By Ryan Singel
University of Florida professor Michael Moulton thinks copyright law protects the lectures he gives to his students, and he's headed to court to prove it.
Moulton and his e-textbook publisher are suing Thomas Bean, who runs a company that repackages and sells student notes, arguing that the business is illegal since notes taken during college lectures violate the professor's copyright.
Faulkner Press filed suit in a Florida court Tuesday against the the owner of Einstein's Notes, which sells "study kits" for classes, including Professor Michael Moulton's course on "Wildlife Issues in the New Millennium."
Those notes are illegal, Faulkner and Moulton contend, since they are derivative works of the professor's copyrighted lectures.
If successful, the suit (.pdf) could put an end to a lucrative, but ethically murky businesses that have grown up around large universities to profit from students who don't always want to go to the classes they are paying for.
The suit could also have ramifications for more longstanding businesses such as Cliffs Notes, which summarize copyrighted novels.
Faulkner Press publishes two e-textbooks that Moulton wrote and uses in his classes, and sells its own set of class notes for the course.
But James Sullivan, Faulkner Press' attorney, says the suit isn't about money for the professors, it's about protecting its intellectual property.
"Students are buying a particular note packet to do well on a particular exam by a particular professor," Sullivan said. "The commercial appeal of the product is that it is a copy or close derivative work of that professor's intellectual property."
But if a professor's lectures are copyrighted, aren't students already infringing just by taking the notes in the first place?
Yes, Sullivan answers, student notes do infringe, but they are protected infringement.
"That's absolutely fair use," Sullivan said.
What if a student took notes, but didn't copy anything verbatim from a professor's lecture, and then decided to publish the notes online or sell them?
"While that may not be slavish copy, the notes would be a derivative work and a copyright holder has the exclusive right to create derivative notes," Sullivan said.
Sullivan says his case is more solid than a similar 1996 Florida lawsuit against a company called A-Plus Notes, which was rejected by the courts. Moulton has registered his copyrights, cleared them with the university and recorded his lectures.
"Professor Moulton used an overhead projector in class and would write out the high points of the lecture and that's what Einstein's Notes' note-taker would write down," says Sullivan. Moulton's writing on the transparency fixes the copyright, and the words can easily be compared to the student notes, he adds.
Einstein's Notes, which operates online as HowIgotAnA.com, pays students to write down what professors say in class so that the notes can be re-sold to other students in advance of exams, Sullivan claims.
He also notes that Einstein's Notes puts a copyright notice on the cheat sheets and prints its material with black ink on dark green paper in an attempt to thwart photocopying.
A less exotic copyright claim in the lawsuit alleges that Einstein's Notes also copied and reprinted hundreds of test prep questions included in the professor's text book and in his course software.
The lawsuit seeks any profits made off of the Moulton study guides.
Neither Einstein's Note's owner nor Professor Moulton responded to requests for comment.
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