Sharing, YouTube, and the Law School Community

An inside-baseball kerfuffle erupted among law professors late last week over swapnotes.com, which is a file-trading site for law school course notes, outlines, and exams.  The kerfuffle wouldn’t be worth a post if I couldn’t link it to Viacom v. YouTube and broader questions of information, copyright and community.  So here goes.  More below the jump.

Swapnotes itself is pretty simple:  Each professor is assigned a location on the site; students (and professors themselves, if they wish) can upload and download any course-related content that they have generated.  If you are a student taking “Land Use Planning” at school #1, you can upload your course outline to the site; a student at school #2 can search the site for “Land Use Planning,” find your outline, and download it. 

Faculty objections to the service seem to come from two directions:  First is the copyright objection. Third parties are commercially exploiting their creative output.  I understand the point but don’t buy it myself.  My teaching notes, a derivative version of which might in theory end up on swapnotes, don’t enjoy strong copyright protection, though they enjoy some, since they are essentially fact- or idea-based.  More important, as copyright lawyers occasionally point out, the pro-creativity policy of copyright law wasn’t designed to encourage the kind of creativity that law professors are worried about — Justice Holmes’s famous copyright “nondiscrimination” principle notwithstanding.  If I cared to control the commercial market for my notes, I would either bundle them as a casebook or post them on my website for free.  I don’t do either, and I don’t see many law faculty doing that either. 

So the copyright objection is, in my view, a stalking horse for the real problem, which is that swapnotes.com appears to vastly extend existing opportunities for law students to free ride on the work of their teachers and their colleagues.  I call this the business model objection.  The claim is that students should learn the material themselves, rather than crib from the work of others, and it’s a business model objection because it assumes the validity of legal education methods that were invented more than a century ago:  Require students to absorb material over the course of a full academic year or a semester, then test them once and assign them a grade.  During that year or semester, students are expected to “engage” with the material both in class (by doing the reading on an ongoing basis) and out of class (by enduring some variation of a Paper Chase-style outlining experience).  And it is very, very important  to the classic educational business model that students engage on their own; free riding on commercial outlines or other students’ notes might lead to a good grade, but prevents the students from internalizing the material “properly” — that is, the way that we assume that law students have internalized the material for decades.

I have more sympathy for the business model objection than I have to the copyright objection, but not a lot more, and this is where I borrow some of the lessons of the file sharing debates of the last eight years, and particularly the lessons that Viacom v. YouTube is likely to teach.  If you think in terms of building and maintaining communities and groups, here’s the connection.

Lesson #1:  Oligarchic content providers can kick and scream all they want about copyright and about “respecting” the interests of the creators (as in some version of “Clipping and editing my work without my permission disrepects my vision for the film/LP”), but this horse has left the barn.  Smart content providers are looking for ways to monetize the new world, that is, to replace old, worn-out business models with new ones.  If faculty want to capture or better, leverage, some or even all of the financial and nonfinancial value associated with student outlines and notes, there are likely creative ways to do that.  Change pedagogical and/or assessment methods.  Invite or require students to contribute their value to a class “commons.”

Lesson #2:  The swapnotes.com discussion really reveals some deep divisions over different conceptions of what is happening in the classroom and in the faculty/student relationship.  There was a time, not so long ago, when the faculty/student relationship had a fiduciary or trust-based character.  Faculty-student relationships were much more likely to be one-to-one; the faculty mentor shared his (usually his) wisdom, and the student apprentice absorbed it.  (Star Wars fans can infer Qui Jon and Obi Wan here.)  Unpermitted student use of materials produced in the course of that relationship was a breach of trust.  As faculty started to teach classes and the number of students in the room multiplied, the student-as-consumer conception, which most faculty hate, gained traction.  We take their tuition dollars, we offer them content, and we expect them to internalize it or at least regurgitate it.  Why should faculty be surprised when our students think that this knowledge belongs to them?  (Not that “knowledge” as such belongs to them, or to anyone.)  Or, put in 21st century terms, why should we be surprised when students want to remix it?  Students-as-consumers is a model that has relatively little to recommend it, but students-as-remixers is not the same thing as students-as-apprentices.  These are both community-based models — which is good — but they are different sorts of communities.  A lot of the educational message is blurred these days, and faculty often aren’t doing much to clarify things.  What model(s) are faculty promoting?  Is there a model that faculty and students share?

