Nettleman v. Florida Atlantic Univ., 16-cv-81339 (S.D. Fla.)
Dr. Nettleman is a land surveying engineer and professor of geomatics. Over the course of a decade of teaching, Dr. Nettleman developed a variety of teaching materials (“Materials”). In 2008, Dr. Nettleman registered the Materials with the US Copyright Office, and used the Materials to teach a variety of courses, and licensed the Materials to various universities.
Dr. Nettleman was hired as an adjunct professor at Florida Atlantic University (“FAU”) and began teaching in the Fall 2014 semester. Dr. Nettleman used his Materials while teaching at FAU, and uploaded the Materials to Blackboard, the university’s online learning-management system. In December 2014, Dr. Yan Yong, the Chair and a professor in FAU’s engineering department, asked Dr. Nettleman if FAU could use his Materials for the Spring 2015 semester. Dr. Nettleman advised Dr. Yong that he typically licensed his Materials to universities, and since he would not be teaching at FAU in the Spring 2015 semester,he would not be able to allow FAU to use the Materials without paying a licensing fee. Dr. Yong did not respond to Dr. Nettleman’s insistence on a licensing fee, so Dr. Nettleman assumed FAU was not interested in using his Materials.
Mid-way through the Fall 2015 semester, FAU contacted Dr. Nettleman to see if he would be willing to fill-in for the remainder of the semester, as the professor had been deported. Dr. Nettleman agreed to return to FAU to finish the Fall 2015 semester, and was again given access to FAU’s Blackboard. To Dr. Nettleman’s surprise, when he logged into Blackboard he realized that the former professor had been using Dr. Nettleman’s Materials during the Fall 2015 semester. Upon discovering this, Dr. Nettleman requested access to the Spring and Summer 2015 course materials, and realized that his Materials had been used during those semesters as well. On November 5, 2015, Dr. Nettleman, through is counsel, sent FAU a Cease and Desist letter. However, the parties were unable to reach a settlement.
Dr. Nettleman filed a lawsuit on July 27, 2016, claiming that FAU infringed his copyrights in the Materials. As part of his complaint, Dr. Nettleman quoted the FAU intellectual property policy which established that faculty members are “the copyright owner of works that are created independently and at the faculty member’s own initiative . . . .” By FAU’s own standard, the Materials that Dr. Nettleman created and registered prior to his employment at FAU, are the intellectual property of Dr. Nettleman. In addition, Dr. Nettleman alleged that upon his departure from FAU, he removed his Materials from Blackboard, but then FAU altered the copyright information on the Materials and uploaded them to Blackboard for continued use.
On September 22, 2016, FAU responded to Dr. Nettleman’s complaint by filing a motion to dismiss. FAU claims, among other things, that it is exempt from Dr. Nettleman’s claims because as a public university, and therefore a State entity, FAU has sovereign immunity, and that FAU has not consented to the lawsuit.
On October 11, 2016, Dr. Nettleman responded to FAU’s motion to dismiss, alleging that because FAU’s conduct deprived him of a constitutional right (namely Due Process), FAU had waived its sovereign immunity as to the copyright infringement claims.
On November 10, 2016, FAU responded to Dr. Nettleman’s October 11 filing, asserting that Dr. Nettleman’s conclusion that FAU had waived its sovereign immunity was incorrect.