don’t fear the camera

Professors, Before screaming “it is my intellectual property rights” make sure that you have the law right. Students have many colorable arguments that they can record, and even disseminate portions of your lectures. (The extent to which varies by jurisdiction and type of school, and most opinions given by non-lawyers (or even lawyers without an IP background) are unfounded.)

But what is to lose? If you are a professor, you know you will spend a good deal of time speaking in public. In fact, you probably //crave// publicity. Heck, I am teaching a course now, and I am happy to be recorded. I couldn’t convince anyone to put the whole thing on video and put it on Youtube, but I wouldn’t mind.

The camera is a helpful device to keep you focused, and a great way to prove the “he said that” crowd wrong.

Larry, at 8:25 am EDT on September 6, 2006

That’s Hilarious...

Ha! Ha! Ha! I actually watched some of the clips on YouTube, and my God, these students are geniuses!

AC, at 9:10 am EDT on September 6, 2006

YouTube

In this case, “irresponsible journalism” is almost a given. Universities need to move fast to prevent abuses of their personnel. But, my guess is, nothing will be done until some senior university administrator is caught on camera in some kind of, shall we say, “compromise.”

A Husemann, Sci. Dept. Chair, at 9:10 am EDT on September 6, 2006

no harm, no foul

A Husemann, There will *always* be editorial misconduct. In fact, there will always be so much editorial misconduct that I don’t know what proper editorial conduct is. What do you want universities to do, anyway, in the nature of “moving fast.”

The solution, as I see it, is to simply videotape the whole class, with a time stamp, so anyone that posts an out-of-context clip, and be rebutted.

What I don’t get, MDG, is why you are so sensitive about this. Many other professions routinely work in the public eye. For example, most court hearings are public and can be freely redistributed. Lawyers and judges retain no intellectual property rights in the legal arguments they make. Somehow, professors, who similarly perform before an audience are crying foul when someone dares record them and share it. (If you had not said that you were a good instructor, I would have doubted you. But now I know that you are, I trust you.)

Ms. Marty, In theory, even if a lecture eligible for copyright protection, and even if the copyright inures to the professor (which, in many cases is does not), ideas themselves are not copyright able. Only the expressions of such ideas. Whatever the case, if any money was to be made from first publication of such expressions, the professor could sue the student.

Spenser, Unlike videotapes of classes, a videotape of an assault on a teacher (including “pantsing”) is evidence of a crime, and there are criminal penalties for the underlying crime.

Larry, at 10:00 am EDT on September 6, 2006

Max, The act of videotaping someone (as opposed to the intellectual property rights in the tape) is generally a matter of state law.

The last time I looked at this issue, the answer was: yes. In exams, there generally isn’t any eavesdropping going on, and presumably there is no expectation of privacy (if the students are taking the exam in a large room) and no actual communications that might be subject to various states common-law or statutory “privacy” provisions. However, some states take a more aggressive view, and require “consent.” Of course, one could demand that students who wish to cheap on exams, simply state that they do not wish their in-exam conversations to be recorded, because they have some serious cheating to do.

(Unfortunately, the caselaw in this area is very bad, because some, but not all, states have been overly unfriendly to people who secretly recorded police officers in the course of their duties.)

Larry, at 10:35 am EDT on September 6, 2006

Potential Felony

In certain jurisdictions, including my own, secretly taping someone is a felony. This has nothing to do with intellectual property claims: Anyone who is secretly taped has standing to sue. If kids are going to engage in such conduct, they’d better seriously inform themselves about germane law.

JBM, at 11:25 am EDT on September 6, 2006

Humor

I agree with Hoosier Prof. Its humor and its clever.

I’d go a bit further and say lighten up on the “its our intellectual property, blah, blah". If this sort of thing really works you up, there are bigger issues than students having fun, a critical part of why they’re at our institutions.

