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
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. …