Faculty discuss constitutionality of online policy

Liz Bogut

Faculty members and legal experts this week continue to debate the merit and feasibility of a proposed University policy restricting the use of online notes.
The policy, requiring students to obtain permission from professors before posting notes online, was passed Thursday by a 67-46 University Senate vote. The University Senate is a student-faculty governing body.
Some legal experts and faculty members questioned the constitutionality of the policy, while others speculated about the University’s ability to enforce it.
The policy needs University President Mark Yudof’s approval to be officially adopted.
Faculty members were divided over the issue at Thursday’s meeting; some said the policy would protect their intellectual property rights, while others said it would violate students’ First Amendment rights.
“The policy does not violate free expression but puts a commercial limitation on the use of class notes,” said Judith Martin, chairwoman of the senate educational policy committee.
Martin said the new policy gives faculty members the ability to pursue a grievance against a student if the policy is violated.
But others oppose the policy.
“I have a real concern with the idea that if a student posts his/her own digestion of class material on the Web, it would be an offense that could lead to expulsion,” said Ronald Siegel, University professor and pharmaceutics head. “I just cannot think of any justification for that.”
Siegel expressed adamant opposition to the policy at the Senate meeting, saying he would contact the Civil Liberties Union if the policy passed.
“We’re talking about free speech here,” Siegel said Tuesday. “It is hard to understand why the University would suppress that.”
Chuck Samuelson, executive director of the Minnesota Civil Liberties Union, said he does not understand why the University faculty would want to adopt such a policy.
“People have been selling and loaning lecture notes for a long time. The only thing different here is that the Internet is more public,” Samuelson said.
Samuelson also said faculty members need to remember students at the University are adults and are paying to come to class.
But Martin said the policy protects faculty members’ intellectual property rights, the main issue concerning most faculty members who support the policy.
Mark Anfinson, media law attorney, said the debate over the policy comes down to copyright issues.
“For the most part, students’ notes are their own creation — information by itself is not copyrightable. This protects students by the First Amendment,” Anfinson said.
This is not the first time these concerns have been raised at the University.
Between 1993 and 1997, Paradigm Course Resource paid graduate students to attend specific classes and take notes.
The company would then reproduce the notes and sell them to students by individual lecture or for the entire quarter.
Gary Magee, owner of Paradigm Course Resource, said even then only about 40 percent of faculty members would allow student note-takers in their classrooms.
Magee said he stopped employing students to take notes because of faculty members’ opposition and a lack of student interest in the notes.
But Magee supports the adoption of a policy protecting faculty.
“I have seen some of the notes online and they are horrendous. I think the University should help out instructors and protect their rights,” Magee said.
Anfinson said the University would have a tough time imposing the sanctions on students because it is a public institution. The First Amendment does not apply to private institutions.
“It is easier for a private institution to adopt this kind of policy,” Anfinson said.
Because of the number of students at the University and the amount of information on the Internet, the policy might be difficult to enforce.
“No one knows how the policy will be enforced. But the enforcement would have to come from faculty members or teaching assistants,” Martin said.
Yale University, a private institution, won its fight against online note-takers Tuesday when Versity.com withdrew all lecture notes from university courses from its Web site, according to the Chronicle of Higher Education.
Yale’s general counsel demanded it do so after faculty members complained.
University general counsel Mark Rotenberg was unavailable for comment.
Samuelson said if the issue becomes a case, the Civil Liberties Union would definitely look at it.
“What we really need is an outbreak of common sense here,” Samuelson said.