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Although a professor's published lecture notes and electronic textbooks are factual compilations that are protected by copyright, genuine issues of material fact remain regarding whether a class notes vendor's use of the professor's materials was fair, the U.S. District Court for the Northern District of Florida ruled Nov. 23 (Faulkner Press v. Class Notes d/b/a Einstein's Notes, N.D. Fla., No. 08-cv-49, 11/23/10).
Denying the publisher's motion for summary judgment of copyright infringement, the court said that only a small percentage of the texts were copied, but that the copying was almost exact and thus led to a genuine issue of whether the copying was substantial. The court granted the vendor's summary judgment motions on the publisher's Digital Millenium Copyright Act and a state statute claims.
Class Notes d/b/a Einstein's Notes, owned by Thomas G. Bean, sells note packages to University of Florida students. It does so by hiring Florida student note takers as independent contractors to provide lecture summaries and study materials from various classes, which Class Notes edits and publishes for sale.
Michael Moulton, a professor at Florida, co-authored two electronic textbooks, Wildlife Issues in the New Millennium and Global Perspectives in Biodiversity Conservation, and with Faulkner Press obtained copyright registrations for the books and his lecture notes. Moulton then assigned his interests to Faulkner Press.
Faulkner sued Class Notes alleging copyright infringement for use of Moulton's materials--including practice questions from electronic textbooks, study questions, and other materials based on the lecture notes and sound recordings--in its note packages. Faulkner also alleged violation of the Digital Millenium Copyright Act, and that Class Notes used Moulton's name for commercial and advertising purposes in violation of Florida Statute Section 540.08 by including the words “Professor Moulton” on the cover of its note packages.
Faulkner and Class Notes both moved for summary judgment.
Under Feist Publications Inc. v. Rural Telephone Service Co., 499 U.S. 340, 18 USPQ2d 1275 (1991), a valid copyright requires a minimum degree of creativity to show that the work is something original by the author.
Chief Judge Stephan P. Mickle said that the study and practice questions compiled by Moulton possessed the minimum level of creativity required because his selection of facts was unique and unlikely to be duplicated by someone else tasked with compiling such study questions.
The practice questions in Moultons texts were copied in Class Notes' packages almost word for word, the court said. However, they make up less than one percent of Moulton's texts, and thus only a small percentage of the texts were copied.
“In such cases where there is a literal similarity of just a fraction of the works, it is important to consider context,” the court said. “Although the practice questions are only a small part of the textbooks, they are contextually significant. … [They] are used to summarize the other materials in the textbook and to test the students' knowledge of them.”
Since Class Notes copied the questions for the same purpose, there is at least a genuine issue of whether the copying was substantial given the purpose of the practice questions in relation to the other materials in the textbooks, the court said.
The court also ruled that, even though the study and practice questions were protected by copyright, genuine issues of fact remained as to whether the inclusion of the questions, as well as lecture summaries, within Class Notes' note packages constituted fair use.
Thus the court rejected the both sides' summary judgment motions on Faulkner's copyright infringement claim as to the practice and study questions.
The court did, however, rule that Class Notes was entitled to partial summary judgment on Faulkner's allegation that Class Notes infringed the copyrights to Mouton's sound recordings of his lectures.
It is undisputed that Class Notes did not have access to the sound recordings and it never reproduced, sold, or distributed any form of the lectures as a sound recording. Faulkner Press provided no argument with regard to this issue. Under the Copyright Act, sound recording copyright holders possess exclusive rights related to duplication of the actual sounds, distribution of copies, and transfer of ownership interests. 17 U.S.C. § 114(b). Since Class Notes has not done any of those things, it is entitled to partial summary judgment on Count Three. The remaining portion of Count Three, based on the lecture notes, presents genuine issues of material fact for a jury to determine.
Faulkner next alleged that Class Notes violated the DMCA by removing copyright management information when it copied materials from the textbooks and study questions into its note packages. It also alleged that Class Notes intentionally published false copyright management information by printing “Einstein's Notes ©” on its note packages.
Although the plain language of the DMCA does not limit the definition of copyright management information to notices that are placed on works through technological processes,” the court acknowledged, Class Notes made other arguments that demonstrate that it is entitled to summary judgment as a matter of law on the DMCA claims.
The court pointed to Class Notes' argument that it did not remove any management information, but that its student note takers simply took notes from Moulton's course and those notes were compiled into note packages. Thus, information from Moulton's courses was allegedly copied into a different form and then incorporated into the note packages and no copyright management information was removed from Moulton's product or original work, the court said.
Further, the court said that Class Notes did not add false copyright management information in violation of the DMCA by printing “Einstein's Notes ©” on its packages because the packages were a different product from Moulton's work, even if they included materials from Moulton's work.
“Class Notes intended … to create its own derivative work that did not infringe on copyright protected material,” the court concluded. “Whether Class Notes was successful in that regard must be determined by a jury. With regard to the copyright management information, however, Faulkner Press has presented no evidence to show that Class Notes altered the information with intent to aid infringement.”
Thus, the court granted summary judgment in favor of Class Notes on the DMCA claims.
Finally, Faulkner alleged that Class Notes used Moulton's name for commercial and advertising purposes in violation of a Florida law, by including the words “Professor Moulton” on the cover of its note packages.
The court said that the purpose of the Florida statute is to prevent the use of a person's name or likeness to directly promote a product or service, but that the state law is not violated when the person's identity is used in news reporting, commentary, entertainment, works of fiction or nonfiction, or in advertising incidental to such uses.
Here, Class Notes published note packages from Moulton's courses and used his name to identify the courses. “From Class Notes use, no reasonable inference can be drawn that Dr. Moulton was actually promoting or endorsing the notes or that Class Notes used Dr. Moulton's name to give that impression,” the court concluded, granting Class Notes' summary judgment motion as to this claim. “No reasonable jury could find that Class Notes used Dr. Moulton's name or likeness to promote its product or services.”
Faulkner was represented by Jack M. Ross of Siegel Hughes & Ross, Gainesville, Fla. Class Notes was represented by Simeon D. Brier of Edwards Angell Palmer, Ft. Lauderdeale, Fla.
Opinion at http://pub.bna.com/ptcj/0800049Nov23.pdf
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