Case 2:15-cv-01759-NVW Document 73-8 Filed 03/03/17 Page 1 of 25
EXPERT REPORT 4F

SEAN D. GARRISUN

In the Matter of:

Martinez v. Maricopa County Community

College Distrzct and Phoenix College

Case No. 2:12-cv-00702-DCG

APRIL 19, 2013

GARRISON 0001

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I have been retained by Maricopa County Community College District (the "District") in

the matter of Martinez v. Maricapa County Comrrturtity College District and Phoenix College,

Case No. 2:12-cv-00702-DCG, to provide an expert opinion and report based. upon my analysis

of 4 documents, which I understand to be course packets and/or lecture notes created by Dr.

Cleopatria Martinez intended for distribution to students in her math classes at Phoenix College.

I have been asked to opine as to whether the documents are the independent creation of Dr.

Martinez and, if not, whether the ongoing use of such documents by Dr. Martinez creates any

risk that the District could be subject to a claim of copyright infringement.

A summary of my opinions in this matter follows immediately below.

SUMMARY OF OPINIONS

• The document entitled "MAT 182 Precalculus Trigonometery Section Lecture

Notes Fall 2009" (Exhibit 1) is not the original creation of Dr. Martinez and, if the

District had not taken steps to prevent the copying and use of these materials by

Dr. Martinez, would subject the District to a serious risk of a copyright

infringement claim

• The document entitled "MAT 182 Trigonometry Spring 2Q 10" (Exhibit 2) is not

the original creation of Dr. Martinez and, if the District had not taken steps to

prevent the copying and use of these materials by Dr. Martinez, would subject the

District to a serious risk of a copyright infringement claim

The document entitled "MAT 082 Chapters for Basic Aszthmetic Spring 2010"

(Exhibit 3 is not the original creation of Dr. Martinez and, if the District had not

taken steps to prevent the copying and use of these materials by Dr. Martinez,

would subject the District to a serious risk of a copyright infringement claim

• There is just reason for concern that the document entitled "MAT 187 Precalculus

Algebra Section Lecture Notes Fall 2010" Exhibit 4 is not the original creation

of Dr. Martinez and was copied, at least in .part, from one or more other sources

• None of the Course Materials complies with the Classroom Guidelines articulated

by the representatives of the Ad Hoc Committee of Educational Institutions and

Organizations on Copyright Law Revision, and of the Authors League of

America, Inc., and the Association of American Publishers, Inc., which were

reproduced and incorporated the House Report (H.R. Rep. No. 94-1476)

concerning the 1976 revisions to the Copyright Act

• None of the Course Materials complies with the Permissions Documentation

solicited by Dr. Martinez from Pearson Education, Inc. in the Fall of 2010

• If the District were forced to defend a copyright infringement claim with respect

to any of the Course Materials, the. defense costs alone would undoubtedly be in

the hundreds of thousands of dollars if not more

GARRISON 0002

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• It was appropriate for the District to take proactive steps to prevent Dr. Martinez

from using the Course Materials and subjecting the District to an undue risk of

copyright infringement claims

FACTUAL BACKGROUND

In 2009-2010, Dr. Cleopatria Martinez prepared a series of course packets and lecture

notes (the "Course Materials") for distribution to and use by students in her mathematics courses

at Phoenix College..

In October of 2010, I was contacted by the District and asked to analyze whether the'

Course Materials appear to have been independently created or copied from other sources. I

subsequently met with 1VIr. Joe Sueyoshi (Math Department Chair at Phoenix College), Casandra

Kakar (Vice President of Academic Affairs at Phoenix College), and Margaret McConnell, an inhouse attorney for the District, at Phoenix College to discuss background of the matter.

Thereafter, Nate Edwards, an associate at Lewis and Roca working under my direction, and I

reviewed and analyzed the materials as requested. We prepared a memo to the District

summarizing our analysis, concluding that at least thxee of the four Course Materials were not

Dr. Martinez's independent creations, expressing concerns about the fourth, and recommending

that the District not permit further distribution and use of the materials. A copy of that memo is

attached as Exhibit 5.

COPYRIGHT LAW BACKGROUND

A party may obtain copyright protection for "original works of authorship fixed in any

tangible medium of expression." 17 U.S.C, § 102(a). works of authorship that are original

are protected by copyright law. Id. "Original, as the term is used in copyright, means only .that

the work was independently created...and that it possesses at least some minimal degree of

creativity." Ferst Publications, Inc. v. Rural Tel. Service Co., Inc., 499 U.S. 340, 356 (1991).

