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Wednesday
Jul232014

Higher Education's Expanding Domains

Over the summer I have been working on a law review article concerning the history of the .EDU extension.  The project also involved collecting and analyzing data concerning college and university use of two specialized regulations – the Uniform Domain-Name Dispute-Resolution Policy (UDRP) and the Anticybersquatting Consumer Protection Act (ACPA) – to seek ownership and control of domain names that they believe infringe their trademark rights.

Some of the findings raise questions about institutions’ orientations toward brand protection and expansion, free speech and institutional reputation, and commercial involvement.  Data show that colleges and universities use the UDRP (which, as a form of arbitration, typically costs anywhere between $3,000 and $5,000 to pursue to completion) much more frequently than they do ACPA litigation (which, as a form of federal court litigation, is much costlier to pursue). 

One-hundred different institutions have brought at least one UDRP action, with Baylor University filing the most actions (62 of them) since the year 2000.  The graph displayed below shows the number of UDRP filings by colleges and universities by year.  Colleges and universities filed 233 UDRP actions, involving 373 different domain names, through the year 2013.  Most of these involved disputes over .COM domain names (75.9%), although disputes involving more exotic extensions – such as .INFO, .ME, .BIZ, .XXX, and .TV – also occurred.

Data reveal Baylor University to be an outlier in many respects.  Its 62 UDRP actions concerned 130 domain names – many, in my opinion, of questionable importance to the institution.  For example, Baylor filed UDRP actions to obtain transfer of the following: <baylorsucks.com>; <ihatebaylor.com>; <baylorbkstr.com>; and <justbuit.com>.

By far my favorite Baylor domain name dispute, though, occurred in November 2013 and involved the domain names <rg3baylor.com> and <rg3bu.com>, which a third-party had registered and begun using for his fantasy football league.  For those unfamiliar with the moniker, ‘RG3’ is the nickname of Washington Redskins quarterback Robert Griffin, III, who won the Heisman Trophy while playing for Baylor, from which he obtained his undergraduate degree in 2010.  The university owns no trademark in RG3’s legal name or nickname, yet felt aggrieved by the two domain name registrations.  Owning federal registrations for both the words BAYLOR and BU, the university asserted that the disputed domain names were confusingly similar to its trademarks; the arbitration panelist agreed, finding that the addition of the descriptive term ‘rg3’ – “likely meant as an allusion to Robert Griffin III, who achieved fame while playing for Complainant’s football team” – did not vitiate Baylor’s rights in the domains (p. 5).  The full text of the decision can be found here

One wonders whether RG3 – whose nickname as a professional athlete clearly has commercial value to him – prompted this enforcement activity, or even is aware of it.  Recent visits to the two domain names, whose transfer Baylor successfully achieved in December 2013, show that neither resolves to a Web page.  To what use these domain names will be put in the future, if any, will be interesting to watch.

The question of what institutions that win transfer of disputed domain names under the UDRP choose to do with those domains is one that interested me.  Surprisingly, my research revealed that nearly one-third (31.8%) of the domain names transferred to a college or university because of a UDRP decision were (a) available to register, or (b) no longer registered to the institution that had won transfer of the domain.  This finding challenges the natural assumption that higher education’s battles for cyberspace tend to concern “important” domain names that have some lasting value to the institution.  In many cases the data show that an institution no longer owns a domain name that it once deemed important enough to spend thousands of dollars to fight over, not even five years after receiving it.

To what uses do institutions put the domain names that they have won and still own?  I visited each of these 227 domain names to find out.  I was surprised to find that over half of them (56.8%) were not being used in any effective way.  That is to say, instead of displaying content, or redirecting visitors to another Web site affiliated with the institution, the majority of domain names that colleges and universities have fought to win display no meaningful information at all – either they do not resolve to a Web page (e.g., try visiting <tufts.mobi>), or they display a parked page upon visit (e.g., visit <universityofidaho.com>).  This finding further challenges any assumption that institutions only pursue transfer of domain names that they intend to use.  Admittedly, good reason exists why some of the domains are not used (e.g., Baylor understandably does not use <baylorgirls.xxx>), but why doesn’t Drexel use <drexel.org.>, if for no other purpose than to redirect visitors to <drexel.edu>?

