derivative works," that is, their glosses on the underlying work of the professor’s lectures. But that does not give them a right to exploit the lectures without permission. Suppose Professor Prima wrote a novel, and her student Roger Jolly wrote a screenplay based on the novel, without permission. The student cannot peddle his screenplay without clearing rights in the underlying novel.

As a matter of common sense, moreover, arguing that the notes students take reflect their own authorial contributions is absurd. Collegeknowledge.com and its subscribers do not care about Roger Jolly’s personal observations on Professor Prima’s lectures; they want the content of the lectures. That is the point of the commercial note-taking services: to convey the intellectual contribution of the professor to the subject matter, not to serve as a vanity press for student musings on the lectures.

The objection that facts aren’t copyrightable deserves fuller examination. Facts indeed are not copyrightable, so that if all Roger Jolly is doing is recounting facts exposed in Professor Prima’s lectures, he is free to do so (at least as a matter of copyright law). But lectures are not just undifferentiated strings of generic facts (or so we would hope). They convey the professor’s interpretation of the events she relates, through her selection of facts and her organization of the material. Thus, even if Roger Jolly omits Professor Prima’s provocative metaphors and unusual word choice, he still has infringed her copyright if he captures the other elements of her presentation that make the lectures "hers."

Ownership of Lectures

Finally, what about Basilica College? If Professor Prima is the college’s employee, doesn’t Basilica own her lectures? The "works made for hire" doctrine of copyright law says that the employer is the copyright owner of works made pursuant to employment. Since Professor Prima’s lectures are created for courses that she is hired to give at Basilica, doesn’t it follow that the college, rather than Professor Prima, owns the copyright to her lectures? Probably not. I recognize that since I, too, am a professor, my response may seem self-serving. But there is a long-standing academic tradition that professors own the copyright in their lectures and other scholarly works. This certainly was true before the current copyright act was enacted, and there is nothing to suggest that when Congress rewrote copyright law in 1976, it intended to change that tradition.

Moreover, one might observe that if universities were now to assert copyright ownership of lectures by virtue of being the professors’ employers, universities would be trying to have it both ways. They would be invoking the benefits of employer status for the purpose of claiming copyright ownership, while disclaiming that status for the purpose of avoiding liability for copyright infringements that professors commit over the Internet.

In fact, at least for now, universities generally do not assert copyright ownership in professorial works. But that may be because, traditionally, those works have not been worth much, at least not compared with the ill will such assertions would provoke. But with the advent of distance education, that arrangement may change, as more universities struggle to articulate policies on copyright ownership. Most solutions that have been proposed or adopted at universities appear to respect the tradition of professorial ownership of copyright, at least when new media and courses are not at issue. When they are at issue, however, the approach to faculty ownership of such works, or to faculty autonomy in disclosing or exploiting them, vary considerably, from full university assertion of copyright, to professorial discretion in the exercise of copyright, with many solutions in between. This article is not the occasion for detailed review of the emerging policies, but the topic is certainly one for the AAUP to follow.

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