The elements of acopyright-infringement claim are (1) ownership of the copyright by the

plaintiff and (2) copying by the defendant.. See Feist, 499 U.S. at 361.

Facts, including mathematic definitions, formulas and calculations are not protectable by

copyright. See Educational Testing Services v. Katzman, 793 F.2d 533, 536-37 (3d Cir. 1986);

see also Chicago Bd. of Educ. v. Substance, Inc., 354 F.3d 624 (7th. Cir.2003) (holding copyright

protection exists for exam questions). Although facts are not subject to copyright protection, a

"compilation" of facts may be entitled to protection. Katzman, 793 F.Zd at 536-37; 17 U.S.C.

§103(a). But, that protection extends only to the original material added by the author of the

compilation, not to facts contained within the compilation. In other words, a single mathematic

equation or calculation is not entitled to copyright protection, but a compilation of equations and

calculations may be.

Math word problems and math exam questions can

possess "same minimal degree of creativity." See Feist

Mathematic word problems are p'rotectable where they do

expressing the equations/calculations on which they are based.

3

be protected expression if they

Publications, 499 U.S. at 356.

not represent the only means of

Educational Testing Service, 793

GARRISON 0003

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F.2d at 540. In other words, the mere fact that word problems refer to mathematic equations or

facts - or require use of equations or facts to solve them -does not, by itself, deprive the

problems of copyright protection. See id. (finding that there are numerous means to frame

questions. to test students knowledge of "square roots or dangling participles" and that. questions

testing this knowledge were protected under copyright Iaw). Therefore, because word problems

can reflect original expression in their word choice and explanations, they can be protected by

copyright even if they test knowledge of established mathematic formulas.

The Doctrine of Fair Use

Not all copying of protected expression necessarily subjects the copier to liability for

copyright infringement. Initially adopted and developed by the courts, the doctrine of fair use

was codified. by Congress in the 1976 Copyright Act. Specifically, section 10'1 (1'1 U.S.C. §.107)

provides:

[T]he fair use of a copyrighted work, including such use by

reproduction in copies ... for purposes such as criticism, comment,

news reporting, teaching (including multiple copies for classroom

use), scholarship, ar research, is not an infringement of copyright.

In determining whether the. use made of a work in any particular

case is a fair use the factors to be considered shall include-

(1) the purpose and character of the use, including whether such

use is of a commercial nature or is for nonprofit educational

purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to

the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of

the copyrighted work....

This language does not provide blanket immunity to teachers for "multiple copies for classroom

use." Princeton Univ. Press v. Mich. Doc. Servs., Inc., 99 F.3d 1381, 1385 (6th Cir.1996) (en

banc), cent. denied, 520 U.S. 1156, 117 S.Ct. 1336, 137 L.Ed.2d 495 (1997). Instead, "whether a

use referred to in the first sentence of Section 10'7 is a fair use in a particular case ... depend[s]

upon the application of the determinative factors." Campbell v. Acuff-Rose Music, Inc., 510 U.S.

569, 578, n. 9, 114 S.Ct. 1164, 1170 n.9, 127 L.Ed.2d 500 (1994), quoting S.Rep. No. 94-473, p.

62. No single factor is determinative, although factor (4) has emerged generally to be considered

the most important. Nimmer on Copyright, Val. 4, § 13.05[A][4], p. 13-198.2 (2012 ed.).

In evaluating the various fair use factors, the following principles should be observed:

With regard to factor (1), the purpose and character of the use, the Supreme Court has

stated that the central purpose of the investigation of this factor is to determine whether "the new

work merely supersedes the objects" of the griginal work, or whether it adds something new or

GARRISON 0004

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different in purpose or character; that is, is the new work "transformative"? Campbell, 510 U.S.

at 579.

With regard to factor (2), the nature of the copyrighted work, the more creative the work,

the greater protection it should receive against a finding of fair use; conversely; the more factual

and informational a work, the broader the scope. of finding fair use. Leadsinger, Inc, v. BMG

Music Publ'g, 512 ~'.3d. 522, 531 (9th Cir. 2007).

With regard. to factor (3), the amount and substantiality of the portion used, the inquiry is

both quantitative and qualitative. Nimmer on Copyright, Vol. 4, § 13.05[A][3], p. 13-198.

