Intellectual Property

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Faculty create large quantities
of content, but aren’t always
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aware of their intellectual
property rights, or lack thereof.
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In this episode, we explore legal
issues associated with copyright law.
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[MUSIC]
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JOHN: Thanks for joining us for
Tea for Teaching, an informal
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discussion of innovative and effective
practices in teaching and learning.
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REBECCA: This podcast series is
hosted by John Kane, an economist…
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JOHN: …and Rebecca Mushtare,
a graphic designer…
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REBECCA: …and features guests doing
important research and advocacy work
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to make higher education more inclusive
and supportive of all learners.
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[MUSIC]
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JOHN: Our guest today is Kent Kauffman, a
Professor of Business Law and MBA Programs
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Faculty Liaison in the Doermer School of
Business at Purdue University Fort Wayne.
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He is also the author of Navigating
Choppy Waters: Key Legal Issues
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College Faculty Need to Know.
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Welcome back, Kent.
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KENT: Thank you very much for having me.
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I'm always glad to talk with the two
of you, and I appreciate the invitation
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again to be on your awesome podcast.
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REBECCA: Today's teas are:… Kent,
are you drinking tea with us today?
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KENT: I am drinking tea with you today.
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Due to the heat here in Indiana,
I don't know if I'm pronouncing it
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correctly, but I've been drinking
the Luzianne iced tea, where the tea
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bags are turned into an iced tea.
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So that's my tea of choice as of late.
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REBECCA: Something nice and cool
seems like a good option in the heat.
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KENT: Absolutely.
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JOHN: It's a hot summer
pretty much everywhere.
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And I am drinking a blueberry green tea.
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REBECCA: Green must be the theme in here
because I also have green tea today, John.
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I have a jasmine green.
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JOHN: Very good.
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REBECCA: Looking for something
lighter for the summer.
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[LAUGHTER]
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JOHN: So we've invited you here
today to discuss intellectual
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property issues for faculty.
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One issue that comes up fairly
often for faculty is the question
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of ownership of course materials
that are created by faculty.
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Who owns the copyright to course
materials that is stored in
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a learning management system.
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KENT: Well, I think that's a really
needful and urgent question, and
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to me, it sort of parallels the
urgency of academic freedom issues
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that faculty face right now.
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Because both of those issues involve
finding out well, what what are my
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rights, whether it's my right to teach
and research the way my discipline
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respects, or my rights with respect
to the work products I create that are
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attendant to, in this case, my teaching
and also my scholarship as well.
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So if I can just do a quick
tutorial, and I'll try not to
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take too much time on this.
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I think of intellectual property like
three siblings and a cousin that's
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like invited to Thanksgiving dinner,
but isn't really a part of the family,
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and the siblings are trademarks and
patents and copyrights, and that
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distant cousin is the trade secret.
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And the difference I see is this:
intellectual property traditionally gets
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its value from being publicly displayed.
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That's the point.
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What is the value of a song if no one's
ever heard you play it or sing it?
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What's the value of a script if
no one's ever said it somewhere?
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And so intellectual property law, federal
law, by statute, protects those particular
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aspects of our creative property.
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Trade secret law actually is protected
by you, and so there's a completely
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different way that we get value out
of hiding something that we think is
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valuable, and that's trade secret law.
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For us and copyright, for which faculty
more than any other intellectual
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property, notwithstanding some faculty
might deal in patent creation, but
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that's a whole ‘nother discussion.
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But as it concerns copyrights, I
think the first question to ask
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is, “What are we creating that
is actually worthy of copyright?”
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And that's not to be insulting.
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That's just to say, by way of background,
copyright does not protect our ideas.
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Don't tell someone your great idea.
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Keep it to yourself.
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Copyright law protects the
expression of your ideas.
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What the statute calls when your
ideas are “put into a tangible medium
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of expression,” or what I might
say, a fixed medium of expression.
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Your podcast is an example.
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By talking into this recording
device, there's copyright created
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automatically because this is a
recording of the expression of our ideas.
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So once we understand that copyright
protects our work automatically,
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we don't need to seek a copyright
registration to get that protection.
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The beautiful thing about it is it
protects it automatically once it's
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put into a fixed or tangible medium of
expression, but the next question is,
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and this is the perhaps insulting part,
is “What are we doing that's worthy
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of copyright protection?” Because that
requires creativity, and there is a
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Supreme Court case involving the phone
book to which many younger listeners
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might say, "What's that?” [LAUGHTER]
But there was a lawsuit over the phone
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book because a competing company was
using the white pages out of a phone
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book, and that went to the Supreme Court
of the United States, and they had to
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answer the question, "What here is worthy
of copyright?” And just to cut to the
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chase, the yellow pages are protected
by copyright, but the white pages are
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not because there's no creativity in
assembling people's names and addresses.
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And one feature the court mentioned is
that copyright requires that your work
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have a spark, that was their word or
a modicum, their word, of creativity.
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So if we think about that, the
question then becomes: “Am I doing
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something that is put into a tangible
medium of expression that is worthy
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of copyright that is instructional
materials?” The foundational
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document probably is the syllabus.
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I think of the syllabus as the
starter yeast of academia because
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it began somewhere else and it
keeps getting handed over and over
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again as new things are added to it.
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And so, where I work, my syllabi is longer
than it's ever been – not by design, but
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because new parts must be added to it.
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Well, I don't own a copyright
in the works of others, so we
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jump out of that for a second.
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If I'm creating PowerPoints or tests
or any other materials that come
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from the publisher of the textbook I
might use, then I have no copyright
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in those materials whatsoever.
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So then we say, okay, is my syllabus
copyrightable if I have enough
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of my own original content in it.
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That's a worthy question.
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If you think that you have enough
originality, creativity, that your
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compilation of facts, which can qualify
for copyright, are original enough, then
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you might be able to say it belongs to me.
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There can be a problem with that because
one might argue that the syllabus is the
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department's document as opposed to your
document, since even if you've created the
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class, it's still under the aegis of your
department and your university as well.
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But in terms of these instructional
materials, whether it's a syllabus or
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PowerPoints, tests, really interesting
essay assignments or projects that
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students do, I would argue that a lot
of those can be worthy of copyright
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protection because they are first put
in a fixed medium of expression because
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they're written down digitally or on
paper, and I would say that really, for
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faculty that care about what they're
doing and trying to make a vibrant life
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out of their classes, absolutely they
can be protected by copyright because
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they meet those modicum standards,
those spark standards of creativity.
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So yes, I would say this, from an initial
standpoint, if you believe that your work
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meets that expectation of creativity,
then you could make the argument that
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your instructional materials could be
copyrightable and belong to you, but
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there's this however, and the however
might lead to the next topic, which is
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instructional or institutional policy.
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REBECCA: I can imagine that if folks
were looking at copyright law at
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face value, they might assume that
this would fall under works for hire
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because it's part of your job, maybe,
to create instructional materials.
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So, can you talk a little bit more
about where this role of institutional
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policy kind of dovetails with the
law here in determining who has
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the copyright to these materials?
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KENT: Yeah, there's two issues there
to think about, and one is policy,
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and the other is works for hire.
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And if I can just swing around
to the policy issue, and then
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get to works for hire next.
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The beauty from an employment standpoint
is that universities, and I'm saying
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this not as an employer, but from their
standpoint, the beauty is that they
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can create institutional policy that
also covers intellectual property.
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And one way that a lot of universities
cover our instructional materials
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is that they will define categories
of work we create at a university,
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and those are usually three types:
traditionally administrative, and then
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scholarly, and then instructional.
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Now, someone like me who's really a
big believer of scholarly teaching…
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One could argue that teaching materials
or instructional materials could fall
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into the category of being scholarly,
but that's again another discussion.
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As it concerns administrative materials.
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If you at your university are doing a
teaching evaluation of a tenure-track
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faculty member, no matter how well
you write that letter, it's likely not
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to belong to you because universities
categorize those documents as simply
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being university-owned property.
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As it concerns scholarly works,
peer-reviewed papers, poster
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presentations, books we write.
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What I find interesting there is that: 1.
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universities tend to exempt themselves
from ownership of those to start with,
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which I think is almost a moot point
because I have to transfer copyright
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to those works anyways to the publisher
generally to get them published.
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And there is open-access publications,
I realize that, but still we
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live in a world where lots of
our publications are conditioned
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on our releasing our copyright.
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So my university can't claim
ownership to my books, for instance,
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because I don't have any ownership
[LAUGHTER] to my books as well.
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So then the next thing is the
instructional materials, and here we get a
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situation where universities do something
that I think I'm not comfortable with it.
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But what happens is they often will say
you own your instructional materials,
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but you have granted to us, by condition
of employment, a non-exclusive license
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to use your materials, and the key there
is, if you look at your institutional
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policy, if it has that, is it will often
say non-exclusive because an exclusive
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license, similar to a transfer of
copyright, requires both signatures.
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I must sign, and so must the proper
agent of the institution sign as well.
