Former ASU Professors Threaten Legal Action Against University for Violation of Intellectual Property

Last week, Arizona State University's Governance Grievance Committee agreed to hear a case filed by two professors against the university for violation of intellectual property and copyright infringement.

Jeff MacSwan and his wife Kellie Rolstad were both tenured professors as ASU and taught courses at the Teachers College (formerly the College of Education). They were the founders of ASU's Applied Linguistics PhD Program, where they created the syllabi and related course materials, including videos, activities, and applied-learning exercises.

Last year, the two caught wind that the courses they designed were being used without their permission. MacSwan says he enrolled in one of the online courses and, sure enough, there were his videos and materials being used by a professor he'd never met -- largely without attribution.

MacSwan says he and Rolstad decided to leave the College of Education when it was reorganized, refocused, and renamed. He agreed to work for the College of Liberal Arts and still teach a few courses at the Teachers College through contract and under the guidelines of the Board of Regents.

There was a large demand for his online masters courses over the spring and summer of 2011. MacSwan says he was offered a part-time position to teach them and that he declined for monetary and tenure status reasons.

That's when MacSwan says the university decided to give his course material to another professor.

MacSwan and Rolstad sought independent legal counsel and copyrighted their teaching materials, but MacSwan says they continued to be used by the university.

In December, their lawyer sent a notice of claim (required legal notice that comes before a lawsuit) to the state's attorney general and Board of Regents that called for $3 million in damages for copyright infringement.

"We were betrayed by the university for which we taught for over a decade," says MacSwan. "We were good citizens, and we agreed to take a leadership role in this program. But the university turns around and says, 'hey, we can save a few thousands dollars (by not having to pay our salaries) and having someone else teach it."

The war of intellectual property rights, especially regarding online materials, is a long one with deep roots and heated arguments. In academia, many universities have their own policies, determined by their boards of regents and signed by employees of the university. These agreements determine who owns the rights to educational materials and how they can be used (and reused) by university employees.

MacSwan cites the Arizona Board of Regents Intellectual Property Policy (ABOR 6-908 ), which states that the Board "does not make any claim of copyright ownership of the following works of authorship: a. scholarly works; b. works of fine art (e.g., music, art, dance, film), unless specifically commissioned by the Board or university; and c. student-created works."

The policy further defines Intellectual Property as "all forms of legally recognized intellectual property, including copyrights, patents, trade secrets, trademarks, and plant variety protection together with any associated or supporting technology or know-how."

Mari Koerner, Dean of The Teachers College at ASU has two weeks to officially respond to the complaint in writing as of the Grievance Committee's decision to hear the case.

"You must know that I'm getting a letter together with my lawyer," Koerner said over the phone. "I can't be silent ... These claims are inaccurate, potentially libelous, malicious, and I'm considering action against [MacSwan and Rolstad] for making such accusations."

Koerner notes that the university followed ABOR 6-908 policy with Rolstad and MacSwan, which is in the university's faculty handbook. "ASU has paid both of them as faculty to share expertise through syllabi which are used to teach students," she wrote in a follow-up email. "They can use these syllabi in their new jobs as well."

MacSwan and Rolstad have since left ASU and are currently tenured professors in the College of Education at the University of Maryland at College Park.

The hearing will be scheduled within the next 60 days.

Note: This article has been updated since its publication.

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