So in the summer of 2011, MacSwan registered as a student in an English as a Second Language program for which the couple, both tenured professors, had developed courses. In his telling, he logged on to discover that the courses he and his wife, an associate professor of linguistics, had created were being used without attribution or authorization.
A lawsuit is now likely as MacSwan and Rolstad claim damages for alleged violation of copyright laws and university rules.
The couple left Arizona State and are now employed as tenured professors in the College of Education at the University of Maryland at College Park. Their lawyer sent a notice of claim, a legal notice that precedes a lawsuit, to the Arizona Board of Regents and the state’s attorney general in December, calling for $3 million in damages. "That was a figure our attorney suggested as a reasonable proposal for settlement. The notice of claim guidelines require that one specifies a sum of money that could be used to settle the claim," MacSwan said.
MacSwan and Rolstad also filed a complaint with the university and, last week, they received word that their case will be heard by the university's Governance Grievance Committee.
Arizona State officials and the state’s Board of Regents refused comment on the issue, saying that they do not comment on pending litigation.
Sparring over ownership of course materials might grow, as more institutions offer online courses and look at them as a potential source of revenue. Experts feel that the law is uncertain when it comes to statutes and case law, and an argument could be made for either side.
“…As a practical matter, it is best for a university to have a policy about the ownership of course materials or an actual agreement with faculty members,” said Georgia K. Harper, scholarly communications adviser for the University Libraries at the University of Texas at Austin. Harper, an attorney who also represents the UT system's office of general counsel on copyright issues, said universities may have different traditions: there might be a strong tradition of faculty ownership at one, while other institutions might claim ownership of such materials, stating that they were created within the scope of employment.
MacSwan said the university violated the Arizona Board of Regents Intellectual Property Policy.  The policy defines scholarly works as “works of authorship and creative works regardless of their form that are created by employees or students. Except as set forth below, scholarly works include on-line instructional materials, scholarly publications, textbooks, journal articles, course notes, research bulletins, monographs, books, play scripts, theatrical productions, poems, works of music and art, instructional materials, and non-patentable software.” Although the board's policy does not claim copyright of scholarly works, it makes an exception for works that were created with significant resources from the board or university, or works created in the scope of employment.
MacSwan also pointed out that the American Association of University Professors has said that professors own the right to their scholarly work.
The couple said they developed online courses for an ESL master's program for the university’s graduate school of education in 2009. The next year, MacSwan and Rolstad moved to the English department as the online ESL program became part of the Mary Lou Fulton Teachers College at the university.
But they continued as co-directors of the program, and copyrighted their course materials, including handouts, texts and streaming video. Their dispute with the university began in late 2010, when MacSwan refused to teach a winter course for reduced pay, at a rate usually offered to adjuncts. This, MacSwan said, led to escalating tensions with Mari Koerner, the dean of the Teachers College, and he and his wife did not teach their courses in the summer of 2011.
That summer, MacSwan said, his colleagues told him that the courses that he and his wife developed were still being used in the ESL program. That's when he enrolled as a student to find out for himself.
“MacSwan witnessed that the contents were used in total replication, including the video recorded lectures and PowerPoint presentations of MacSwan and Rolstad. In addition, some of the material was used without attribution, not only without authorization, constituting plagiarism,” according to the filing by the couple’s attorney.
Koerner, the dean at the teachers college, declined requests for an interview.
Robert A. Gorman, emeritus professor of law at the University of Pennsylvania and a former president of the AAUP, said that he largely supported the AAUP view that course materials developed by a university professor belong to that professor. "Academic freedom traditions also point in that direction,” said Gorman, an expert on copyright law. An exception could be when a university participates extensively with a faculty member in generating a course or developing teaching material, but even then, there would have to be a contractual agreement specifying copyright ownership, Gorman said.
The complication can be the definition of what is within the scope of employment.
The advent of the Internet and the growth of digital material have served as an impetus for refining university rules, said Rodney Petersen, managing director of the Washington office of EDUCAUSE. “There is definitely more awareness of intellectual property interests,” Petersen said. “There are nuances built around what is termed as the scope of employment.” A faculty member might have rights to a specialized graduate school course, but in a case where every incoming faculty member teaches the same basic course, the university might be more interested in owning it, Petersen said.
A 2005 paper  on intellectual property and online courses by Jeffrey Kromrey, a professor of education at the University of South Florida, that looked at 42 public and private research universities, found that 93 percent of universities allowed professors control over traditional scholarly works, but 71 percent of them allowed for exceptions. “Most universities (95 percent) claimed some faculty works, especially if the work required substantial use of university resources (83 percent),” the paper said.