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But a non-exclusive license
doesn't need signatures.
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And so, for instance, Purdue's policy,
the university-wide policy, not just where
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I work at Fort Wayne, but across all of
Purdue institutions, is a non-exclusive,
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royalty-free, perpetual license.
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To me, that means that as it concerns my
instructional materials that are in… and
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Purdue uses what's called Brightspace
as its LMS… all of that is, in my view,
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effectively co-owned by Purdue, not owned
because they granted me the right to keep
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my copyright, which is an interesting
language phenomena to say we allow you to
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keep something that you already own as the
author of the copyrighted material, but
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a non-exclusive, perpetual, royalty-free
license does mean that they can use my
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materials, everything in Brightspace
or anyone's LMS for as long as they
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want, no matter if I work there or not.
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Some institutions limit that, they
might provide a royalty structure
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if they're using your materials
in a class you don't teach.
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Other institutions might say we
will cease using your materials if
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and when you cease working for us.
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And those are nice, gracious
ways of sort of managing that.
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But to faculty that put their
instructional materials on an LMS, as
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almost all of us do nowadays, I would
say yes, you still would own what is
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worthy of being owned for copyright
purposes, but you sort of now have a
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co-owner, effectively by your employer,
who has taken a non-exclusive or maybe
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even an exclusive license in them.
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But the work for hire situation
is a different angle to this.
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There's two ways to create a work for
hire, which would mean that the author
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is not even the copyright holder.
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They've transferred the
copyright altogether.
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The first is the easy one, and that's
where I transfer my work as an independent
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contractor to the hiring party, and
that requires two signatures there.
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A couple years ago, I wrote scripts
for some educational cartoons for
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a business law course that was
online, and I created the subjects
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for what they were looking for.
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They approved them.
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Then I gave them ideas,
and they approved them.
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Then I wrote scripts for educational
cartoons, and they approved those as well.
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Well, none of those I own
because that contract, being a
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work-for-hire independent contract,
meant that they own all my work.
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The other way is what is known
as what creative works that we
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produce in the scope or in the
course of our employment, and that's
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another part of the copyright code.
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And the scope of employment doctrine
is an agency law doctrine that says
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that if I'm hired to do certain types
of things that might involve creating
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intellectual property, my employer gets
them automatically, not by needing a
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signature because I'm creating them in
the scope or course of my employment.
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For faculty, an outsider might say,
"Well, everything you do is in the
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scope of employment, and therefore,
wouldn't your university own them all?
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Well, yes and no.
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And to the no part, I'm not a greeting
card writer at Hallmark, so I can't
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disclaim some of my really pithy
statements and say, "Well, I own this
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one because I'm hired to do that.” But
as agency law looks at what faculty
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do, as it concerns instructional
materials, it's a confusing world.
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Is that in the scope of my employment?
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There's no consensus on that.
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Some courts will say it is in the
scope of your employment, particularly
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as it concerns curricular materials.
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There's a case, I find it kind of sad,
where a woman… she was a department chair
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at a two-year college tasked with creating
a whole new program at her college
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within her discipline… and eventually
she was let go and she brought an age
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discrimination claim and along the way
she filed copyright registrations for the
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curricular documents that she created.
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One doesn't have to do that to
own them, but one needs to do that
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if they're going to sue someone
for infringing their copyright.
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Well, she lost on both counts and, as
concerned the copyright issue, the court
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said part of her job as a department
chair included doing things like creating
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new curricular materials, and those
are clearly the work of her employer.
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But for regular faculty who are creating
courses, not new courses by way of a
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grant, so if you're hired to create a
new course by way of a grant, that's
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a work for hire in the first category.
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You're going to sign a document and
give up your rights to that material.
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But for the work we create that's
regular instructional work, there isn't
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consensus, in my opinion, legally on
whether that really is work for hire,
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and therefore we don't own it, anyways.
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But if there's an institutional
policy that actually carves out
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the whole work-for-hire concept.
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So for instance, I know that my
instruction materials are not work for
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hire at Purdue because the institutional
intellectual property policy already
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says I own them and grant them a license.
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Well, therefore, it's not work for
hire because they said I own them;
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in a work-for-hire situation, I
wouldn't own them to start with.
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JOHN: I know in the SUNY system,
any work that's created for online
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classes, as part of an agreement with
the union, copyright is maintained by
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the faculty members, however, at least
a number of institutions have worked
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with adjuncts to develop courses as
works for hire as a way around that.
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00:15:58,989 --> 00:16:02,000
So that we have a mix of
both of those in SUNY.
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I think that Oswego, we allow the
creators to own the copyright unless
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there's a work-for-hire arrangement
that overrides those conditions.
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00:16:10,879 --> 00:16:14,710
So most of the issues that
I've seen have been in terms of
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online content that's created.
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But what about lectures that
are delivered in person?
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Do you own the rights to those?
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KENT: There's the question.
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I enjoy face-to-face classes.
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I certainly am happy to have online
classes, and I take them very seriously.
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I want to make them vibrant, but I
still really enjoy being in a room
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with people and having a dialog.
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Here's an interesting case.
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So there was a lady who called
herself the Banana Lady.
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You can look her up online.
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She dresses in a banana costume,
and she does like corporate events.
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But what she really does is she tends
to sue people who take pictures of
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her at her events and claim that
these are copyright infringements.
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And in the federal court system here in
Indiana, the Seventh Circuit Court of
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Appeals not only ruled against her, but
one thing that they said was she was
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trying to sort of gin up litigation.
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But they said that people taking
photos of her aren't infringing on
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her copyright because she wasn't
recording herself doing her banana
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woman sort of dance routine stuff.
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So that's the starting point.
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If you're not recording yourself in
class, then you're not creating a tangible
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medium expression of your teaching,
no matter how creative it might be.
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So, A] are you recording it?
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B] is who's recording it, because
if your university is recording
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it either automatically or that
you use university technology to
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00:17:38,589 --> 00:17:43,110
record it, I would regrettably
argue that that's not your property.
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00:17:43,459 --> 00:17:47,749
It's probably your employer's property
if you're using its technology
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00:17:47,970 --> 00:17:52,190
as the conduit for creating a
tangible medium of expression.
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00:17:52,430 --> 00:17:55,990
If you're recording it yourself and
your university is recording it, I
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00:17:55,990 --> 00:17:59,999
think you could claim you have ownership
over what you yourself are recording.
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00:18:00,210 --> 00:18:05,350
But if you're not recording it, there's
no copyright, and that goes to everything.
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00:18:05,609 --> 00:18:09,169
If you put notes on a blackboard,
you're putting it in a
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tangible medium of expression.
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But if you're erasing
it, it's gone anyways.
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00:18:12,889 --> 00:18:16,500
And so the question becomes: “Well,
then, what do students own if they're
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taking notes from what I'm doing
in class?” If they're taking notes
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00:18:21,349 --> 00:18:26,139
from what you're saying and you're
not recording it, they have a valid
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00:18:26,160 --> 00:18:29,019
claim that they own their notes.
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00:18:29,180 --> 00:18:32,789
Again, something can be not worthy of
copyright, but still be your property.
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00:18:33,169 --> 00:18:36,990
Copyright is a type of property,
so I could own something
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that's not worthy of copyright.
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00:18:38,610 --> 00:18:40,259
That's what trade secrets are all about.
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00:18:40,520 --> 00:18:44,159
So that a business who has a client
list they believe is a trade secret
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00:18:44,160 --> 00:18:47,379
property that's not copyrightable,
but it's still their property.
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00:18:47,629 --> 00:18:51,090
So I'm not saying a student owns the
copyright in their class notes because
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that's a copyright creativity question.
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But they could argue they own
those notes if they're taking
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00:18:56,820 --> 00:18:58,539
notes off of what I'm saying.
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If they're taking notes off
of my powerpoints, and my
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00:19:01,269 --> 00:19:02,620
powerpoints belong to me.
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00:19:02,830 --> 00:19:05,500
I would argue that they're actually
just simply transcribing what is
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00:19:05,500 --> 00:19:08,119
already mine, and they don't own that.
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00:19:08,479 --> 00:19:12,700
There are some cases, very few, but
they're out there, where faculty have
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00:19:12,700 --> 00:19:17,619
sued publishing companies because in some
really large universities, publishing
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00:19:17,619 --> 00:19:21,239
companies might sell you notes for the
classes that you're taking that are highly
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00:19:21,519 --> 00:19:26,719
common large enrollment classes, and
faculty have sued saying that's actually
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00:19:26,720 --> 00:19:31,139
my property, but students are selling
those notes to publishing companies, who
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00:19:31,139 --> 00:19:33,229
then create study guides out of them.
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00:19:33,459 --> 00:19:36,859
That's a really thorny question
because if they're simply transcribing
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what is your property, you're not
transferring your property to them.
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00:19:39,799 --> 00:19:41,389
So that would be a copyright infringement.