Seth, administrator at Michigan, at 12:40 pm EDT on September 6, 2006

Effects of Taping

I would only be concerned if the videos led to class disruption or real-life problems, and I am someone who is not comfortable on camera of any kind. Face it—college kids play on the Internet. So do most professors, I might add! : )

kgotthardt, at 1:00 pm EDT on September 6, 2006

I thought a lot about this issue when the UCLA controversy cropped up. I like Larry’s solution: “simply videotape the whole class, with a time stamp, so anyone that posts an out-of-context clip, can be rebutted.” I teach a class of 200+ students and that’s the best insurance that someone with simple audio or video-editing software can’t jumble or distort my words to make me look evil or insane. Well, they still can, but I’ll have a record I can respond with.

In fact, talking to a group of new grad student instructors this fall, I told all of them to just assume they’re being videotaped or voice recorded the entire time they’re in front of a class. That might be a distressing & depressing thought, but we’re living in an age of surveillance anyway, we might as well beat them to the punch and monitor ourselves. [insert pithy Foucault quote here]

Brian, Asst Prof at Large Midwest U, at 1:10 pm EDT on September 6, 2006

Larry

I find it impossible to confuse this informal website with a legal brief, but since there are a lot of schools in Massachusetts, here’s some free advice for any kids thinking about secret taping there:

Read Massachusetts G.L. c. 272, section 99.

I honestly have no idea why you would think I was talking about Alaska.

JBM, at 1:50 pm EDT on September 6, 2006

Lawsuits oh boy!... the problem is poor teaching!

Law being the last refuge of scoundrels, it seems clear to me (and from personal experience) that many of these teachers and professors held up to ridicule are very much out of control: the screaming teachers, those without any control of the classrooms where learning is rarely if ever taking place... What about professional responsibility? What about accountability? The simple fact is that there is almost no oversight over many if not most classrooms. These videos make sense collected together as surreptitiously recorded in-classroom experiences. However there are two distinct categories here: 1) Teachers acting out, and 2) Students acting out.

Seen enough bad teaching..., PhD student (and instructor) at Land grant U, at 3:15 pm EDT on September 6, 2006

kgotthardt, Why is that degrading? In the US we go to school NOT to do certain things. Isn’t it natural to think that your education makes you a better person than others?

Larry, at 5:10 pm EDT on September 6, 2006

Education Doesn’t Equal Being Better

Larry, education doesn’t make you a better person. It gives you more choices in life. It gives you advantages and opportunities, financially and intellectually so hopefully you can make those better choices. In many cases, though, getting a higher education can COST you options and freedom, as in the case of those who must become indentured servants to their student loans.

I would be the first one to endorse education at any level because it generally makes for a better quality of life, for happier individuals and families (because typically, they are not as trapped as those without education), and for the option to fulfill dreams. That’s why I chose to work in education. But does it make you “better” as in “superior"? Hardly. Some of the best people I know have high school educations, if that. And some of the most despicable human beings I have ever met have held advanced degrees. I say this having a Masters degree. To me, “better” means you make the world a more viable place to live in by doing whatever it is you do in life and doing it to the best of your ability. Degrees have little to do with it.

kgotthardt, at 8:40 pm EDT on September 6, 2006

First, while the students are busy taping, what are they learning? Shouldn’t we be concerned that they are clearly not part of the discussion?

Second, it would seem that the law requires any “publication” of images to have the publisher receive a model release form or permission form. Even Ashton Kutcher had to get permission to air “punked” stars on tv, although these stars are obviously in a different category as public figures.

Third, the big deal here that some dismiss is the same deal we see on tv with “reality” shows. Who among us hasn’t lost his/her temper once each day? To record an instance of faltering and post it risks creating the appearance of a consistency. And will this, like ratemyprofessor, turn into an administrative tool? Perhaps. I’d rather not gamble it. Until then, I will be researching the legality, and if someone violates my rights by posting my lecture (reproducing my words beyond legal “fair use” laws) or by using my image without my permission, you bet I’ll be pursuing the web site, and the poster, in court.

