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Professor Sells Lectures Online

Landaras Copyright is Not an Absolute Right (457 comments)

Initial Disclaimer: IANAL but I am a law student who will practice copyright / technology law

With all due respect, I disagree strongly with your comment.

You said...

and what I say in class is my intellectual property

Repeat after me: copyright is not an absolute right.

Go ahead, repeat it: copyright is not an absolute right.

There is something called Fair Use. I should know, as I rely upon it when creating my podcast, [shameless plug] Life of a Law Student. In LoaLS I build upon my notes from the lectures I took part in at law school to create audio episodes explaining the cases and the law. I then make these episodes available, for free, to anyone who wants to listen and/or download. They are licensed as CC-Attribution and GNU FDL to enable others to build upon them freely.

Out of respect, I informed my profs and the administration what I was planning on doing before I started. Most thought it was a great idea or at least would not stand in my way. Unfortunately, I had one of my professors tell me that he only gave permission for his students to take notes for their own personal use, and so he wouldn't allow me to do LoaLS off of his class. I politely told him I wasn't seeking his permission because my Use was a Fair one and thanked him for his time.

Fair Use has four articulated prongs (although there are potentially more factors to balance).

  1. First, what is the nature of the new work? Is it transformative or merely derivative; is it educational and noncommercial or commercial?

  2. Second, what is the amount of the old work re-used?

  3. Third, is the old work largely creative or largely fact-based?

  4. Fourth, what is the impact by the new work on the market for the old work? The first and fourth prongs are given considerably more weight than the second and third prongs.

Let's consider a student setting up a tape recorder and simply recording your lectures. (We'll set aside any Honor Code violations that explicitly give you the right to ban taping; we'll only deal with your "intellectual property" right.)

  1. First, if the students aren't selling the recordings and using the recordings to help themselves and others learn, prong one cuts in their favor. Also, they're transforming your ephemeral audio into more durable format, so prong one further cuts in their favor under the transformative question.

  2. Secondly, although they may be taping the whole old work and prong two cuts against a finding of Fair Use, this is only one prong and a less important one at that.

  3. Third, your lecture is likely primarily fact-driven, so the third prong cuts in favor of finding Fair Use.

  4. Finally, you're most likely not selling your existing lectures in a recorded format. You may be selling your lectures via tuition at the University, but so long as these tapes are not serving as a substitute for the University experience and/or degree, you're not being harmed. (On the contrary, I've had many people tell me they decided to go to law school because of LoaLS, because it de-mystified what law school was. In this way I'm helping the market for my law school professors, and so your hypothetical recording students could be helping the market for your copyrighted works.)
In summary, a student would likely have a legal right to record your lectures under Fair Use because three of the four prongs (and both of the important ones) would cut in their favor. If you would like make your lectures available for sale or distribution that might change the analysis. But the key thing is to disabuse yourself of this notion that your "intellectual property" is an absolute. Fair Use is explicitly codified in the Copyright Act because it is recognized that oftentimes the incumbent copyright holders won't be willing to innovate in ways that will benefit society. And the entire Constitutional purpose of copyright is to "promote the progress of the useful arts and sciences."

Not to give you an absolute property right.

- Neil Wehneman

P.S. To Slashdot at large: I am looking for people with PHP, audio, or general tech experience to help me grow LoaLS. I have nearly the entire first year of law school in audio right now, and have picked up a few other law students to record with me. Right now I need help managing all of this content and finding new ways to make it available to as many people as possible. I have a dedicated server and unlimited bandwidth donated to the project, so let me know ([neil] [at] [lifeofalawstudent] [dot] [com]) if anyone is interested in coming on board.

more than 8 years ago


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