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00:19:41,659 --> 00:19:46,609
One area is what's called transformative
use, which is a part of what's called
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the fair-use doctrine, which allows a
person to raise a defense to copyright
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infringement by arguing a statute in
the code called the fair-use doctrine.
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And fair use is about limited usage
of some of those copyrighted work for
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00:20:01,229 --> 00:20:05,440
reasons that not are allowable, but are
part of the variables for determining
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if you're committing a non-violation
of a use of some else's material.
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Transformative use says if I use
your material in a way that's
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completely different than how
you used it, I have transformed
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your purpose into a new purpose.
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00:20:20,399 --> 00:20:24,499
So you could perhaps find a situation
where a very creative student is
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00:20:24,500 --> 00:20:29,119
creating a graphic novel out of their
class notes that might qualify as
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00:20:29,459 --> 00:20:33,989
transformative use, and they might
say that's a brand new thing, and
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it might belong to me separately.
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So just to sum that up, if you're
not recording your work, then
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00:20:41,690 --> 00:20:46,369
someone could claim ownership in
it, and that could include notes.
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00:20:46,420 --> 00:20:49,260
If you're in a situation where
students are taking down as notes
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00:20:49,430 --> 00:20:53,909
what you've already created in a
tangible form, generally speaking,
339
00:20:54,190 --> 00:20:55,520
that's not their property.
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That's your property.
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00:20:57,200 --> 00:21:01,229
REBECCA: So, on the theme of recording,
we've talked a bit about posting
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materials on the learning management
system and maybe sharing through
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the learning management system.
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But many faculty also use third-party
sites like YouTube or Vimeo that
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have licenses very similar to
what you described at Purdue.
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[LAUGHTER]
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KENT: Yes, right.
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REBECCA: So, how does copyright
work for those situations or
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00:21:18,450 --> 00:21:19,860
ownership in those contexts?
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00:21:20,209 --> 00:21:24,360
KENT: That's a really interesting and
strategically powerful question, and I
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00:21:24,360 --> 00:21:27,989
show my students when it comes to the
section in business law and intellectual
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00:21:27,989 --> 00:21:32,569
property, I show them Instagram and
Meta's terms of service for example
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00:21:32,570 --> 00:21:36,230
because what they may not realize
is that they're actually granting
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00:21:36,349 --> 00:21:41,559
co-ownership of their property to those
sites, and the language is quite broad.
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It's hard to find, but it's quite broad.
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00:21:43,110 --> 00:21:46,769
So you're raising an interesting question
that if I'm putting instructional
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materials that I've created on a
third-party site, as opposed to
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00:21:50,550 --> 00:21:55,029
my own hosted site, I'm actually
transferring rights to that site.
359
00:21:55,279 --> 00:21:57,830
That is a really scary question.
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00:21:57,849 --> 00:22:03,000
I would say the answer is yes, just
because vacation pictures aren't the only
361
00:22:03,009 --> 00:22:08,329
thing that social media companies care
about claiming as their property as well.
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00:22:08,739 --> 00:22:14,930
But as a general question to conflict
of university ownership, you could make
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00:22:14,930 --> 00:22:19,759
an argument that the university can only
license to themselves what's in their
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00:22:19,759 --> 00:22:23,910
system, and therefore there's no way
for them to use what's in a third-party
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00:22:23,910 --> 00:22:25,919
system because they have no access to it.
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00:22:26,250 --> 00:22:31,820
So if you provide students links to
external sites, which may include
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00:22:31,860 --> 00:22:38,380
third-party sites, I think you can get
around that licensing issue because it
368
00:22:38,389 --> 00:22:41,859
faces like an efficacy problem where
it's just simply not feasible for
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00:22:41,860 --> 00:22:43,619
the institution to get access to it.
370
00:22:44,059 --> 00:22:48,499
It wouldn't take very long for their
lawyers to draft new policy that
371
00:22:48,500 --> 00:22:54,760
would say you can't use third-party
sites for our classes because even
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00:22:54,760 --> 00:22:57,259
though I don't think FERPA would have
any bearing on this, you could just
373
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simply call it a FERPA risk issue.
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00:22:59,750 --> 00:23:02,949
You could call it anything that
a lawyer would want to call it.
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00:23:02,949 --> 00:23:06,530
So they could marshal those
back into the institutional LMS.
376
00:23:07,819 --> 00:23:13,489
They could also say that you must
provide them copies of what you create
377
00:23:13,529 --> 00:23:17,749
for your courses out of a courtesy of
making sure the curriculum is consistent.
378
00:23:18,009 --> 00:23:20,599
So they could get around that,
and then you're back to where
379
00:23:20,649 --> 00:23:22,110
you perhaps have started.
380
00:23:22,529 --> 00:23:25,480
So that could be an issue down the road.
381
00:23:25,500 --> 00:23:30,650
But I think initially, certainly on your
own created site, you would maintain
382
00:23:30,789 --> 00:23:32,559
all ownership over those materials.
383
00:23:32,580 --> 00:23:36,209
And if you give students access to
those materials, again, you're not
384
00:23:36,220 --> 00:23:37,799
transferring copyright to them.
385
00:23:38,209 --> 00:23:41,339
In a way, you're almost giving them
a limited license to have access
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00:23:41,339 --> 00:23:44,860
to your materials, not really
sharing ownership of it with them.
387
00:23:45,600 --> 00:23:49,700
JOHN: On a related note, suppose that
you're writing a book and you share
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00:23:49,700 --> 00:23:52,100
drafts of it with your students in an LMS.
389
00:23:52,510 --> 00:23:56,619
Are you giving up some of your property
rights to that material if the course
390
00:23:56,620 --> 00:23:58,360
was created as a work for hire?
391
00:23:58,549 --> 00:24:03,529
KENT: That is a super scary question,
and I would say that generous heart
392
00:24:03,559 --> 00:24:08,390
of saying "let me share some materials
with you” might inadvertently cause you
393
00:24:08,830 --> 00:24:13,389
to sort of step on your own rake head
there and find out that you got slapped
394
00:24:13,389 --> 00:24:18,640
with the realization that you're losing
ownership rights over that material.
395
00:24:18,860 --> 00:24:23,219
If it's protected by copyright… I
have put drafts of books that I've
396
00:24:23,219 --> 00:24:27,610
written, chapters or parts of chapters,
into an LMS to share with students as
397
00:24:27,610 --> 00:24:30,809
well as an alternative to maybe the
book I choose for the course and say
398
00:24:30,809 --> 00:24:34,440
here's an alternative way of looking
at the material because that's already
399
00:24:34,489 --> 00:24:35,979
owned by the publishing company.
400
00:24:36,430 --> 00:24:40,169
I'm not granting them any rights because
I don't have rights to own it as well.
401
00:24:40,189 --> 00:24:44,459
But unpublished work that you maintain
the copyright in because you own it
402
00:24:44,459 --> 00:24:48,739
as soon as you write it, putting it
in an LMS in a way at least grants
403
00:24:48,739 --> 00:24:53,860
a license to that, unless you figure
out a way to scrub it from your LMS at
404
00:24:53,860 --> 00:24:58,159
the end of the semester and remove it
as an archived piece of information.
405
00:24:59,360 --> 00:25:02,769
REBECCA: AI has been a very popular
[LAUGHTER] topic on this podcast
406
00:25:02,769 --> 00:25:07,219
and just in general, and folks are
certainly utilizing generative AI
407
00:25:07,229 --> 00:25:13,149
platforms to edit materials, enhance
their work, use it as a dialog for
408
00:25:13,150 --> 00:25:14,769
feedback, and those kinds of things.
409
00:25:15,259 --> 00:25:20,060
So, does the user own any rights to
images, text, and other content that
410
00:25:20,060 --> 00:25:22,859
they're using generative AI to create?
411
00:25:23,430 --> 00:25:24,409
KENT: Boy, here we go.
412
00:25:24,409 --> 00:25:26,599
Who can take another AI discussion, right?
413
00:25:26,930 --> 00:25:30,549
It's like when the zeitgeist
has become full tilt, and we
414
00:25:30,549 --> 00:25:31,769
just can't take it anymore.
415
00:25:31,769 --> 00:25:35,549
But this is relevant, and it
really is a needful question
416
00:25:35,549 --> 00:25:36,819
for faculty to think about.
417
00:25:36,820 --> 00:25:41,670
So, if I can just do a background
on AI and give you a lawsuit
418
00:25:41,739 --> 00:25:43,709
involving an Indonesian monkey.
419
00:25:43,769 --> 00:25:48,619
So a British photographer named David
Slater became friendly with some monkeys
420
00:25:48,619 --> 00:25:50,550
in Indonesia as a wildlife photographer.
421
00:25:50,799 --> 00:25:51,710
He gave them names.
422
00:25:51,729 --> 00:25:52,699
One was named Naruto.
423
00:25:53,289 --> 00:25:56,249
He gave them his 35 millimeter
camera, and then they started
424
00:25:56,250 --> 00:25:57,439
taking pictures of themselves.