Copyright infringement can occur even if the amount of material infringed upon is low if the

copied material is the core of the protected material.. Harper &Row Publishing, .Inc. v. Nation

Entertainment, 471 U.S. 539, 565 (1985) (300 words of a full length book manuscript was not a

fair use).

With regard to factor (4), the effect of the. use upon the potential market. for or value of

the copyrighted work, this inquiry is not limited merely to the single defendant's conduct, but

instead considers whether the widespread and unrestricted conduct of the sort engaged in by the

defendant would adversely impact the potential. market or value of the copyright owner's work.

Nimmer on Copyright, Vol. 4, § 13.05[A][3], pp. 13-1983 - 13-198.4; American Geophysical

Union v. Texaco, Inc., 60 F.3d 913, 927 (2d Cir. 1994) (finding no fair use for researchers to

copy and distribute internally article from the plaintiff's publication).

Agreement on Guidelines for Classroom Conyin~ in Not-For-Profit Educational Institutions

With Respect toBooks and Periodicals

In connection with the revisions to the Copyright Act made in 1:976, and the enactment of

the new statute, an ad hoc committee consisting of representatives of the author-publisher and

educational organization constituencies was formed to discuss the issues of fair use of

copyrighted works in the classroom by not-for-profit educational .institutions. The committee

members agreed upon a set of guidelines that it believed should "state the minimum and not the

maximum standards of educational fair use." In other wards, whether copying that exceeds the

stated guidelines should be considered a fair use would be left to the courts.

In a joint letter to House Committee Chairman Kastenrneier, dated March 19, 1976, the

representatives of the Ad Hoc Committee of Educational Institutions and Organizations on

Copyright Law Revision,. and of the Authors League. of America; Inc., and the Association o£

American Publishers, Inc., communicated its agreed upon guidelines, which were reproduced

and incorporated in the House Report (H.R. Rep. No. 94-1476).1 The letter and guidelines are set

out immediately below:

'Excerpts from the House Report are reproduced in Copyright Office Circular 21, "Reproduction of Copyrighted

Works by Educators and Librarians," which is attached to this Report as Exhibit 6. I will refer to these guidelines

hereafter as the "Classroom Guidelines."

GARRISON 0005

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The purpose of the following guidelines is to state the minimum and not the maximum standards

of educational fair use under Section 107 of H.R. 2223. The parties agree that the conditions

determining the extent of permissible copying for educational purposes may change in the future;

that certain types of copying permitted under these guidelines may not be permissible in the

future; and conversely that in the future other types of copying .not permitted under these

guidelines may be permissible under revised guidelines. Moreovez, the following statement of

guidelines is not intended to limit the types of copying permitted under the standards of fair use

under judicial decision and which are stated in Section 107 of the Copyright Revision Bilt. There

may be instances in which copying which does not fall within the guidelines stated below may

nonetheless be permitted under the criteria of fair use.

Guidelines

I. Single Copying for Teachers

A single copy may be made of any of the following by or for a teacher at his or her individual

request for his or her scholarly research use in teaching or preparation to teach a class:

A. A chapter from a book

B. An article from a periodical or newspaper

C. A short story, short essay or short poem, whether or not from a collective work

D. A chart, graph, diagram, drawing, cartoon or picture from a book, periodical, or

newspaper

II. Multiple Copies for Classroom Use

Multiple copies (not to exceed in any event more than one copy per pupil is a course) may be

made by or for the teacher giving the course. for classroom use or discussion; provided that:

A. The copying meets the tests of brevity and spontaneity as defined below and,

B. Meets the cunnulative effect test as defined below and,

C. Each copy includes a notice of copyright

Definitions

Brevity

i Poetry: (a) A complete poem if less than 250 words and if printed on not more than two pages

or, (b) from a longer poem, an excerpt of not mare than 250 words.

ii Prose: (a) Either a complete article, story or essay of less than 2,500 words, or

(b) an excerpt from any prase work of not more than 1,000 words or 10% of the work, whichever

is less, but in any event a minimum of 500 words.