Until then, maybe I’ll just adopt the policy I’ve always wanted: any cell phones or electronic devices not germaine to the course will be confiscated and sold on ebay by the professor, with the proceeds going to my favorite charity.

Lighten up? For those who respond thus, please post videos of yourselves at your worst moments in public, and send INSIDE the link; I’d love to see it.

Jeff Grieneisen, Violation?, at 9:55 pm EDT on September 6, 2006

Of cellphone, Hyde, releases and stuff.

JBM, I read Hyde. Quite a few times. Obviously, the footnote doesn’t refer to every jurisdiction, but it provides an overview of the approaches. While Massachusetts has one of the strictest (and perhaps craziest) laws (both Hyde the statute) on the subject in the country, the statute only bans recording in places where people have an expectation of privacy. Two point of clarity are required: 1) the recording was made “secretly”; and 2) the Massachusetts statute doesn’t apply to video; 3) it does not address encounters that appear in the “open.” I don’t quite know where this leaves Mass. students, other than to note that the law is better in other states. Perhaps they should drop out of Harvard and move to somewhere in the flyover.

(Not that I think it is cool to criticize judicial opinions, but I think the last sentence of Hyde is particularly silly, as it states that people with a fear of police violating the law should ask politely to record them. Also, the court has a strange fear of metermaids having their ticket-writing recorded, and thinks that it is somehow bad for people to record the execution of search warrants.)

Erik, These are very important issues, and if you think that there is no caselaw that creates ambiguities on the issue, just cite the relevant caselaw on “undisclosed” recording of statements made in public. I am sure you understand the importance of being precise here.

Also, if you claim my analysis is weak, as an academic, you need to explain why, not just say “IMHO.”

Jeff, Recording something doesn’t take much time or effort. Many people (including tenured professors) brag that they never “learned” in class, anyway. “Release forms” are not necessarily required for all publication. Outside the Massachusetts context, most activities that transpire in public are fair game, if there is even the vaguest public interest in them. That said, the release form takes care of potential IP issues.

Finally, Mr. Grieneisen, I seriously doubt that you are confiscating and selling cellphones on Ebay. I think this is a rhetorical flourish on your part and you never actually took a student’s cellphone and sold it on Ebay.

I generally enjoy your insights and posts and I look forward to more of them.

Larry, at 7:35 am EDT on September 7, 2006

I believe that as of right now, the videotaping of classes is perfectly fine with the consent of the professor. However, I do not think that watching a video of a class should ever be considered the primary source of education. I do not mind the videotapes now, but I’m sure that the next step of this frenzy will lead to the detriment of personal education. According to “Academic Keywords", professors are being cut back and underpaid as the amount of teacher use has decreased due to online courses and videotapes. Education should be free and readily accessible for anyone who wants to learn, yet there is something to be lost in a videotape.

Alex, at 3:05 pm EDT on September 7, 2006

Important Clarifications

“While Massachusetts has one of the strictest (and perhaps craziest) laws (both Hyde the statute) on the subject in the country, the statute only bans recording in places where people have an expectation of privacy. “

This is incorrect. The statute contains no language that makes “reasonable expectations of privacy” relevant. It is quite clear in prohibiting all private individuals from secretly recording others:

“Interception, oral communications prohibited. Except as otherwise specifically provided in this section any person who— willfully commits an interception, attempts to commit an interception, or procures any other person to commit an interception or to attempt to commit an interception of any wire or oral communication shall be fined not more than ten thousand dollars, or imprisoned in the state prison for not more than five years, or imprisoned in a jail or house of correction for not more than two and one half years, or both so fined and given one such imprisonment.” See section C(1).

None of us get past the bar here without knowing this stuff.