425
00:25:57,599 --> 00:26:00,829
He then published a book of
monkey selfies, which is charming
426
00:26:00,830 --> 00:26:01,999
in a variety of different ways.
427
00:26:02,000 --> 00:26:06,029
And in came people for the ethical
treatment of animals, PETA, who on behalf
428
00:26:06,029 --> 00:26:11,729
of this monkey named Naruto sued the
author of the selfie book in American
429
00:26:11,729 --> 00:26:16,439
court, alleging he violated the copyright
of the monkey who took the pictures.
430
00:26:16,690 --> 00:26:17,979
I wish I could make that up.
431
00:26:18,099 --> 00:26:20,069
I lack that creativity.
432
00:26:20,190 --> 00:26:24,150
The upshot of that lawsuit, as it
relates to AI, and it does, is this:
433
00:26:24,440 --> 00:26:27,129
unlike Solomon, everybody lost.
434
00:26:27,690 --> 00:26:30,830
PETA was thrown out of court in effect
for saying you have no standing to bring a
435
00:26:30,830 --> 00:26:32,419
lawsuit on behalfof a monkey in Indonesia.
436
00:26:32,739 --> 00:26:35,979
The photographer lost because he
didn't take the photographs, so he
437
00:26:35,979 --> 00:26:37,259
didn't have the copyright in them.
438
00:26:37,589 --> 00:26:40,149
Now you might say, “Well, didn't
the monkeys take them for him?”
439
00:26:40,529 --> 00:26:44,830
No, they're not his employees, so
it's not a work-for-hire monkey
440
00:26:44,830 --> 00:26:46,830
selfie book he was working on.
441
00:26:47,290 --> 00:26:50,610
Poor Naruto lost as well,
ultimately because of this.
442
00:26:50,920 --> 00:26:52,239
Copyright law is clear.
443
00:26:52,500 --> 00:26:55,950
To be an author, that doesn't mean
just for written word, that means
444
00:26:55,969 --> 00:26:57,410
for anything that's copyrightable.
445
00:26:57,690 --> 00:27:00,809
to be an author, you
must be a human being.
446
00:27:01,029 --> 00:27:04,729
Now, by way of contrast, corporations
are persons under the Constitution,
447
00:27:05,019 --> 00:27:09,109
but the word "person" is not the word
"human being.” So, to be a copyright
448
00:27:09,109 --> 00:27:12,259
author, you must be a human being.
449
00:27:12,570 --> 00:27:16,490
That moves us a few years later to AI.
450
00:27:16,500 --> 00:27:22,159
Nothing that comes out of large
language model AI is copyrightable.
451
00:27:22,739 --> 00:27:26,789
Now, if we get to this, it's to
me copyright infringement, but
452
00:27:26,789 --> 00:27:31,799
it's not copyrightable because
a computer is not a human being.
453
00:27:32,079 --> 00:27:36,340
So no matter what it is, if
it comes out of generative LLM
454
00:27:36,400 --> 00:27:38,239
AI, it is not copyrightable.
455
00:27:38,599 --> 00:27:40,649
We know of this for two reasons.
456
00:27:40,669 --> 00:27:45,260
One, there's an interesting case where
a super smart guy created his own AI
457
00:27:45,270 --> 00:27:50,099
system and had it create some sort of
impressionist style painting that he
458
00:27:50,099 --> 00:27:54,219
gave a title to, I think it's called
“A Recent Entrance to Paradise,” and he
459
00:27:54,220 --> 00:27:56,000
sought a copyright registration for it.
460
00:27:56,209 --> 00:27:57,040
It was denied.
461
00:27:57,299 --> 00:28:02,289
He went through the court system as far as
you can go, and he lost every time because
462
00:28:02,979 --> 00:28:05,140
AI is not an author and it can't be.
463
00:28:05,290 --> 00:28:09,059
He tried a second bite at the
apple by saying that the computer
464
00:28:09,059 --> 00:28:14,239
system he generated was a work for
hire, and he owned the work itself.
465
00:28:14,430 --> 00:28:15,709
And the court's like, you know what?
466
00:28:15,869 --> 00:28:18,759
Again, work for hire start
with a copyright author,
467
00:28:19,209 --> 00:28:20,749
that has to be a human being.
468
00:28:20,809 --> 00:28:25,760
Now that means we know that from case
law, and the Copyright Office in 2023
469
00:28:25,769 --> 00:28:32,389
issued a very long pamphlet statement,
which clearly states this: there is no
470
00:28:32,409 --> 00:28:35,689
copyright in AI-generated work at all.
471
00:28:35,889 --> 00:28:38,629
Here comes the however, and
there is one, and they did say
472
00:28:38,629 --> 00:28:40,090
this, and there's a case on it.
473
00:28:40,419 --> 00:28:46,579
They said there could be, on a
case-by-case basis, a copyright granted
474
00:28:46,589 --> 00:28:53,760
to what the copyright office called
AI-assisted work, not AI- generated work.
475
00:28:54,099 --> 00:29:00,220
I would just say, by a quick analogy as
an example, if I ask AI to write an essay
476
00:29:00,220 --> 00:29:03,519
for me, or let's just make it worse,
let's make it a paper, let's go there.
477
00:29:03,729 --> 00:29:07,769
I ask AI to write me a paper I want
to get published, and then I take what
478
00:29:07,770 --> 00:29:09,839
they give me and then I edit it myself.
479
00:29:10,089 --> 00:29:14,280
Not only is that unethical and
should be unpublishable, it's not
480
00:29:14,290 --> 00:29:16,889
copyrightable because that came out of AI.
481
00:29:16,889 --> 00:29:22,949
But suppose I write an essay that I'd like
to get published on today's educational
482
00:29:22,949 --> 00:29:27,819
issues going on in America, and the
requirement is that it must be 2500 words,
483
00:29:27,819 --> 00:29:30,179
and I just can't get down from 2700.
484
00:29:30,559 --> 00:29:35,870
If I put that into the AI system and ask
it to get me to 2500, I would argue that
485
00:29:35,889 --> 00:29:40,860
I still own the copyright in that because
I used AI to assist me in a relatively
486
00:29:40,870 --> 00:29:45,479
minor editing method, as opposed
to, in effect, co-generate with me.
487
00:29:45,490 --> 00:29:50,970
So case-by-case basis for AI-assisted
work, but AI-generated work
488
00:29:51,000 --> 00:29:52,929
there is no copyright whatsoever.
489
00:29:53,250 --> 00:29:54,889
REBECCA: I'm so glad you
shared some of these stories.
490
00:29:54,889 --> 00:29:58,009
These are some of the cases I like to
share with my art and design students.
491
00:29:58,009 --> 00:29:58,129
[LAUGHTER]
492
00:29:58,129 --> 00:29:59,849
KENT: Well, can I do
an art design for you?
493
00:29:59,849 --> 00:30:03,439
[LAUGHTER] Because the case I'm thinking
of is… and I'm terrible with names.
494
00:30:03,459 --> 00:30:07,820
The name has slipped me, but a person
used AI to write a graphic novel.
495
00:30:07,820 --> 00:30:10,989
I'm old enough to call them comic
books, but I guess that shows I'm too
496
00:30:10,990 --> 00:30:12,610
old to not know they're graphic novels.
497
00:30:12,610 --> 00:30:16,949
But a really interesting looking graphic
novel in which AI was used to generate
498
00:30:17,049 --> 00:30:21,830
all the art, and when that author of
the graphic novel saw the copyright
499
00:30:21,830 --> 00:30:27,139
in it, it was denied because it was
AI-generated art, and then the author
500
00:30:27,149 --> 00:30:32,409
sought a rehearing, you might say, of
that, and they got a Solomon-like outcome
501
00:30:32,410 --> 00:30:36,289
in which the copyright office said,
"Okay, here's the thing: you own the
502
00:30:36,289 --> 00:30:40,529
words that are in the bubbles in your
graphic novel, and you own the placement
503
00:30:40,539 --> 00:30:45,769
of them with the AI-generated art, but
you do not own the AI-generated art.” So
504
00:30:45,769 --> 00:30:51,609
that means if I wanted to use any visual
from that graphic novel, I am free and
505
00:30:51,610 --> 00:30:54,629
clear to do so because nobody owns it.
506
00:30:54,900 --> 00:31:01,099
But I can't use the cells because the
cells are copyrightable, and certainly
507
00:31:01,099 --> 00:31:04,459
the language inside those thought
bubbles are copyrightable as well.
508
00:31:04,930 --> 00:31:09,079
JOHN: What if you write something
and then you run it through AI and
509
00:31:09,079 --> 00:31:12,909
it makes some suggestions for change
and you adopt those suggestions?
510
00:31:13,209 --> 00:31:18,229
Does it depend on the extent of AI
assistance in terms of that case-by-case
511
00:31:18,229 --> 00:31:22,719
analysis, or would it be determined on
where the thoughts originated, whether
512
00:31:22,720 --> 00:31:27,039
they were human originated thoughts
that were then cleaned up and edited
513
00:31:27,629 --> 00:31:30,030
by AI or rewritten or restructured.
