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Note-taking and Copyright Infringment

March 1, 2012, 11:00 am

By Amy Cavender

MarginaliaI don’t often post to Twitter before I’ve even had my morning coffee, but I did this morning (February 23; see the image below for the post).

What occasioned the comment was an article in the Chronicle that I’d received an email about, noting that Kno is suing Cengage Learning for breach of contract. Nate Hoffelder has some commentary here.

As I understand the case, it boils down to this. Kno is suing because Cengage has pulled their books from Kno’s store. Cengage did this because Kno made it possible for students to annotate their textbooks and easily use those annotations, through a feature called Journal. Cengage claims that this makes derivative works possible, and is thus an infringement of their copyright.

Really

Of course, highlighting, annotating, and even quoting from books of many sorts is nothing new. We’ve written quite a lot about annotating digital texts here at ProfHacker. Really, whether we’re annotating digital or traditional print works, isn’t annotating texts a big part of what we do in academia? And don’t we go even further, and (gasp!) even use our notes—and even direct quotations—in our own work (keeping within the boundaries of fair use, of course)?

If the mere ability to preserve annotations and highlights constitutes copyright infringement, where does that leave the articles, blog posts, books, digital projects, etc. that we produce with them?

If you have any thoughts or insights on this question, please share them in the comments.


[Creative Commons licensed Flickr photo by cobra]

This entry was posted in Profession, Software, Teaching and tagged , . Bookmark the permalink.

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  • mmwwaahh

    I love it — notes as fan fiction!

    Too bad Kno hasn’t read their Barthes (or their Chaucer, or their Shakespeare).  Then they’d know that *every* work is a derivative work.  

    Kno has decided that they should do without the terminal W.  Anybody up for a contest deciding what that deleted W must stand for?  Perhaps Wisdom…

  • acavender

    Just to clarify, it’s *Cengage* that has the problem with potential derivative works.

  • mmwwaahh

    Oops, you’re right.  Oh well, I guess the W stands for “Works (that have to be pulled).”

  • littlematchgirl

     Face it, Cengage, once material is digitized making copies is easy.

  • http://twitter.com/bfister bfister

    This is a fascinating case and illustrates how insane copyright protection has become. Often the weird interpretations come out because one company thinks another one will enter the market / get bigger / make money / do something the first company wished they were ready to do or thought of first. I doubt Cengage would sue individuals for taking notes and making flash cards, but when they feel bested by another company they make crazy copyright claims to bolster their position. This reminds me of Penguin deciding to pull their ebooks out of libraries mainly because they are angry at Amazon. We’re all collateral damage in the IP wars.

  • flowney

    This Cengage interpretation is certainly far afield the purpose of copyright as defined in the US Constitution which is to “promote science (learning)  and the useful arts.”  Indeed, it is the opposite.

    There is very little about a textbook that is copyrightable.  One cannot copyright a fact, concept or idea — only the unique expression of a fact, concept or idea.  Further, it is very difficult to meet the uniqueness criterion.  How many times has Hannibal crossing the Alps been described?  Which of them, if any, is unique?

    Cengage and their ilk are simply trying to create intellectual property from the public domain — modern day alchemists and cultural thieves.

  • sand6432

     The standard for what can be protected by copyright is actually very low, and practically everything in a textbook would meet that standard. I’m not aware that the word “unique” appears anywhere in the Copyright Act. The word in the Act is “original,” and all that means is that the author wrote his own work independently and did not copy it from another’s work. It does not have to be very “original” in the sense of “creative’ or “unique.”—Sandy Thatcher

  • jsibelius

    To reiterate:  Cengage argument=SPLAT.  Read Sony Betmax case.  The precedent for this has already been set.

  • mbelvadi

    You can copyright a creative compilation of facts, however. Famous copyright case “Feist” established that the telephone “white pages” cannot be copyrighted but the “yellow pages” can be. A history textbook is not just a comprehensive list of historic facts – editorial decisions about what to include and exclude make it a copyrightable work.

    Cengage trying to claim infringement from note-taking is so completely bizarre that I think we’re missing an important part of the story here. Is it possible that the so-called “note taking” feature would allow the user to copy really large chunks of the text itself along with the reader’s notes, and save them outside of the book? I could see a publisher having a problem with something like that.

    FYI, Cengage is the company more commonly known to library users as “Gale”.

  • kdnyc

     I can buy a book and set it on fire if I want, but I can’t make little doodle marks or margin notes on the same book that I have purchased electronically, and save/export those notes? 
    Existing limitations are the main reason students are resistant to using e-texts. Kno already places proprietary limits on texts purchased thru the site, and Cengage does not want these limitations to change in any way. I suspect it sees Kno as a competitor, and even the simple innovation of allowing students to mark up or alter a text is a threat to textbook industry control. 

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