GARRISON 0006

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jEach of the numerical limits stated in "i" and "ii" above may be .expanded to permit the

completion of an unfinished line of a poem or of an unfinished prose paragraph.]

iii Illustration: One chart, graph, diagram, drawing, cartoon or picture per book or per periodical

issue.

iv "Special" works: Certain works in poetry, prose or in "poetic prose" which often combine

language with illustrations and which are intended. sometimes for children and at other times for

a more general audience fall short of 2,500' words in their entirety. Paragraph "ii" above

notwithstanding such "special works" may not be reproduced in their entirety; however, an

excerpt comprising not more than two of the published pages of such special work and

containing not more than ten percent of the words found in the text thereof, may be reproduced..

Spontaneity

i The copying is at the instance and inspiration of the individual teacher, and

ii The inspiration and decision to use the work and the moment of its use .fox :tx~axitnum teaching

effectiveness are so dose in time that it would be unreasonable to expect a timely reply to a

request for permission.

Cumulative Effect

i The copying of the material is for only one course in the school in which the copies are made.

ii Not more than one short poem, article, story, essay or two excerpts may be copied £rom the

same author, nor more than three from the same collective work or periodical volume during one

class term.

iii There shall not be more than nine instances of such multiple copying far one course during

one class term.

[The limitations stated in "ii" and "iii" above shall not apply to current news periodicals and

newspapers and current news sections of other periodicals.]

III. Prohibitions as to I and II Above

Notwithstanding any of the above, the following. shall. be prohibited:

A. Copying shall not be used to create or to replace or substitute for anthologies,

compilations ox collective works. Such replacement ar substitution may occur whether copies

of various works or excerpts therefrom are accumulated or reproduced and used separately.

B. There shall be no copying of or from works intended to be "consumable" in the course of

study or of teaching. These include workbooks, exercises, standardized tests and test booklets

and answer sheets and like consumable material.

7

GARRISON 0007

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C. Copying shall not:.

a) substitute for the purchase of books., publishers' reprints or periodicals;

b) be directed by higher authority;.

c) be repeated with respect to the same item by the same teacher from term to term.

D. No charge shall be made to the student beyond the actual cost of the photocopying.

Agreed March 19, 1976.

Ad Hoc Committee on Copyright Law Revision;

By Sheldon Elliott Steinbach.

Author-Publisher Group:

Authors League of America:

By Irwin Karp, Counsel.

Association of American Publishers, Inc.:

By Alexander C. Hoffman,

Chairman, Copyright Committee.

Although the foregoing guidelines are not controlling on the court, they have been

referred to and relied upon. by courts in fair use cases. involving copying for educational

institutions. See Marcus v. Rowley, 69S F,2d 1171, 1178 (9th Cir. 1983) (a teacher's retyping of

substantial portion of another teacher's copyrighted work held not be a fair use even though

intended for use in the classroom); Mzch. Doc.. Servs., Inc., 99 F.3d at 1391; Basic Books, Inc. v.

Kinko's Graphics Corp., 758 F. Supp. 1522, 1535 (S.D.N.Y. 1991).

The Rise o£Printed Coursebooks and Related Copyright Infringement Cases

Kinko's Copies Corp. was founded in 1970 at location near University of California at

Santa Barbara. "By the mid-1 9'70s Kinko's was providing custom publishing materials for

colleges, an innovation extremely popular with college professors.. The company had 80 stores,

averaging 400 square feet in space and located primarily near colleges and universities, by the

end of the decade." Kinko's Inc. History, htt~://www,fundin~universe.com/companvhistories/kinko-s-inc-history (accessed April 18, 2013)2. As Kinko's and other print shops

opened up around college campuses, they began copying and printing coursebooks for university

professors.

As reported on The Copyright Site, http://www.thecopyri~;htsite.org/scenarios/coursepacks.html:

In 1982. several publishing companies brought a law suit. against NYiJ, nine

faculty members, and a photocopying establishment. The Association of

American Publishers which coordinated the law suit on behalf of the publishing

companies sought an injunction to keep the professors from copying course

2 A printout of this article is attached as Exhibit 7 to the Report.

GARRISON 0008

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anthologies. The publishers reached an out-of-court settlement with the

defendants thus requiring the university to appropriate, promulgate, and invoke

more stringent copyright rules.3

The news of this settlement led to other publishers seeking to enforce their rights and

cases being filed in the courts. At issue in these cases was whether the creation and sale of

course packets to students was a fair use for educational purposes. One of the first decisions

involved Kinko's. Basic Books, Inc. v. Kinko's Graphics Corp., 758 F. Supp. 1522, X 535

(S.D.N.Y. 1991). The court Found that Kinko's copying and preparation of course packets for

students was not a fair use under the copyright statute. Similar cases followed. See Princeton

Univ. Press v. Mich. Doc. Servs., Inc., 99 F.3d 1381, 1385.(6th Cir.1996) (en bane), cent, denied,

520 U.S. 1156, 117 S.Ct. 1336, 137 L.Ed.2d 495 (1997); Blackwell Publ'g lnc. v. Excel

Research Group LLC, 661 F. Supp.2d 786 (E.D. Mich. 2009)..