514
00:31:30,479 --> 00:31:34,164
It seems like there's no clear
dividing line between the work of
515
00:31:34,164 --> 00:31:36,070
the human and the work of the AI.
516
00:31:36,570 --> 00:31:39,460
KENT: That's why, and this sounds
like a cop out, and I apologize,
517
00:31:39,489 --> 00:31:41,799
but that's why case-by-case basis.
518
00:31:42,089 --> 00:31:45,280
While I'm saying I don't think the
copyright office was wrong in to say
519
00:31:45,280 --> 00:31:49,749
that, it creates a line that you'll
never see the end of, of finding out
520
00:31:49,789 --> 00:31:52,550
have I done enough for that to work.
521
00:31:52,550 --> 00:31:55,499
Like in corporate law, shareholders
can be personally liable for the
522
00:31:55,500 --> 00:31:58,720
debts of the corporation if the
corporation is undercapitalized, but
523
00:31:58,720 --> 00:32:02,289
that's not based upon a mathematical
basis of examining debt to equity.
524
00:32:02,599 --> 00:32:04,649
It's done on a case-by-case basis.
525
00:32:04,849 --> 00:32:09,500
So, in your scenario that you gave as
a hypothetical, I would say to me that
526
00:32:09,500 --> 00:32:12,659
sounds like that would belong to the
human being who started with the work.
527
00:32:13,069 --> 00:32:18,179
But how much of that goes from doing
fine tuning to actually creating really
528
00:32:18,179 --> 00:32:20,989
what is a new thing with the use of AI?
529
00:32:21,169 --> 00:32:25,889
When it becomes a new thing, as I read
that copyright advisory document, it's
530
00:32:25,889 --> 00:32:27,769
really not protected by copyright.
531
00:32:27,769 --> 00:32:30,449
And the scary thing to think
about is this, and I know that
532
00:32:30,479 --> 00:32:33,379
some AI companies will tell you
they're still not doing this.
533
00:32:33,750 --> 00:32:35,570
You believe them at your own peril.
534
00:32:35,580 --> 00:32:40,550
But once you put your own work into an AI
system, in my view, you're contributing
535
00:32:40,710 --> 00:32:45,179
[LAUGHTER] voluntarily to the copyright
infringement that is the reason for the
536
00:32:45,180 --> 00:32:51,139
existence of AI in the first place, and
so the web scraping that goes on to create
537
00:32:51,160 --> 00:32:56,290
an AI system, which is the subject of a
variety of large copyright infringement
538
00:32:56,309 --> 00:33:00,569
lawsuits that are still ongoing, you're
at least volunteering your work in an AI
539
00:33:00,879 --> 00:33:06,250
system that may allow your work to then
be used for training and other purposes
540
00:33:06,260 --> 00:33:08,269
that maybe you don't like as well.
541
00:33:08,279 --> 00:33:14,130
So there may be systems that claim that
you can eliminate that, or prohibit
542
00:33:14,130 --> 00:33:15,539
that, or stop that from happening.
543
00:33:16,090 --> 00:33:19,559
Again, the next question asked is
how would you take that to court?
544
00:33:19,989 --> 00:33:23,590
Because we live in a world that's
controlled by arbitration agreements,
545
00:33:24,090 --> 00:33:29,429
and if you have a membership or a
subscription to a paid AI system, they're
546
00:33:29,430 --> 00:33:30,989
not going to want you to sue them.
547
00:33:31,009 --> 00:33:35,030
So just like with your cell phone
agreement and your credit card agreements,
548
00:33:35,119 --> 00:33:38,559
you're going to have to arbitrate that,
which would be a nightmare anyways.
549
00:33:38,559 --> 00:33:41,469
And so in a way, it's almost
like I would say when they say
550
00:33:41,570 --> 00:33:44,669
don't lend money to family, treat
it like you're giving it away.
551
00:33:45,059 --> 00:33:47,969
I would presume to say the same thing,
if you're going to put your work in
552
00:33:47,969 --> 00:33:52,969
an AI system, presume you're giving it
away for purposes you can't control.
553
00:33:53,119 --> 00:33:56,919
But if the purpose why you need to
use it in an AI system overwhelms
554
00:33:56,919 --> 00:33:58,599
that, then just go ahead and do that.
555
00:33:59,360 --> 00:34:02,649
REBECCA: So I want to like pull a thread
that you've hinted at in a few different
556
00:34:02,650 --> 00:34:06,850
places already, which is some of the
work that we may have created that are
557
00:34:06,850 --> 00:34:12,370
our own intellectual property has been
scraped and is part of these systems.
558
00:34:12,500 --> 00:34:16,339
And this is certainly something that comes
up a lot in my land of art and design,
559
00:34:16,500 --> 00:34:21,659
where particular images of artworks or
whatever may be scraped and now are part
560
00:34:21,659 --> 00:34:26,079
of these large language models that are
now used to create these images that
561
00:34:26,079 --> 00:34:27,789
are not copyrightable, [LAUGHTER] right?
562
00:34:28,179 --> 00:34:32,689
And so faculty may be using AI to
generate images and things to illustrate
563
00:34:32,689 --> 00:34:37,059
their ideas or other things, but it's
pulling on a database of things that
564
00:34:37,059 --> 00:34:38,709
don't necessarily belong to them.
565
00:34:38,719 --> 00:34:41,560
Can you talk just a little
bit about that angle?
566
00:34:42,219 --> 00:34:43,110
KENT: Yeah, the question.
567
00:34:43,119 --> 00:34:47,130
might be, if I'm hearing this correctly,
is it possible that a faculty member
568
00:34:47,130 --> 00:34:50,389
is infringing on the copyright of
somebody else when they're using AI
569
00:34:51,190 --> 00:34:55,120
materials that they're pulling out,
even if they're strategically asking
570
00:34:55,120 --> 00:34:59,670
for what they want to ask, because
what has gone into AI is, to me, an
571
00:34:59,670 --> 00:35:01,349
infringement of someone else's copyright.
572
00:35:01,500 --> 00:35:04,860
And I think that's a big question
because even though there's no
573
00:35:05,389 --> 00:35:10,400
copyrighting what comes out of it,
what went into it, in my opinion, has
574
00:35:10,410 --> 00:35:12,689
violated the copyright of the author.
575
00:35:12,979 --> 00:35:17,679
And so I would say that faculty
aren't infringing on the copyright
576
00:35:17,690 --> 00:35:21,609
of an AI system by using AI for
whatever they're using it for.
577
00:35:22,039 --> 00:35:25,079
The lawsuits that are ongoing
are still ongoing, and there
578
00:35:25,080 --> 00:35:26,140
have been some settlements.
579
00:35:26,500 --> 00:35:30,120
I'm an author of a textbook that's
owned by Cengage so I know I'm in
580
00:35:30,120 --> 00:35:34,289
a settlement with the AI system
Anthropic, and that settlement is
581
00:35:34,289 --> 00:35:36,030
in, I think, the billions of dollars.
582
00:35:36,050 --> 00:35:40,460
But what it gives is to each copyright
holder a couple thousand dollars.
583
00:35:40,570 --> 00:35:43,080
And I think it's kind of unfortunate,
but that is the way that it's going,
584
00:35:43,080 --> 00:35:48,410
is that the capital that those AI
companies have is so huge that they
585
00:35:48,410 --> 00:35:50,880
can settle a class action lawsuit.
586
00:35:51,120 --> 00:35:53,169
And some authors have said, "I'm
not going to be a part of this.
587
00:35:53,170 --> 00:35:57,759
I'm going to sue individually.” To them,
I say, "Godspeed.” But those settlements
588
00:35:57,760 --> 00:36:01,679
allow them to just simply wipe that as an
expense and then continuing what they're
589
00:36:01,680 --> 00:36:07,520
doing, but the ethical issue is: Am I
doing something I really should be doing?
590
00:36:07,799 --> 00:36:12,710
Am I using AI to generate ideas for
myself or quick answers I can't find,
591
00:36:12,710 --> 00:36:17,349
or am I using it to actually create
work that I want to claim as my own if
592
00:36:17,349 --> 00:36:23,249
I massage it with my own assistance when
in fact it came originally from another
593
00:36:23,270 --> 00:36:27,680
author or even an academic author who
sort of lost their rights to it when
594
00:36:27,680 --> 00:36:29,829
it was web scraped into an AI system.
595
00:36:30,070 --> 00:36:31,189
It's a deep question.
596
00:36:31,439 --> 00:36:35,109
It's not a copyright infringement to
the AI system, but it could be sort
597
00:36:35,109 --> 00:36:39,199
of an ethical infringement to the
original person who didn't choose to
598
00:36:39,199 --> 00:36:41,179
lose their work into an AI system.
599
00:36:41,720 --> 00:36:43,539
JOHN: Now let's take that
just a little bit further.