“ Massachusetts statute doesn’t apply to video;”

This is incorrect. Secretly videotaping is prohibited under section B (3) and (4):

“3. The term “intercepting device” means any device or apparatus which is capable of transmitting, receiving, amplifying, or recording a wire or oral communication other than a hearing aid or similar device which is being used to correct subnormal hearing to normal and other than any telephone or telegraph instrument, equipment, facility, or a component thereof, (a) furnished to a subscriber or user by a communications common carrier in the ordinary course of its business under its tariff and being used by the subscriber or user in the ordinary course of its business; or (b) being used by a communications common carrier in the ordinary course of its business.

4. The term “interception” means to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication; provided that it shall not constitute an interception for an investigative or law enforcement officer, as defined in this section, to record or transmit a wire or oral communication if the officer is a party to such communication or has been given prior authorization to record or transmit the communication by such a party and if recorded or transmitted in the course of an investigation of a designated offense as defined herein.”

3) it does not address encounters that appear in the “open.”

This is incorrect. The statute clearly includes them in the general prohibition cited above. There is no exemption for “appearing in the open.”

Again, none of us get past the bar here without knowing thus stuff.

I strongly urge anyone who might be affected by Massachusetts law to review it directly. We are talking again about Massachusetts G.L. c. 272, section 99. Since other jurisdictions have laws that resemble that of Massachusetts, people should directly review all relevant law in their jurisdiction to assure that it is clearly understood. Beyond criminal penalties, there are serious civil remedies to be had as well, both here and elsewhere. It’s worth reading the law directly to avoid any confusion about it.

JBM, at 6:35 pm EDT on September 7, 2006

JBM is wrong and here is why

JBM, I read the statute. Video isn’t mentioned. You made that up. It isn’t there. (There is another Massachusetts statute that governs “voyeur-type” videos, but I don’t think that is relevant. Whatever the case, video isn’t in there. If it was in there, you would have quoted the language specifying video recordings. But you did not. You quoted other language. (Now, a video with audio might be a different story. However, the Sec. (B)(2) statute specifically limits oral communications to speech.)

Second, JBM, having taken and passed the bar in Massachusetts (and having practiced there), I assure you that this statute is simply not tested. If you don’t believe me, you can read previous MA essay exams here: http://www.mass.gov/bbe/essayquestions.htm. So, to say that people in Massachusetts don’t pass the bar without knowing this stuff is incorrect. I will assume that you are not just throwing out insults for fun.

On to your more substantive concerns. It is true, that the statute itself doesn’t provide exemptions for conversations where people have an “expectation of privacy.” The Hyde case leaves open the possibility that a record made of an entirely public event where there is little or no control over who can witness it is not covered by the statute. There are almost no Hyde-like prosecutions in Massachusetts anyway. While, of course, it is up to the courts to interpret the statute (in light of the constitution), the preamble to Section 99 speaks of preventing warrantees audio surveillance of activities that might otherwise require a warrant.

The legislature writes, “The general court further finds that the uncontrolled development and unrestricted use of modern electronic surveillance devices pose grave dangers to the privacy of all citizens of the commonwealth. Therefore, the secret use of such devices by private individuals must be prohibited. The use of such devices by law enforcement officials must be conducted under strict judicial supervision and should be limited to the investigation of organized crime.” The Hyde decision interprets that language and holds that the police officers had some privacy interest in their (somewhat abusive) stops of motorists, as it says “While we recognize that G. L. c. 272, � 99, was designed to prohibit the use of electronic surveillance devices by private individuals because of the serious threat they pose to the ‘privacy of all citizens,’ the plain language of the statute, which is the best indication of the Legislature’s ultimate intent, contains nothing that would protect, on the basis of privacy rights, the recording [of the [police] that occurred here.” (This is a fairly tortured reading of the statute, but as applied to at least one hippie, it is the law.) The majority does not reach the issue of what happens when there is a “legitimate” news-gathering function (of which youtubers might be considered) that is protected by the First amendment, nor does the majority reach the issue of at what point someone’s “privacy” interests cease. The opinion assumes that because there were just the two officers and the arrestee, then the conversation was private.

