"Sovereignty of Reason:" An Approach to Sovereign Immunity and Copyright Ownership of Distance-Education Courses at Public Colleges and Universities

Journal of Law and Education, Apr 2005 by Klein, Michael W

What if it tempt you toward the flood, my lord, Or to the dreadful summit of the cliff That beetles o'er his base into the sea, And there assume some other horrible form Which might deprive your sovereignty of reason, And draw you into madness?

-William Shakespeare, Hamlet1

I. INTRODUCTION

When the Software and Information Industry Association (SIIA)-which represents over 600 software makers and content providers-reviewed an inventory of the software on the computers at South Seattle Community College, the SIIA determined some of the software to be pirated and demanded that South Seattle pay $20,473 to the association's copyright-protection fund.2 The attorney general of Washington State, relying on the U.S. Supreme Court's interpretation of sovereign immunity under the Eleventh Amendment, indicated that South Seattle Community College-as an agency of its state's government-did not have to pay the fine.3

Washington's attorney general's advice to South Seattle Community College was legally sound.4 But suppose the plaintiff were not a corporate association, but a member of South Seattle's faculty who had developed an online distance-education course. If the professor objected to the institution's use of the course and sued for copyright infringement, should the institution automatically invoke sovereign immunity to fend off the lawsuit?

The chances of this scenario occurring increase directly with the proliferation of online distance-education courses, particularly at public colleges and universities.5 Faculty members and their institutions, after significantly investing their respective time and resources in developing online courses, may turn to the courts more frequently to protect their perceived rights. Although it may appear that the law is on the side of public colleges and universities in cases of infringement, these institutions-or at least their administrators-could still be susceptible to some types of infringement actions.6 Moreover, Congress has pursued legislation that would give states incentives to waive their immunity in copyright cases.7

In this digital age, it is important for public institutions of higher education and their faculty to understand their rights regarding online courses. Sovereign immunity significantly affects the rights of both parties, and this article attempts to explain the origins of the doctrine, its current status under the U.S. Supreme Court, its specific impact on copyright law, the susceptibility of public institutions and their administrators to infringement actions despite sovereign immunity, and recommendations for handling copyright ownership disputes between public institutions and their faculty.

II. ONLINE COURSES: WHAT THEY ARE AND WHO ENROLLS

A. The Growth of Online Courses at Public Institutions

The U.S. Copyright Office defines distance education as "a form of education in which students are separated from their instructors by time and/or space."8 The National Center for Education Statistics defines distance education with more detail: "[E]ducation or training courses delivered to remote (off-campus) sites via audio, video (live or prerecorded), or computer technologies, including both synchronous (i.e., simultaneous) and asynchronous (i.e., not simultaneous) instruction."9

There is no typical digital distance-education course. Instructors may develop courses from scratch, or use customized templates from commercial software. They may combine several technologies, including e-mail, threaded discussions, chat rooms, whiteboard programs, shared applications, streaming video or audio, video or audio files, course management infrastructure, links to Web sites, and interactive CD-ROMs and DVD-ROMs.10

For purposes of this article, "distance-education course," "online course," and "Web-based course" will be used interchangeably. The copyrightable portions of these courses on which this article focuses are the materials prepared by the faculty member before the course begins, not the material created during the teaching of the course, such as threaded e-mail dialogues with students, and postings to the course's Web site.

B. More Online Classes for More Off-Campus Students

In the 2000-01 academic year, fifty-six percent of the two and four year degree-granting institutions in the U.S.-2,320 institutions-offered distance-education courses, up from forty-four percent three years earlier." The percentage was highest among public institutions: ninety percent of public two-year and eighty-nine percent of public four year institutions offered distance-education courses, compared with sixteen percent of private two year and forty percent of private four year institutions.12

As the foregoing statistics suggest, public institutions offered the most distance-education courses in 2000-2001. Public two year institutions offered 55,900 (44%) out of 127,400 total distance-education courses, and public four year institutions offered 43,100 courses (34%).13

Public four year institutions offered the most online degree programs as well. According to the National Center for Education Statistics, public four year institutions were more likely to offer degree programs designed to be completed through distance education than private four year institutions, which in turn were more likely than public two year institutions to offer online degree programs (48%, 33%, and 20%, respectively, among institutions that offered distance-education courses).14 Out of the 1,090 distance-education degree programs at public four year institutions, 410 (38%) were undergraduate degree programs, and 680 (62%) were graduate/first professional-degree programs.15