600
00:36:43,559 --> 00:36:48,579
Suppose you used it as a faculty member
to generate some imagery that goes into
601
00:36:48,580 --> 00:36:53,529
a book that you sold to a publisher, and
then the imagery that was created by the
602
00:36:53,839 --> 00:36:59,649
AI platform involves a copyright violation
of the original copyright holder.
603
00:36:59,659 --> 00:36:59,679
KENT: Wow.
604
00:36:59,959 --> 00:37:03,509
JOHN: Who would be legally
responsible for that violation?
605
00:37:03,519 --> 00:37:08,159
Would it be the AI platform that
generated that, or would it be you as
606
00:37:08,159 --> 00:37:13,479
the author who is using essentially
slightly modified copyrighted material?
607
00:37:13,860 --> 00:37:17,379
KENT: Yeah, that is not only
novel and really brilliant.
608
00:37:17,750 --> 00:37:22,350
It is, to my knowledge and my research,
unanswered as of now, so I'm only
609
00:37:22,350 --> 00:37:27,539
projecting what I think is the case,
and I do see a world where perhaps an
610
00:37:27,540 --> 00:37:32,479
original owner, let's say, of art that
ended up in an AI system that ended
611
00:37:32,500 --> 00:37:38,850
up again in someone else's work, could
sue that end user, saying you infringed
612
00:37:38,909 --> 00:37:43,960
on my copyright, and you could find a
situation where a faculty member might
613
00:37:43,969 --> 00:37:47,500
have to ask themselves, "Do I have an
insurance policy that would cover the
614
00:37:47,500 --> 00:37:52,569
legal costs of defending myself in an
infringement lawsuit?” Because let's
615
00:37:52,569 --> 00:37:56,619
say that suppose that happened to me,
perish the thought, is that a situation
616
00:37:56,619 --> 00:37:58,969
where Purdue is duty bound to defend me?
617
00:37:59,279 --> 00:38:04,510
But if, like you said a book, what we've
said is these books tend to be not owned
618
00:38:04,510 --> 00:38:08,819
by institutions because their copyright
is exchanged for some fee structure.
619
00:38:09,429 --> 00:38:14,709
But if you read your publishing contracts
carefully, you owe the publisher a hold
620
00:38:14,729 --> 00:38:22,119
harmless clause to make them whole if
they violate copyright because of what
621
00:38:22,129 --> 00:38:27,909
you put into a book they published, and
so that's a very scary financial question.
622
00:38:28,149 --> 00:38:30,999
And again, that's something
to think long and hard about
623
00:38:31,110 --> 00:38:34,479
before using AI-generated art.
624
00:38:34,930 --> 00:38:37,200
And again, it doesn't matter
if you have that background
625
00:38:37,200 --> 00:38:38,570
knowledge like Rebecca does.
626
00:38:38,570 --> 00:38:42,189
It matters if you're simply using work
that really is sourced to somebody
627
00:38:42,190 --> 00:38:46,630
else, because the middleman, in this
case AI, is not liable for it, at
628
00:38:46,630 --> 00:38:48,920
least not yet, and maybe not ever.
629
00:38:49,190 --> 00:38:51,269
But you, the end user, could be.
630
00:38:51,889 --> 00:38:55,729
REBECCA: We haven't talked a lot
about the role that students play.
631
00:38:55,859 --> 00:38:59,889
Students are often creating work;
they're submitting it to you, maybe
632
00:38:59,889 --> 00:39:01,669
as a faculty member to review.
633
00:39:02,099 --> 00:39:04,980
Now you have a copy of it
in your possession, perhaps.
634
00:39:05,429 --> 00:39:07,639
Do students own their own classwork?
635
00:39:08,079 --> 00:39:10,159
KENT: There is a lot
to say about students.
636
00:39:10,159 --> 00:39:13,389
It's not just the cheating part,
although that is worthy of discussion
637
00:39:13,389 --> 00:39:16,079
if you want to talk about cheating
and AI detectors and things.
638
00:39:16,419 --> 00:39:20,080
But students own their work for
the same reason that faculty might
639
00:39:20,110 --> 00:39:23,680
own their work as well, and I
think students should be treated
640
00:39:23,680 --> 00:39:25,519
respectfully with respect to their work.
641
00:39:25,529 --> 00:39:29,619
And so, if we say that the student
work passes the modicum of or
642
00:39:29,619 --> 00:39:33,359
spark of creativity test we talked
about, that does belong to them.
643
00:39:33,359 --> 00:39:35,130
There can be some exceptions.
644
00:39:35,329 --> 00:39:38,499
Sometimes institutions have policies
for graduate students if they're
645
00:39:38,500 --> 00:39:42,499
creating work that's part of a project
that is sponsored by the institution.
646
00:39:42,739 --> 00:39:46,329
Sometimes there might be policies that
say students don't own their work if it
647
00:39:46,330 --> 00:39:48,360
has been hired out by an outside party.
648
00:39:48,489 --> 00:39:52,769
For instance, suppose a marketing
class has an instructor who's
649
00:39:52,769 --> 00:39:56,199
connected to a business that wants
a project done that the students
650
00:39:56,199 --> 00:39:59,090
can free help the business, right?
651
00:39:59,220 --> 00:40:01,480
Well, who owns that
work is a huge question.
652
00:40:01,680 --> 00:40:04,479
Policies might carve exceptions
out there, but as a general
653
00:40:04,579 --> 00:40:06,819
basis, students own their work.
654
00:40:06,820 --> 00:40:11,214
So I have, in instances, particularly in
online classes, said to students, "You
655
00:40:11,214 --> 00:40:16,250
know, some of your work here is so good.
Is it okay if I use it anonymously as a
656
00:40:16,299 --> 00:40:22,120
template or a model of what ideal student
work would look like?” I shouldn't take
657
00:40:22,120 --> 00:40:23,519
their work without their permission.
658
00:40:23,519 --> 00:40:27,199
If I take their permission, I seek
an email that I can archive and
659
00:40:27,199 --> 00:40:28,580
say they granted me permission.
660
00:40:29,040 --> 00:40:32,659
There is a case, there are more than them,
but there is a case out of a university
661
00:40:32,659 --> 00:40:37,389
in Detroit where an art student was
asked by her instructor to have students
662
00:40:37,389 --> 00:40:43,009
create artwork that would be used by the
Mercedes-Benz exhibit at the Detroit Auto
663
00:40:43,009 --> 00:40:48,049
Show, and she knew what she was giving
up, but she didn't realize that Mercedes,
664
00:40:48,089 --> 00:40:52,309
with the knowledge of her instructor, used
more of her work that she created than she
665
00:40:52,309 --> 00:40:54,229
had acknowledged to give over to Mercedes.
666
00:40:54,569 --> 00:40:58,029
And she sued Mercedes-Benz for
copyright infringement, and she won.
667
00:40:58,569 --> 00:41:03,320
And it didn't matter that she didn't
have a market value in her work because
668
00:41:03,320 --> 00:41:07,869
there's another part of copyright law that
allows you to get statutory penalties for
669
00:41:07,869 --> 00:41:09,710
simply infringing on someone's copyright.
670
00:41:09,959 --> 00:41:14,509
And then she sued her professor for
what is commonly known as a breach of
671
00:41:14,509 --> 00:41:17,669
a fiduciary duty to her as a student.
672
00:41:18,019 --> 00:41:21,649
I don't know where that lawsuit
ended up, but the court allowed
673
00:41:21,679 --> 00:41:23,459
that lawsuit to go forward.
674
00:41:23,709 --> 00:41:28,730
So I would say that faculty should be
mindful that what students create in
675
00:41:28,730 --> 00:41:33,710
their coursework, including artwork,
musical compositions, and just essays
676
00:41:33,710 --> 00:41:38,720
and projects, really do belong to
the students, absent some external
677
00:41:38,720 --> 00:41:43,150
independent contractor work for higher
situation like the Mercedes Benz
678
00:41:43,150 --> 00:41:48,439
was for three of the four artwork
pieces that ended up at the exhibit.
679
00:41:48,770 --> 00:41:51,739
So I do think faculty
should be mindful of that.
680
00:41:51,740 --> 00:41:54,819
And there's a separate issue, which
is a faculty member could say, "Yeah,
681
00:41:54,820 --> 00:41:57,510
but there's no fair market value in
this student's work. So what does
682
00:41:57,510 --> 00:42:00,629
it matter?” Well, that question
alone shows why it does matter,
683
00:42:00,939 --> 00:42:05,160
because faculty should be respectful
of their students as individuals
684
00:42:05,189 --> 00:42:07,429
and as owners of their own work.
685
00:42:07,430 --> 00:42:10,879
So whether there's a market value
for it to me is not the question.
686
00:42:11,129 --> 00:42:15,579
It is, “Does it belong to them?” And
if it does, and it does, then I should
687
00:42:15,579 --> 00:42:17,989
be respectful and just ask to use it.