Under your view of the law, anyone who uses a video camera anywhere in Massachusetts without getting approval from people is committing a crime.

Finally, to everyone else reading, it is worth noting that the Massachusetts SJC acknowledges that its legislature is an outlier. But, as JBM points out, people in Mass should be aware of this decision, and they should take appropriate action. People in California have nothing to fear.

Oh, Calirodan, so let me get this straight, lawyers and (some) doctors that are used to working under video scrutiny are professionals, but teachers need to be able to work without such scrutiny.

Larry, at 10:25 am EDT on September 8, 2006

statutory construction and new media

As a general matter of statutory construction, when there is a long list of enumerated prohibitions, and something is left out, then whatever is left out is assumed not to be prohibited. This one is called, “Expressio unius est exclusio alterius.” In more common terms, this is the “negative implication rule.” Of course, “canons of statutory construction” are often accused of being just political rhetoric, but if you want to raise the issue, there is one for you.

Secondly, on a more constitutional level, the “rule of lenity” (which some say is incorporated into the 5th and 14th amendments) requires that ambiguous criminal prohibitions be construed against the state.

Yes, all readers should read the law. I will join with JBM in urging readers to 1) read the statute; 2) consult their lawyers; and 3) mount a facial challenge to the statue, which is probably vulnerable to attack on 1st amendment grounds now that in the age of “new media” everyone can be a journalist.

Larry, at 12:45 pm EDT on September 8, 2006

First of all, in many instances there is a constitutional right for outsiders to be present at a trial. Indeed, in the case of criminal trials, the constitution guarantees it. Of course judges might make mistakes, but so might a security guard that someone you think is your student off campus.

Second of all, nobody here quickly dismissed your arguments. People searched for the best analogies. Lawyers and doctors came to mind.

Whether what lawyers do is more or less scripted than what professor do, is anyone’s guess.

Whether or not what you do is your intellectual property, in a legal sense is a difficult question, since it depends on the relationship between the professor and the institution, and the given institution. Whatever the case (which varies by institution), the professor has no interest in any ideas he has — only the expressions of such ideas.

Likewise, depending on the nature of the student “retransmission” the student may have a 1st amendment right to show the world how much of a hack you are. (The First Amendment is a beautiful thing this way.) Even in a very restrictive state like Massachusetts, the First amendment would trump the state’s interest in allowing police to beat people up without being recorded.

Just because you have tailored your presentation to one group of students does not mean that others can’t get in the room. The doors are not locked. No sign says “go away.”

I am curious, Daniel, as to why you think that you need privacy in your classroom and you are so hostile to the outside world seeing what you do ?

Nobody has claimed that the classroom is a “public forum” within the context of the first amendment. This term has little to do with recording what is said in the classroom but relates to the ability of others to express certain things in some areas.

Larry, at 10:00 pm EDT on September 9, 2006

Teacher videos

I think the thing that concerns me the most is that these videos might be edited so that they would misrepresent what the teacher actually said. This can carry serious implications for the educator in question, especially if the subject is a controversial or sensitive one.

thebizofknowledge, M.F.A., Ph.D., at 12:05 pm EDT on September 28, 2006

I just want to reiterate through my blog what I have been saying and which could revolutionized the academic standard through out the world if there is some concentrated effort to bring the video lectures of all classes online. It used to be difficult for MIT and Berkeley to provide a dedicated server for having their lectures in the public domain but You Tube, Live Digital and other video blog sharing sites have shown that hurdle is now gone and so its time people start posting the lectures of their classes for everyone to benefit and thereby raising the standard of education world wide ! I wonder should I start an online petition for this. If you have an idea which can prod these institutions to make available thier video lecture let’s discuss.

Sumant Sumant, at 3:10 pm EST on November 17, 2006