In the context of the case study on dissertations, theses, and student papers in Copyright & Cultural Institutions, I discussed (on p. 236) the controversy surrounding the release of Hillary Clinton's and Michelle Obama's undergraduate theses during the last campaign. The issue has come up again, this time with Elena Kagan's senior thesis written while she was at Princeton. According to Techdirt, a conservative web site, RedState.com, secured a copy and posted it. The Princeton University Archives then wrote to them requesting that it be taken down. Politico now reports that the White House is going to release both Kagan’s Princeton paper and Oxford thesis.
The case is interesting because it illustrates many of the complexities associated with reproducing student papers. And it is a good example of the confusion that can result when libraries and archives co-mingle copyright and ownership issues. So let's ask a series of questions about the incident.
Who owns the copyright?
RedState reports that it pulled the thesis “at the request of Princeton University exercising its copyright rights.” Clearly they think that Princeton owns the copyright in the thesis. The letter from Daniel Linke, University Archivist and Curator of Public Policy Papers at Princeton, actually only states that the paper is protected by copyright. It doesn’t state who owns that copyright. While a few schools (most notably MIT) claim copyright ownership of graduate dissertations, copyright in an undergraduate paper will almost certainly belong to Kagan, not Princeton.
Is the work in the public domain?
The paper lacks a copyright notice. If the paper is unpublished, then it is protected by copyright. There is no need to include a copyright notice on an unpublished work; fixation is enough to secure copyright. If the paper was published, however, then it would be in the public domain. Until March, 1989, it was mandatory to include a copyright notice on a published work in order to secure copyright protection.
What constitutes publication? The definition in the Copyright Act is “the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication.” Princeton does not generally distribute the paper, but rather fulfills specific requests for single copies. My guess would be that this does not constitute general publication – though there is at least one court case that could be read to suggest otherwise. I would therefore conclude that it is not in the public domain.
On what basis does Princeton make copies?
This is unclear. It very well could be that as a condition of submitting a senior thesis, a student must agree to its deposit in the Princeton Library and also authorizes the Library to make copies for users.
If permission is not given in advance, then Princeton could make copies for users using Section 108(e) of the Copyright Act, which allows a library or archives to make a copy of an entire copyrighted work when “the library or archives has first determined, on the basis of a reasonable investigation, that a copy or phonorecord of the copyrighted work cannot be obtained at a fair price.”
There are some indications that Princeton may be using 108. For example, the order form to request a copy of a senior thesis, available from the senior theses page, includes the copyright warning notice required by Section 108. On the other hand, the reasonable investigation required by Section 108(e) normally requires that one check with the copyright owner to see if she can provide a copy. It is also possible that they consider making the copies to be a fair use.
On what grounds did Princeton ask that it be taken down?
In theory, anyone could write to a web site and tell them to take down copyrighted work. Only the copyright owner, however, can implement a DMCA takedown notice or bring legal action against copyright infringement. Princeton’s letter requested that RedState take down the paper immediately “before further action is taken.”
Who could take further action? Elena Kagan could, as the copyright owner. And Princeton could, if it had a contractual arrangement with the RedState site – if,in other words, Princeton had provided the RedState site with a copy of the thesis in response to a request from RedState.
What is copyright and what is contract?
Linke’s letter says “Copies provided by the Princeton University Archives are governed by U.S. Copyright Law…” Unless the work is in the public domain, this is certainly true. It then adds, “…and are for private individual use only.” Section 108 says that Princeton can make a copy of the thesis using Section 108 so long as it has no notice that the copy will be used for anything other than “private study, scholarship, or research.” Once the copy is made, however, the obligation to respect copyright shifts to the person who requested the copy, as per Section 108(f)(2). They are allowed to make a fair use of the copy – which may be for a purpose other than “private individual use.” The limitation to “private individual use,” therefore, is not a copyright restriction but one Princeton imposes.
The Linke letter adds “Any electronic distribution is prohibited, as noted on the first page of the copy that is on your website.” The first page of the PDF attempts to create a “browse-wrap” agreement with the reader. It states:
By accessing this file, I agree that my use falls within “fair use” as defined by the copyright law. I further agree to request permission of the Princeton University Library (and pay any fees, if applicable) if I plan to publish, broadcast, or otherwise disseminate any material held by the Library. This includes all forms of electronic distribution.
The inclusion of “fair use” language and references to copyright might lead someone to think that Princeton is exercising its copyright rights. But the limitations here are in fact based on its rights as the physical owner of the original thesis. If you want to be able to consult a copy of the thesis, you have to accept and abide by these terms.
Is this legal? Since at least Bobbs-Merrill v. Strauss in 1908, the courts have said merely including a notice in a printed volume does not necessarily make for a binding contract. Similar wording on Princeton’s order form may create a binding contract with people who place an order, but I am not so sure that Princeton would have a case against third parties who may have acquired copies of the thesis from others. The question would really depend on whether the statement quoted above on the first page of the document establishes an enforceable contract with the recipient.
The senior paper would, I suspect, be an “educational record” according to FERPA. It could only be disclosed to the public, therefore, with the permission of the student. We can assume that Princeton secures a FERPA release as part of the senior thesis process.
Princeton’s letters and forms reflect a common mistake in libraries and archives. Often they will talk about “copyright,” when in reality they are trying to exert contractual rights that arise from being the copyright owner. If you ask someone to take something down, it is probably a good idea to make it crystal clear whether you are doing this as the copyright owner or as the owner of a physical object that has licensed its use to you.