688
00:42:18,309 --> 00:42:21,009
And if they say yes, get it
in writing somewhere, and
689
00:42:21,009 --> 00:42:22,380
you're good to go generally,
690
00:42:22,919 --> 00:42:27,320
JOHN: Following that up a little
bit, if we upload student work into
691
00:42:27,329 --> 00:42:32,490
a plagiarism or AI detection software
package, or perhaps just to an AI
692
00:42:32,490 --> 00:42:36,970
platform to get some feedback on student
work to assist with grading, would that
693
00:42:36,970 --> 00:42:39,300
be a violation of students' rights?
694
00:42:39,559 --> 00:42:43,560
I was thinking in particular of how if
there was some artwork in that student's
695
00:42:43,639 --> 00:42:48,150
work that was uploaded that was used
for training it, it would be in some
696
00:42:48,150 --> 00:42:50,119
ways a similar sort of violation.
697
00:42:50,470 --> 00:42:51,749
KENT: I totally agree with that.
698
00:42:51,799 --> 00:42:55,470
Often AI and students, from
an HR standpoint at work, is
699
00:42:55,500 --> 00:42:56,450
discussed with respect to FERPA.
700
00:42:57,220 --> 00:43:02,059
Well, I mean, you've got to be an idiot
to use AI systems to create education
701
00:43:02,059 --> 00:43:03,479
records that would violate FERPA.
702
00:43:03,639 --> 00:43:07,119
But in terms of what you're saying
here is, am I really transferring
703
00:43:07,250 --> 00:43:11,359
without their even knowledge, perhaps,
their ownership into an AI system
704
00:43:11,379 --> 00:43:13,569
by using it for evaluation purposes?
705
00:43:14,059 --> 00:43:15,809
That is a serious thing to consider.
706
00:43:15,959 --> 00:43:17,920
Now, would anybody know that I did that?
707
00:43:18,610 --> 00:43:22,319
They could argue the only way that my
work ended up in an AI system is I turned
708
00:43:22,320 --> 00:43:24,349
it into you, and you stuck it in there.
709
00:43:24,519 --> 00:43:27,659
So it wouldn't be terribly
hard to figure that out.
710
00:43:27,820 --> 00:43:31,599
But that's an ethical question
and a legal question as well.
711
00:43:32,169 --> 00:43:36,649
One issue to think about with respect
to AI detection, if I can just mention
712
00:43:36,649 --> 00:43:41,479
that, is when you're using it, you really
then transferring copyright because the
713
00:43:41,479 --> 00:43:46,529
original plagiarism detector that we all
knew… I never used it… in fact, I didn't
714
00:43:46,529 --> 00:43:50,459
pronounce it correctly unless someone
corrected me on it is Turnitin, but
715
00:43:50,660 --> 00:43:54,800
students from a high school class sued
Turnitin for copyright infringement, and
716
00:43:54,800 --> 00:43:59,730
I say “you go, good for you,” and they
said you took my papers and violated my
717
00:43:59,739 --> 00:44:03,979
copyright by sticking in to Turnitin, and
the students lost because the court said
718
00:44:04,369 --> 00:44:11,170
this is a transformative use of someone
else's work for plagiarism detection, and
719
00:44:11,170 --> 00:44:17,159
there is no infringement on their ability
to publish their work by being archived
720
00:44:17,369 --> 00:44:19,649
for plagiarism detection purposes.
721
00:44:19,959 --> 00:44:22,700
That's not, however, what's going on now.
722
00:44:22,949 --> 00:44:27,059
Because even Turnitin's AI system has
been turned off by some universities.
723
00:44:27,309 --> 00:44:30,980
So I would say this: here's
some free legal advice, which
724
00:44:30,980 --> 00:44:32,270
means it's worth nothing.
725
00:44:33,020 --> 00:44:34,560
Don't use AI detectors.
726
00:44:34,850 --> 00:44:35,850
Simply don't do it.
727
00:44:35,890 --> 00:44:39,170
It's not worth it for a variety of
reasons, and the most important reason is
728
00:44:39,170 --> 00:44:43,839
to me it's error prone, and the last thing
a faculty member should do from a legal
729
00:44:43,840 --> 00:44:48,710
protection standpoint is accuse a student
of cheating based upon an AI detection
730
00:44:48,710 --> 00:44:51,920
system because they have been known to
be error prone, they've been proven error
731
00:44:51,920 --> 00:44:56,589
prone, and even if they're improving
through retraining, they are error prone.
732
00:44:56,590 --> 00:45:01,830
If I haven't said that yet, and if you're
saying I'm giving up my sort of autonomy
733
00:45:01,830 --> 00:45:06,460
as a judgment maker to an AI system,
which is based upon predicting the next
734
00:45:06,460 --> 00:45:08,809
logical word, that's why they fail.
735
00:45:08,820 --> 00:45:13,489
That's why they make mistakes because
they're based upon perplexity, “What
736
00:45:13,489 --> 00:45:20,519
is the next most logical word coming
up that we think you want?” So if I say
737
00:45:20,759 --> 00:45:25,620
I'm dropping my children off at blank,
logically it's going to be perhaps
738
00:45:25,629 --> 00:45:28,529
school or the playground or the pool.
739
00:45:28,680 --> 00:45:30,160
That's the lower perplexity.
740
00:45:30,239 --> 00:45:33,619
Well, you're giving up your autonomy,
your judgment decision when you're saying
741
00:45:33,619 --> 00:45:35,569
to AI, check if this has been cheating.
742
00:45:35,659 --> 00:45:39,530
Now, if you can reverse engineer
that by saying I put your work in
743
00:45:39,530 --> 00:45:43,469
an AI system and it showed that it
came out of already published work.
744
00:45:43,650 --> 00:45:45,579
That's a traditional plagiarism detector.
745
00:45:45,750 --> 00:45:52,179
But AI systems also flag often non-native
English speakers as cheating because
746
00:45:52,179 --> 00:45:56,210
of the way they write sentences with
low perplexity and what's called
747
00:45:56,290 --> 00:45:58,390
burstiness, which is an interesting word.
748
00:45:58,409 --> 00:46:01,909
Burstiness is the variation we
use in the sentences we write:
749
00:46:02,159 --> 00:46:04,330
short, long, those kinds of things.
750
00:46:04,339 --> 00:46:08,780
So, non-native English speakers and
sometimes autistic students are flagged
751
00:46:08,919 --> 00:46:12,979
because of the low burstiness in their
sentence structures as being cheating.
752
00:46:12,979 --> 00:46:17,450
So, to me, just don't use AI
detectors because AI detectors also
753
00:46:17,450 --> 00:46:19,850
sell humanizers to students as well.
754
00:46:20,040 --> 00:46:24,519
AI humanizers are like police officers
selling radar detectors on weekends.
755
00:46:24,720 --> 00:46:28,459
So if you want to avoid being caught by
us by this product, when you're dealing
756
00:46:28,459 --> 00:46:33,219
in a world where AI humanizers are already
being used by students to bypass your
757
00:46:33,219 --> 00:46:37,149
using AI detection, then the question
is, what are you doing for your job?
758
00:46:37,540 --> 00:46:40,560
Is that your job to be the hall
monitor of all hall monitors?
759
00:46:40,789 --> 00:46:41,819
And the cheating is rampant.
760
00:46:42,099 --> 00:46:45,129
Just recently, I think a Brown
University award-winning economics
761
00:46:45,129 --> 00:46:48,959
professor realized that allowing
his students to do a take-home exam
762
00:46:49,139 --> 00:46:53,029
basically the AI cheating was rampant,
and he was just horrified by that.
763
00:46:53,529 --> 00:46:57,299
So we know that it's going on, and I'm not
saying that we shouldn't care about it.
764
00:46:57,589 --> 00:47:01,220
What I'm saying is, out of all the
time you have in your life, of which
765
00:47:01,220 --> 00:47:06,110
a lot of it is work, how much of
it can you give to hunting down the
766
00:47:06,110 --> 00:47:08,759
possible AI cheaters in your classes?
767
00:47:09,029 --> 00:47:12,899
I don't have that kind of time,
and if I'm going to be wrong, I'm
768
00:47:12,899 --> 00:47:14,669
really wasting my time as well.
769
00:47:14,679 --> 00:47:17,059
So I think there's a legal
issue with using AI detectors.
770
00:47:17,389 --> 00:47:21,939
MIT, who you can, if you want to, you
can source MIT as the first creator
771
00:47:21,940 --> 00:47:24,699
of an AI system, says don't use them.
772
00:47:24,699 --> 00:47:29,350
So if MIT's teaching and scholarship
learning center says don't use them,
773
00:47:29,570 --> 00:47:31,580
why do I need to seek a second opinion?
774
00:47:32,050 --> 00:47:36,310
I'm not going to use them, and so I'm
not saying you're wrong to use them.
775
00:47:36,599 --> 00:47:41,189
I'm saying you use them at your own
peril because of the issues involving
776
00:47:41,460 --> 00:47:44,819
the last thing I want to be accused of
is committing an act against a student
777
00:47:44,830 --> 00:47:47,169
that is known as arbitrary or capricious.