THE FINANCIAL CONSEQUENCES OF A COPYRIGHT INFRINGEMENT CLAIM

Copyright Infrin~ementRemedies and Criminal Penalties

The Copyright Act, 17 U.S.C. § 1 Ol et seq., sets forth the civil remedies that are available

to a copyright owner Whose work has been infringed. These remedies may include injunctive

relief, damages and the recovery of attorney's fees. 17 U.S.C. §§ 502-505.

With respect to damages, a copyright owner is always entitled to the actual damages it

has suffered as a result of the infringement, plus any additional profits of the infringer that are

attributable to the infringement and not taken into account in computing the copyright owner's

actual damages. 17 U.S.C. § 504(b). Here, the textbook publishers would have two potential

avenues to pursue damages against the District if Dr. Martinez's Course Materials were

ultimately judged to infringe. First, if it were determined that students who were given the

Course Materials did not purchase the textbooks) used as the source of infringing content, then

the publishers) of the textbook would have a claim for lost profits on the sale of the textbook(s).

Second, the publishers) might make an infringer's claim for all or a portion of the course tuition

paid by the students to the District with respect to the particular math class.

As an alternative to pursuing actual damages, the owner of a registered copyright nnay

instead pursue statutory damages for the infringement.4 17 U.S.C. § 504(c). Under this section,

a copyright owner does not have to prove any actual damages from the infringement. Instead,

the owner may ask the court to award statutory damages in an amount of $750 to $30,000 per

work for non-willful infringement. If the infringement is determined to be willful, then the court

may award up to $150,000 per work. The copyright owner may elect this remedy at any time

before a final judgment is entered. Id, Here, there are at least 3 textbooks at issue. If, upon

becoming aware of a potential infringement issue, the District had failed to take steps to prevent

3 CoQ~eht Scenazios,http://www,thecopvriQhtsite,or~/scenarios/coursepacks,html, accessed April 1$.2013. A

printout of this article is attached as Exhibit 8 to this Report.

T searched the U.S. Copyright Office records and confirmed that each of the textbooks referred to in this report is

the subject of a registered copyright. Accordingly both statutory damages and attorney's fees would be available to

the publishers if they successfully proved copyright infringement at trial.

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copyright infringement, and a judge or jury were to determine that each of these. textbooks were

willfully infringed by Dr. Martinez, then the total statutory damages award could be as high as

$450,000.

Finally, a prevailing copyright owner is entitled to an award of its costs and reasonable

attorney's £ees incurred in litigating the matter. 17 U.5,C. § 505. In deciding whether to award

fees, the district court should consider the degree of success obtained; frivolousness; motivation;

objective unreasonableness (both in the factual. and legal arguments in the case); and the need in

particular circumstances to advance considerations of compensation and deterrence. Fogerty v.

.Fantasy, Inc., 510 U.S. 517, 535 n. 19, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994} (listing factors to

be considered for awarding attorney's fees in copyright actions). Any award of fees is within the

trial court's discretion. Id, at 534.

As discussed in the section immediately following, the average cost of litigation a

copyright case ranges from several hundred thousand to over a million dollars. See also Unicorn

Systems, Inc. v. Farmers Group, Inc,, 405 Fed. Appx. 152 (9~' Cir. 2010) (affirming fee award of

over $1.5 million); Range Road Music, Inc. v. East Coast Foods, Inc., 668 ~.3d 1148 (9th Cir.

2012) (affirming fee award of $162,728.22).

In addition, 17 U.S.C. § 506 provides that willful infringennent of a copyright may in

certain circumstances result in criminal penalties, including imprisonment and fines under 18

U.S.C. § 2319.