Lesson #3:  Law doesn’t go away, and copyright doesn’t become irrelevant, just because we are living in a Web 2.0 era.  Law faculty who have written to swapnotes.com to object to posting of their content are getting heard, though the end game isn’t clear.  They’re engaging in a non-statutory version of the DMCA Section 512(c) notice-and-takedown process that’s at the heart of Viacom v. YouTube.  The problems with Section 512, as we have known for some time, are that it scales badly, and that to “property”-minded content producers, it appears to put the burden of monitoring misuse of copyrighted works on the wrong party — on the producer, rather than the re-user.  Is there a right legal answer to swapnotes.com or, for that matter, to Viacom v. YouTube?  I doubt it.  Are there solutions that don’t wrench the law in weird ways but that still offer both (all) sides a way forward?  I hope so.  Law, whether statutory or judicial, is a blunt and expensive instrument for dealing with is really a conceptual problem. Legal education, like the entertainment industries, may need to rethink its blend of market- and community-based models.  Just wait until law students start posting videoclips on YouTube.  It won’t be long, if it hasn’t started already.

3 thoughts on “Sharing, YouTube, and the Law School Community

  1. Mike: Of course there’s a solution that offers all sides a way forward. And it respects both property rights and all business models. It’s glaringly simple and yet the swapnotes folks and many law professors seem to discount it entirely, presumably because it isn’t “fair” or it just doesn’t jibe with the Web 2.0 world we live in. Here it is: swapnotes (or YouTube, which at least made the effort (although not until Viacom came knocking)) can LICENSE the copyrighted material. I would gladly offer swapnotes a blanket license (so we don’t have to negotiate over each item posted to my page on swapnotes) in my copyright in my exams, notes, outlines, etc. It might eat into swapnote’s bottom line. Tough. There is no reason why it shouldn’t. I know IP profs hate this analogy, but it also eats into grocery stores’ bottom lines to have to buy the produce they sell. Ditto . . . every other business in the world! So why should Swapnotes have some sort of moral claim on my property just because it’s cheap for them to obtain it? The answer is–they don’t. But they needn’t abandon all hope. They need only offer to license the protected material. In this Web 2.0 world, the transaction costs are low. It needn’t be a black and white world of “swapnotes posts my content unless I tell it not to” (opt-out) or “swapnotes posts nothing unless I authorize it” (opt-in). Either of those can be a precondition for bargaining, but too often the analysis stops at the extreme. The real answer lies in between with a license. Copyright doesn’t have to shut down swapnotes, and swapnotes doesn’t have to cause professors to change their business models.

  2. Mike,

    Greatly enjoyed and appreciated the post. Not all of the feedback has been negative, a number of professors have replied in support, saying they think its a great idea.

  3. Well, of course, a license is always a way out, at least so long as we assume a certain set of default entitlements and burdens. Sure, I can assume that I have a copyright in my materials, then I can attach an appropriate Creative Commons license to all of them and release them into the Web 2.0 playground, and that will take care of the transactional problem. Or I could deposit the notes in some online repository and charge a PayPal tax for the privilege of downloading copies. I really don’t care whether swapnotes.com (or YouTube) can make money or not; it doesn’t bother me if either one of them has to add an expense that they’d rather not add. And it also doesn’t bother me if Viacom (or a law professor) has to add an unexpected expense.

    The transactional problem, though, doesn’t interest me all that much; what interests me is the default set of entitlements and burdens. And that’s because, in part, the transactions costs aren’t always as low as we might assume, and more important because rethinking the default set sometimes leads to new places altogether. What interests me is how the shape of the arguments in both contexts illustrates some baseline assumptions about the character of the “community” (note scare quotes) or group or market that’s in play, and how that “community” is functioning or should function in the future.

    Frankly, and YouTube aside, I rather dislike the premise that my relationship with my students, and students’ relationships with me and with each other, should be placed so explicitly on a transactional footing. If that’s the case — and you and others may well disagree with me, which is fine — then how does the “swapnotes” issue (if it is an issue) get managed? A “license it” solution isn’t normatively appropriate. YouTube may turn out to be an entirely different problem; a transactional baseline may be entirely right — though the default allocation problem remains. If it turns out that Viacom holds the entitlement by default, then presumably YouTube has to pay, somehow. If, on the other hand, YouTube is assigned the entitlement, it’s conceivable that Viacom is writing the checks. Why, in hypothetical other words, should YouTube agree to be Viacom’s best advertiser — for free?

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