778
00:47:47,369 --> 00:47:49,300
Sometimes it's called
arbitrary and capricious.
779
00:47:49,570 --> 00:47:53,560
One of the few areas where a faculty
member faces a legal risk is when they
780
00:47:53,650 --> 00:47:58,819
act arbitrarily towards a student, and
I believe using an AI detector as your
781
00:47:58,820 --> 00:48:04,700
reason for accusing someone as cheating
is getting you into that arbitrary world
782
00:48:04,700 --> 00:48:06,490
that I don't think is worth risking.
783
00:48:07,250 --> 00:48:11,950
REBECCA: On the flip side, students
often submit tests, assignments, and
784
00:48:11,959 --> 00:48:16,749
other materials created by the instructor
into generative AI platforms [LAUGHTER]
785
00:48:16,749 --> 00:48:18,380
without the consent of the instructor.
786
00:48:18,799 --> 00:48:20,640
How should faculty address this issue?
787
00:48:21,610 --> 00:48:24,939
KENT: One, and I know you don't
need me to say this, so I apologize
788
00:48:24,959 --> 00:48:27,190
for preaching to the choir here.
789
00:48:27,199 --> 00:48:32,369
But have a syllabus policy first of
all, because this may seem too smart
790
00:48:32,369 --> 00:48:36,179
by half, but a student has a good point
by saying I didn't do anything wrong
791
00:48:36,189 --> 00:48:37,460
because you didn't say I couldn't.
792
00:48:37,919 --> 00:48:43,499
And so if we presume they'll know they
shouldn't do something, then we're wrong
793
00:48:43,509 --> 00:48:45,059
as being in charge of our classroom.
794
00:48:45,059 --> 00:48:50,529
So, have a syllabus and specifically
delineate what you don't want to be done.
795
00:48:50,860 --> 00:48:56,000
You, again, can't control what they're
doing on their own time, and unless you
796
00:48:56,000 --> 00:49:01,879
get back to that Paleolithic world where
we had everything done in class, either
797
00:49:01,879 --> 00:49:07,319
on paper or in front of people, it's
hard to catch those kinds of things.
798
00:49:08,000 --> 00:49:12,219
People sometimes have students sign
honesty pledges attached to syllabi.
799
00:49:12,409 --> 00:49:13,639
Those are all well-meaning.
800
00:49:13,649 --> 00:49:15,229
They have no legal value.
801
00:49:15,709 --> 00:49:20,159
So, other than policies that allow
you to go to the dean of students
802
00:49:20,159 --> 00:49:23,959
or have some sort of institutional
disciplinary process for that if you
803
00:49:23,979 --> 00:49:29,339
catch it, outside of a clearly delineated
policy and examples and encouragement.
804
00:49:29,899 --> 00:49:32,979
And again, this may sound hokey,
but like I tell my students,
805
00:49:32,989 --> 00:49:34,039
you're in a business school.
806
00:49:34,049 --> 00:49:35,619
A business school is
a professional school.
807
00:49:35,719 --> 00:49:37,069
What does it mean to be professional?
808
00:49:37,239 --> 00:49:38,619
Like, what does it actually mean?
809
00:49:38,910 --> 00:49:40,039
It's not about making money.
810
00:49:40,319 --> 00:49:42,780
What does it mean to be a
professional in a professional school?
811
00:49:42,839 --> 00:49:44,359
How does ethics fall into that?
812
00:49:44,360 --> 00:49:48,410
And again, that may seem like I'm wasting
their time if they don't care, but at
813
00:49:48,410 --> 00:49:53,299
least they know that I've thought about
it ahead of time, and that I tell them
814
00:49:53,300 --> 00:49:56,859
it's not worth getting caught, and
you're not going to feel better down the
815
00:49:56,860 --> 00:50:01,560
road because you cheated here, and so
I just try to be that good angel on the
816
00:50:01,560 --> 00:50:06,229
one side of their shoulder, reminding
them that it's just not worth it.
817
00:50:06,279 --> 00:50:11,589
Again, that may be a waste of my time
to tell them that, but I can't hunt down
818
00:50:11,929 --> 00:50:16,090
all the possible cheating unless I bring
everything back into the classroom,
819
00:50:16,099 --> 00:50:20,690
which some faculty are again trying to
do, and we're now living in a like a
820
00:50:20,690 --> 00:50:23,909
record player world again, where we're
saying, you know, something, let's go
821
00:50:23,910 --> 00:50:27,610
back to the record player and let's
bring the classes not just back into the
822
00:50:27,610 --> 00:50:32,370
classroom, but bring the assessments down
to more of that low technology world,
823
00:50:32,380 --> 00:50:34,350
which cuts down the chance of cheating.
824
00:50:34,950 --> 00:50:36,710
JOHN: We always end with the question.
825
00:50:37,050 --> 00:50:37,849
What's next?
826
00:50:38,280 --> 00:50:43,609
KENT: Well, I'm thinking about or trying
to work on creating a podcast for myself,
827
00:50:43,609 --> 00:50:48,790
not to compete with you at all, but
on legal issues for faculty, and I'm
828
00:50:48,790 --> 00:50:52,770
trying to work out how that might come
together, and hopefully that will come
829
00:50:52,770 --> 00:50:54,969
to fruition sometime in the near future.
830
00:50:54,969 --> 00:50:58,350
And I'm working on some conference
presentations to interested faculty
831
00:50:58,350 --> 00:51:02,009
members and book groups where we
get together and discuss issues
832
00:51:02,049 --> 00:51:05,229
from this book that I've written on
legal issues for faculty, and then
833
00:51:05,279 --> 00:51:08,590
the fall semester is around the
corner, so that's on its way as well.
834
00:51:09,139 --> 00:51:10,909
REBECCA: Yeah, summer
never fails to slip by.
835
00:51:11,160 --> 00:51:14,869
KENT: No, I finished my summer semester
about a week ago, and now I'm thinking
836
00:51:14,869 --> 00:51:16,749
about the fall semester already.
837
00:51:17,039 --> 00:51:20,769
JOHN: And it's always good to see
more podcasts related to higher ed,
838
00:51:20,910 --> 00:51:23,039
including legal issues in higher ed.
839
00:51:23,209 --> 00:51:26,199
We've lost a few good ones in
the last year, so it's nice
840
00:51:26,199 --> 00:51:27,889
to see new ones coming online.
841
00:51:28,109 --> 00:51:30,869
KENT: Well, if I can overcome
the technology difficulties I
842
00:51:30,879 --> 00:51:34,739
had prior to this recording, that
may be something to figure out.
843
00:51:34,769 --> 00:51:36,380
Can I actually make this happen?
844
00:51:36,549 --> 00:51:38,199
So, thank you for the
encouragement on that.
845
00:51:38,430 --> 00:51:40,439
JOHN: If you need any
help, just let us know.
846
00:51:40,439 --> 00:51:40,540
[LAUGHTER]
847
00:51:40,540 --> 00:51:44,139
KENT: Well, that's recorded now,
[LAUGHTER] so you can’t walk that back.
848
00:51:44,659 --> 00:51:45,809
Rebecca didn't say it; you said it.
849
00:51:45,809 --> 00:51:51,389
So I have one person to go to, and I can
pinpoint when you specifically said it.
850
00:51:51,400 --> 00:51:52,489
So thank you for that invite.
851
00:51:52,489 --> 00:51:55,220
[LAUGHTER] Il I appreciate it
more than you might care to know.
852
00:51:55,729 --> 00:51:56,309
JOHN: Well, thank you.
853
00:51:56,309 --> 00:51:57,479
It's great talking to you.
854
00:51:57,479 --> 00:52:00,999
And these legal issues are ones that
many faculty are thinking about.
855
00:52:01,000 --> 00:52:02,570
So this was really helpful.
856
00:52:02,879 --> 00:52:04,660
REBECCA: And I always
enjoy these conversations.
857
00:52:04,660 --> 00:52:05,659
So thanks for joining us.
858
00:52:05,930 --> 00:52:07,839
KENT: Thank you very much
for letting me be here.
859
00:52:07,839 --> 00:52:10,880
I really have a wonderful time
talking with the two of you.
860
00:52:10,889 --> 00:52:13,829
So thank you again for allowing
me to be on your podcast.
861
00:52:22,999 --> 00:52:23,059
[MUSIC]
862
00:52:25,430 --> 00:52:28,220
JOHN: If you've enjoyed this
podcast, please subscribe and
863
00:52:28,220 --> 00:52:32,229
leave a review on Apple Podcasts
or your favorite podcast service.
864
00:52:32,829 --> 00:52:37,360
To continue the conversation, join us
on our Tea for Teaching Facebook page.
865
00:52:38,319 --> 00:52:40,920
REBECCA: You can find show
notes, transcripts and other
866
00:52:40,920 --> 00:52:43,249
materials on teaforteaching.com.
867
00:52:44,289 --> 00:52:46,250
Music by Michael Gary Brewer.
868
00:52:46,250 --> 00:52:50,250
[MUSIC]