The .EDU extension sets higher education apart from other industries, which never enjoyed their own unique domain name space until the recent expansion of top-level extensions by ICANN.  Yet as my research shows, owning space in the .EDU domain name is not enough for many institutions, for a variety of reasons.  In expanding their online domain beyond the .EDU, colleges and universities in a real sense are defining what they value as institutions, and the extent to which intellectual property protection figures into institutional mission.

Inescapable for higher education seems the fact that online space is important space, increasingly so as entire degree programs move to, or even are born as, “online only.”  These spaces go to the heart of how we conceptualize higher education in the public sphere, as some combination of a public-facing but privately-oriented entity, simultaneously influenced by concerns for commerce, brand, and academic missions.  At this intersection of priorities and values, made all the more pronounced and visibly contested in cyberspace, we find an industry pulled in different directions, whose behaviors occasionally seem schizophrenic, as the dual motives of self-preservation and self-aggrandizement intermix.

Interested readers can expect the full draft of my article, entitled “Defining Domain: Higher Education’s Battles for Cyberspace,” to be posted to my SSRN page by early fall.

Friday
Jul182014

Freedom of religion or guise for discrimination?

The June 30 Supreme Court decision in Burwell v. Hobby Lobby Stores, Inc. sparked passionate debate between those who fervently uphold a person's right (well, in this case, a corporation) to freely exercise religious beliefs and those who worry that such interpretations of the First Amendment might be used as a shield to discriminate. Since that decision, a few interesting developments in higher education have occurred that further pit religious freedom against civil rights.

Just days after the Hobby Lobby decision, the Supreme Court made it easier for religious institutions to refuse to provide coverage for contraception. (Wheaton College, a Christian college in Illinois, had objected to such provisions in the Patient Protection and Affordable Care Act.) The Act requires employers fill out forms requesting such an exemption; pending further review religious institutions need only inform the federal government of its objections.

This week Inside Higher Ed reported that the Department of Education rejected a complaint from a transgender student who was denied housing at George Fox University, a Quaker institution. (The university had previously been granted a religious exemption in the 1980s for declining "to enroll or hire divorced individuals or the parents of out-of-wedlock children"--claiming that Scripture prohibited it.) Just yesterday the university announced that it had modified its policy and would provide regular student housing for those transgendered students who had undergone gender reassignment surgery. And in yet another case, last week a judge ruled in favor of California Baptist University after a transgender female student who applied for admission as a woman was expelled for "fraud."

(After reading these headlines and in researching for this post, I was surprised to discover a 2005 article discussing state religious exemptions to accreditation standards.)

When thinking about the Hobby Lobby decision--and the recent developments in higher education--I often reference Justice Ginsburg's dissent: Would the exemption. . . extend to employers with religiously grounded objections to blood transfusions (Jehovah's Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations.

It is undeniable that in our society certain religions are privileged more than others. Even in our court system, some religions (e.g., Jehovah's Witnesses in Minersville School District v. Gobitis) have historically received short shrift. I can't help but think that to some people this case is more about pro choice v pro life than true religious freedom. How many people who applauded the Hobby Lobby decision would be comfortable if the scenario Ginsburg painted would come to fruition? In the higher education cases, has "Christian privilege" pervaded the court system and allowed discrimination to be whitewashed by the First Amendment?

I, for one, look forward to learning more about this issue and engaging further in the debate.

 

Tuesday
Jun242014

Education Law Association awards deadline approaching!

Just a friendly reminder to submit nominations for the following awards to be announced at the annual meeting of the Education Law Association, November 12-15, 2014 in SUNNY San Diego!

