Thursday, June 10, 2010

My School Infringed My Homework

On May 13, 2010, the blog located at posted Elena Kagan’s senior thesis To the Final Conflict: Socialism in New York City, 1900-1933 from Princeton University.

Subsequently, the blogger received a notice from Princeton University to remove the copy of the thesis from her website. See notice here. The Princeton University Archives claims that the copies provided are governed by U.S. Copyright Law, are for private individual use only and electronic distribution is prohibited.

This got me thinking…how did Princeton University Archives obtain rights to this thesis? Clearly Princeton University could not claim that they were the author, unless the student, in this case, Elena Kagan, was employed by Princeton University and the thesis was prepared in the context of her employment. (Ed. – for what students pay to attend most universities, no student produced material should ever be considered a work made for hire.) The rights of an educational institution with respect to a student - produced work is quite a quagmire and includes issues of authorship and fair use / educational purposes defenses, among others. It should not be.

The student created the work. The student should be free to do what they wish with the work and not be subjected to what the school would do with the submitted work. At least on this level I will give Princeton some credit….

This is when I found a copy of the senior thesis of Michelle Obama (then Robinson) from Princeton University on the Politico blog and figured out what Princeton University had – a limited license.

The introductory pages to Michelle Obama’s thesis provided an explanation. The title page includes a notice that the writing is "a thesis presented to Princeton University in partial fulfillment of the requirements for the degree of Bachelor of Arts in Department of Sociology.” See Michelle Obama Senior Thesis. The following page provides that the student authorizes "Princeton University to lend this thesis to other institutions or individuals for the purposes of scholarly research.” Id at page ii.

In addition, the student “further authorize[s] Princeton University to reproduce this thesis by photocopying or by other means, in total or in part, at the request of other institutions or individuals for the purpose of scholarly research.” Id at page ii.

This raises a slew of issues. The first being whether an authorization/license should be viewed as void as a contract of adhesion. A senior thesis is one of the requirements to obtain a degree. However, if included in that requirement is an obligation to also authorize Princeton University to lend and reproduce the senior thesis, then I would consider that a contract of adhesion and void on its face. (Full disclosure: I do not know if Princeton University requires such an authorization but even if it merely included this language giving the students the impression that this authorization was part of the submission process, this would certainly give rise to a question as to whether this is a contract of adhesion and whether the license should be void.)

While it may be admirable that Princeton University shows that they are concerned with the exclusive rights of copyright granted to their students, there is some doubt as to their altruistic nature of invoking these rights on behalf of their students.

Following the nomination of Elena Kagan, the Princeton University Archives at the Mudd Manuscript Library (the same representative that wrote the cease and desist letter to website posted information on obtaining Elena Kagan’s senior thesis found here. The website offers an electronic copy of the thesis by electronic pdf for only $54.60. (Kagan’s thesis is 156 pages which makes the costs roughly $.35 per page.) In addition, Princeton University claims that “Due to copyright considerations, the entire thesis cannot be provided online.”

Legally, Princeton University’s actions are reprehensible for multiple reasons. First, it is the author (i.e. Elena Kagan) who is the copyright owner. As the copyright owner, she is entitled to certain exclusive rights under 17 U.S.C. § 106 including the right to distribute, sell, and publicly display, among others. Princeton University owns a non-exclusive limited license. Princeton does not own the copyright nor does it have an exclusive right under the copyright. In legal terms, Princeton lacks standing. It has no authority to enforce Kagan’s copyright against others and its ability to stop others is completely lacking. Sending the cease and desist letter could be nothing more than a mere threat, as Princeton had no authority to enforce the copyright against the Redstate blogger.

Perhaps, more alarming, however, is the fact that Princeton University clearly has overstepped its bounds and the terms of its license. It is certainly more than hypocritical for Princeton to use the copyright laws as way to stop others from using the copyrighted work when Princeton is itself violating the exclusive rights of the copyright owner which were not granted to Princeton University. There is a clear case for copyright infringement by Princeton University. (Maybe the Redstate blogger should have written a cease and desist letter to Princeton University.)

Under the license provided in the Michelle Obama senior thesis, Princeton is allowed to lend and reproduce the thesis for the purposes of scholarly research. While Princeton may have been granted a license to reproduce and lend the thesis, there is no right to sell the work. It is most alarming that Princeton University clearly was charging money for the copies of the senior thesis. There is nothing in the license that allows Princeton to charge for Kagan’s work. The price is far from minimal. (If this were a 156 page book produced by a major publishing house, I doubt the price would be anywhere near $54.60.) Princeton’s website offering Kagan’s senior thesis includes nothing about use for education purposes or scholarly research. (Note: This is not a commentary on whether the blogs or Politico do or do not fall within the “educational purposes or scholarly research” category but to point out that from the posting on Princeton’s website – they clearly did not care.)

It is Kagan’s work, not Princeton University’s. I have some doubt that Kagan would seek a copyright infringement action for violation of this license. But the revenue should be Kagan’s. This should be true at every educational level – be it a kindergarten fingerpainting by the future Picasso, a short story in fifth grade from Stephen King, or a high school poem by Maya Angelou – the student is the author. Educational institutions should not be able to profit from students’ work submitted for grading.

A copyright course would benefit Princeton University – but it should be mandatory and not just for the students.

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