open content

A New Year’s Copyright Puzzler

A short version, a long version, and a surprise.

The short version: who has precedence, the CC NC clause or the First Sale doctrine?

The long version: First, a little background on the First Sale doctrine from Wikipedia (normal caveats apply):

The first-sale doctrine is a limitation on copyright that was recognized by the U.S. Supreme Court in 1908 and subsequently codified in the Copyright Act of 1976, 17 U.S.C. § 109. The doctrine allows the purchaser to transfer (i.e., sell or give away) a particular lawfully made copy of the copyrighted work without permission once it has been obtained. That means that copyright holder’s rights to control the change of ownership of a particular copy end once that copy is sold, as long as no additional copies are made. This doctrine is also referred to as the “first sale rule” or “exhaustion rule”… In 1909 the codification originally applied to copies that had been sold (hence the “first sale doctrine”), but in the 1976 Act it was made to apply to any “owner” of a lawfully made copy or phonorecord (recorded music) regardless of whether it was first sold. So, for example, if the copyright owner licenses someone to make a copy (such as by downloading), then that copy (meaning the tangible medium of expression onto which it was copied under license, be it a hard drive or removable storage medium) may lawfully be sold, lent, traded, or given away.

(For more detail, see this entry on

And now, a little background from the bottom of each and every Creative Commons license (for an example, see the bottom of

Your fair dealing and other rights are in no way affected by the above.

To be more specific, from the Legal Code version of the license,

2. Fair Dealing Rights. Nothing in this License is intended to reduce, limit, or restrict any uses free from copyright or rights arising from limitations or exceptions that are provided for in connection with the copyright protection under copyright law or other applicable laws.

Clearly, Creative Commons does not mean for their licenses to interfere with the limitations on copyrights granted us elsewhere, like our rights under the First Sale Doctrine.

Now, let me try to string these beads together here.

Someone, say MIT OCW, grants me permission to make a copy of some of their materials subject to the terms of the CC By-NC-SA. Let’s say it’s a collection of biology video lectures from Eric Lander, who President-elect Obama has just named co-chair of the President’s Council of Advisors on Science and Technology (congrats!). I’ll burn these to DVD so that they won’t take up space on my hard drive, and use them as a free replacement for a textbook to study for the biology class I’m taking this term.

Now I find myself in possession of a copy of Prof. Lander’s materials, which I have obtained legally. When the semester is over, do I have First Sale rights to this copy of Prof. Lander’s work?

Let’s think about it in terms of textbooks. They are fully copyrighted. All rights reserved. At the beginning of the semester, I obtain a copy of the book through legal means. At the end of the semester, when I no longer want the textbook, First Sale means I am free to sell that copy of the textbook for whatever price I can get.

Now what about my DVD? (Remember, I didn’t buy a textbook for my class.) Having obtained this copy of Prof. Lander’s work through legal means, now that the semester is over, does First Sale mean I am free to sell my DVD? Can I sell this copy of an NC-licensed work?

If not, isn’t something very wrong?

If I can’t sell the DVD, it means that somehow the limitation on copyright that applies to an All Rights Reserved work does not equally limit the copyright of a Some Rights Reserved work. Shouldn’t the First Sale limitation that applies to All Rights Reserved works also apply to Some Rights Reserved works?

This question can be asked in a more basic way. When I download a video from MIT OCW, do I own that copy of the video? If so, it seems that First Sale limitations apply and I am free to later sell that copy.

If not, then I don’t actually own the copies I make of CC-licensed materials? If not, a CC license is actually a EULA or clickwrap license that gives me permission to use a copy but should make it clear (but doesn’t) that I don’t own the copy?

The surprise: Is the First Sale doctrine a hole in the NC clause big enough to drive a truck through? It may not be, but I would sure like for someone who knows more about the statute and the case law to explain to me why not.

Happy New Year!

open content

This Class (c) 2008

I suppose if faculty deliberately choose to misunderstand their role and torment students, they’re free to do so. As Wired reports, another faculty member is claiming that notes students take in his class infringe his intellectual property rights. Michael Moulton, pictured right, and his publisher Faulkner Press (no link love for you!) are asserting what they suppose to be their right to control what students do with the information he teaches in his classes. While this all seems very confusing, the lawyer representing his publisher (a Mr. Sullivan) makes it quite clear:

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.

Ever wonder why students hate teachers? Try telling your students that their class notes infringe your copyright.

We may assume that Prof. Moulton’s / Faulkner Press’s understanding of fair use, or “protected infringement,” is restricted to educational circumstances. The use of student notes from his class for profit-making purposes is all that bothers them. And surely that’s appropriate, right?

Then, once students graduate and go on to employment, what should happen to these class notes whose infringement was once protected? When students take these infringing notes out of the educational setting and into the workplace with them for “review,” surely the protection those dastardly, infringing notes enjoyed in the dorm room finally disappears, doesn’t it? If a graduate is hired by a company, and course-related information makes it’s way into the corporation, that organization might financially benefit from the professor’s intellectual property – without the professor’s or publisher’s permission and without the professor or publisher receiving any compensation! Oh, the humanity! This growing crisis in the academy leads me to ask:

What can be done about the slow, leaking escape of faculty knowledge out of universities via graduating students?

In other words, how can we isolate and contain faculty intellectual property, so that enough students pass exams that our departments maintain their accreditations, but we guarantee that students leave with no more information or expertise than they entered with?


The teaching act is a sharing act. I’ll say it again. The teaching act is a sharing act. To hold the sacred title of “faculty” means to be a person who dedicates his or her life to making sure that every student you come in contact with takes with them as much of your knowledge, skills, expertise, and positive attitudes as possible when they graduate. It means to work to facilitate and mediate student learning. It means to enculturate those students as deeply into your professional community and practice as possible. There is simply NO place for selfishness, for withholding, for secrecy, or especially for threats of legal action against students for taking, sharing, or even – gasp – selling – class notes. If it helps students learn what you’re tying to teach, why would you interfere???

The only answer can be that student learning is no longer your first priority. And that’s sad.

The distinctions will slowly become clearer and clearer. The “free market” of student registrations will declare open educators who truly teach and share of themselves with students to be the winners, while the intellectual misers will be left to sit alone in their ivory towers counting their publications, unable to understand why students no longer sign up for their classes (or attend the universities whose policies uphold these attitudes) and unable to understand that they don’t own the copyrights in their publications – the publishers do.

It’s unclear how much of this lawsuit is Moulton’s publisher, and how much of it is him. We expect this kind of behavior from publishers. Let’s hope that Moulton is just caught in the crossfire here. But if a person is concerned about protecting their intellectual property, teaching just isn’t the right profession for them. They need to find a new one.

open content

It’s A Dam That’s Cracking

Via the amazing Peter Suber, some quotes from a story called Internet book piracy will drive authors to stop writing in the London Times:

Chevalier, the author of Girl with a Pearl Earring who also chairs the London-based [Society of Authors], said that her members were deeply concerned that the publishing industry was failing to adapt to the digital age….

Ms Chevalier told The Times that the century-old model by which authors are paid – a mixture of cash advances and royalties – was finished. “It is a dam that’s cracking,” she said. “We are trying to plug the holes with legislation and litigation but we need to think radically. We have to evolve and create a very different pay system, possibly by making the content available free to all and finding a way to get paid separately.”

The phrase “We are trying to plug the holes with legislation and litigation but we need to think radically” should be the warning bell for all industries – including education – trying to make their way into the current century.