*George Jay Joseph Award: outstanding scholarly piece written by a student (graduate student or law student). Winner will be published in Journal of Law and Education, invited to present at conference,  and fee waived to attend conference. DEADLINE: July 1, 2014

*Joseph C. Beckham Dissertation of the Year: presented to an outstanding legal or policy-based dissertation, defended between July 2, 2013 and July 1, 2014. Winner will be invited to present at the conference. EXTENDED DEADLINE: July 15

*Steven S. Goldberg Award: recognizing an outstanding scholarly piece (article, book, or book chapter) in the field of education law. DEADLINE: August 1, 2014

*August Steinhilber Award: recognizing outstanding appellate court brief pertaining to education law. Winner will receive one-year membership to ELA and free conference registration. DEADLINE: August 1, 2014

*ELA Board of Directors: those interested or know of someone interested in serving on the Board of ELA. Three-year commitment. DEADLINE: September 2, 2014

*M.A. McGhehey Award: recognizing outstanding service to ELA. DEADLINE: September 2, 2014

More information about each award, as well as the online nomination forms, are available at www.educationlaw.org under "Events"/"ELA Award Nominations"

 

Monday
Jun232014

Supreme Court Holds Community College Administrator's Testimony Protected Speech

In previous posts (e.g., see here) and in my scholarship, I've criticized the U.S. Supreme Court's decision in Garcetti v. Ceballos (2006) (copy of decision available here). Offering a small legal course correct, the Supreme Court recently held in Lane v. Franks (opinion available here via NACUA) that a college administrator's testimony in a criminal court case was protected speech.

Garcetti involved a deputy district attorney who argued that communications made by him to superiors concerning a pending case were protected under the First Amendment. The attorney alleged that he had been retaliated against for offering the view that a pending criminal case should dismissed based on seeming misrepresentations made by police officers. Reversing a Ninth Circuit decision in favor of the attorney, the Supreme Court in Garcetti created a bright line test for when public employee speech is eligible for First Amendment protection. The Court held that when a public employee communicates as part of carrying out his or her official employment duties, then such speech or communication is not covered by the First Amendment. Before Garcetti, the legal inquiry focused on whether the public employee's speech dealt with a matter of public or private concern. If the speech dealt with a matter of public concern, then the public employer was required to offer a sufficient justification to restrict the speech. Matters dealing with private concerns were not subject to First Amendment protection (see Connick v. Myers—available here—for a case involving speech determined to deal with a private concern). After Garcetti, the initial inquiry for courts became whether the speech at issue took place as part of the individual carrying out official employment duties.

One issue raised in Garcetti by now retired Justice Souter in dissent dealt with whether the decision applied to faculty speech. The majority in Garcetti noted that Justice Souter raised an interesting issue but not one before the Court in the case. Since then, federal courts have reached conflicting decisions regarding the extent to which Garcetti applies to faculty speech. But, the decision's standards have been relied on in multiple cases to reject claims by administrators in elementary and secondary education and in higher education. These cases have highlighted a key criticism of Garcetti, namely leaving public employees open to retaliation for their professional speech, including instances involving speech that employees were legally or ethically bound to make.

Lane v. Franks centered on Edward Lane, a community college employee, who testified against an Alabama legislator in a trial in which she was being prosecuted for fraud and theft related to the inappropriate use of federal funds. As part of an audit, Lane had discovered that the legislator had been failing to report to work for her position with a program under Lane's supervision that was administered by a community college. Lane had fired the legislator after she continued not to show up for work after warnings from him. Lane's superiors had not supported his efforts to make the legislator start reporting to work or his firing of her (with the actions of Lane's superiors indicative of some of the problems that have faced Alabama's troubled community college system). Lane claimed that he was fired from his position in retaliation for his testimony at the legislator's trial. 

The U.S. Court of Appeals for the Eleventh Circuit held that Lane's speech (in the form of his testimony) was not protected under the First Amendment based on the Garcetti standards. That is, the court held that Lane offered the testimony based on information he learned as part of carrying out his job duties. A unanimous Supreme Court, reversing, held that Lane's testimony was protected speech.

The Supreme Court held in Lane that public employees who provide testimony "outside the course of their ordinary job responsibilities" that is compelled by a subpoena are protected by the First Amendment, even if they are testifying about matters learned in the course of carrying out their employment duties. The reason that I describe the case as a small course correct is because the Court focused on the fact that Lane's testimony was not part of his normal job duties and that the testimony was the result of subpoena. But, it was nice to see the Court curtail what kinds of activities can be deemed to have taken place in the course of carrying out official job duties, at least in relation to testifying in a criminal case.

At the same time, the decision does not diminish many of the problematic aspects of Garcetti. It means that public employees, including those working in higher education, continue to face retaliation for their professional speech made in carrying out official employment duties without any possibility of First Amendment protection.

Thursday
Jun052014

Frozen: Free Speech at Evergreen State College

The “lawyers for the arts” group in Washington state recently reported about a brewing controversy at Evergreen State College (a public liberal arts college in Olympia) involving a student group and the institution’s administration.  Eight students there spent the spring quarter writing, rehearsing, and preparing to perform publicly an original musical theater production entitled “The Quisney Project presents: O.U.T.: Once Upon a Time.”  Informed by queer theory, the work is a critical and political commentary on heterosexuality norms in American society.  Professors were involved in supervising and approving the project, which was scheduled to be performed this weekend in campus facilities.

Evergreen State College’s administration was supportive of the project initially.  However, after consulting with a state attorney, the administration apparently changed its tune, writing the students in late May to advise them that the musical could not be performed on college property in its present form.  Their concern?  Potential secondary liability for copyright infringement.

The students’ musical production apparently incorporates several Disney songs, which the students use to criticize and parody Disney as – in their view – a company that perpetuates gender norms through its songs and movies.  Faculty familiar with the project, and supportive of it, believe that the students’ use of Disney songs in the musical constitutes “fair use” under copyright law, as the musical “significantly alters the meaning of original melodies and lyrics, and offers critical commentary upon the original.”  They also characterize the administration’s efforts to move the musical off campus as “overzealous,” motivated by a narrow view of copyright law’s fair use provision, and likely to produce “far-reaching and dangerous consequences for the intellectual life of The Evergreen State College.”

The institution’s academic deans disagree, stating in a letter to the students that “our decision is determined solely by copyright concerns and should in no way be taken as a negative judgment on the artistic and academic merit of the play or on the work of the Quisney Project,” whose goals the deans otherwise call “ambitious, sophisticated, and important.”

The Facebook page for the Quisney Project makes no reference to the apparent dispute, and the college’s upcoming events page lists the musical as scheduled for June 6, 7, and 8; however, no location for the performance is provided, and visitors are asked to “Contact for location” an email address: TheQuisneyProject@gmail.com.

This unfortunate situation presents a conflict between students’ interest in academic freedom and an institution’s fears of being held secondarily liable for copyright infringement.  Having not viewed the musical’s script, I cannot analyze to what extent the fair use claim is on sure footing, although the musical’s educational value – not only to the students who created it, but also to those in the campus community who would view it – seems beyond question.  All the more reason one would expect that the institution would not act to stop the performance, or request substantial revisions to it, absent a substantial, articulable fear of copyright infringement liability.  Even then, private parties suing public institutions like Evergreen State College for copyright infringement only can obtain injunctive relief, not money damages, if they prevail on their infringement claim, so any fear that Disney could obtain a court order forcing the college to pay thousands of dollars in damages because of the students’ unlicensed use of Disney songs in the musical is unfounded. 

The administration’s apparent fears seem particularly dubious given the involvement in the Quisney Project of Washington Lawyers for the Arts, whose attorneys advised the students from the beginning on the fair use question.  But, for better or for worse, fair use analysis is famously fact sensitive, which in marginal cases (which this likely isn’t) has the tendency to chill expression, as a determination of fair use may not be made with certainty.  This fact, combined with the zeal with which Disney has pursued copyright claims in the past, may have informed the administration’s decision to take action here.  However, it is worth noting that some have suggested that Disney’s stance on unlicensed uses of its copyrighted material has softened since the blockbuster success of the 2013 movie Frozen, which inspired legions of fans to create their own authorized covers and derivations of songs from the movie (in particular, “Let It Go,” which won the 2014 Oscar® for best original song).

For now, questionable concerns for copyright infringement seem to have frozen, or at least chilled, at Evergreen College that which should be presumptively permitted on college campuses everywhere: probing, student-driven, thought-provoking speech, unfettered by content restrictions that do not advance compelling institutional interests.  Absent unassailable evidence that the musical’s inclusion of Disney songs is not permitted by fair use, my hope would be that Evergreen College administrators would take their cue from Disney and let this one go.