Co~vright Infringement Litigation Expense

It is very expensive to defend copyright infringement claims. Just one case would likely

cost the District hundreds of thousands, if not millions, of dollars to defend. The American

Intellectual Property Law Association (AIPLA) publishes a bi-annual economic survey entitled,

"Report of the Economic Survey," in which it reports on a variety of economic issues pertaining

to the acquisition and enforcement of intellectual properCy rights. This Report includes

information on the cost of intellectual property litigation. According to the most recent edition

of the AIPLA Report, the average copyright case filed in Arizona, in which there is less than $1

million in damages at issue, would cost a party $344,000 to take through trial. When there is

between $1 million and $25 million at stake, the average cost of a lawsuit rises to $1,064,040.5

Accordingly, even in cases where the pistrict has a legitinnate defense to the claim, the

economic consequences of being sued are immense. As discussed above, if the District did not

prevail, and a judgment was entered against it, the consequences would be even more severe.

Not only would the District be forced to pay its own a~tt~rneys and whatever damages might be

awarded to the plaintiff, but it could also be ordered to pay the plaintiff's attorney's fees.

In light of both the substantial monetary awards and fines that could be imposed in a

copyright infringement case, as well as the sheer cost to defend an infringement action, the

potential financial consequences to the District in a copyright infringement case are huge.

5 AIPI,A, 2011 Report of the Economic Survey, pp. I-163 and I-164. Relevant excerpts from the AIPLA Report are

attached as E~chibit 9 to this Repott.

Z~

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Accordingly, it becomes irr~portant for the District to act proactively, whenever reasonably

possible, to avoid such claims.

RESULTS OF COURSE MATERIALS REVIEW

For purposes of this Report, I have reviewed the following entitled packets:

• MA.T 182 Precalculus Trigonometery Section Lecture Notes Fa112009 (Ea~hibit 1)

• MAT 182 Trigonometry Spring 2010 (Exhibit 2)

• MAT 0$2 Chapters for Basic Arithmetic Spring 2010 (Exhibit 3)

• MA.T 187 Precalculus Algebra Section Lecture Notes Fa112010 .(Exhibit 4)

My review of the Course Materials indicates that at least significant portions of three of

these Course Materials were copied directly from other sources, including Basic Mathematics by

Charles P. McKeague (published by Cengage Education); Prealgebra by Alan R. Tussy and R.

David Gustafson (published by Thomson Learning, Inc.); and Precalculus by Michael Sullivan

and Michael Sullivan, III (published by Pearson Education,. Inc.).

None of the Course Materials includes any attribution to these or any other source texts,

which indicates that Dr. Martinez is portraying these works as her own independent creations. In

the MAT 187 notes documents, Dr. Martinez does generically thank a list of individuals for their

inspiration, ideas, comments and suggestions. However, none of these is the publisher of any

textbooks.

Documentation of Permission to Use Problems and Examples from Textbooks

I have reviewed several documents consisting of what I understand to be communications

between Dr. Martinez and representatives Pearson Education, Tnc. -the publisher of the Sullivan

textbook -concerning her request to use content from the Sullivan textbook in her course

materials and tests. Specifically, these documents are identified as Bates Numbers EEOG

000136 - EEOC 00.143. These communications occurred between April and October of 2010

and will be referred to collectively in this report as the "Permissions Documentation":

- April 13, 201D Fax (EEOC 000136-000137)

May 13, 2010 Fax (EEOC 000138-000139)

- August 23, 2010 email from Dr. Martinez to Estelle Simpson (EEOC 000140)

- October 8, 2010 email from Estelle Simpson to Dr. Martinez (EEOC 000141)

- Series of October 2010 emails between Dr. Martinez and Ms. Sinnpson (EEOC 000142-

000143)

(1) The April 13, 2010 Fcrx

The April 13, 2010 fax provides permission from Pearson for Dr. Martinez to make up to

35 copies of selected Homework problenns fronn Chapters 5-7 (pp. 371-563) of the work

Precalclus: Concepts Through Functions, A Right Triangle Approach (2007 ed.) for the class.

MAT187 Precalculus beginning in the Fall of 2010 at Phoenix College. This permission is

granted free of charge on the understanding that tha textbook would be used and purchased by

11

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students in the class. The permission is also contingent upon Dr. Martinez using the following

acknowledgment on the authorized copies.

"Sullivan, PRECALCULUS: CONCEPTS THROUGH FUNCTIONS, A

RIGHT TRIANGLE APPR, D 2007. Reprinted by permission of Pearson

Education, Inc."

(2) The May 13, 210 Fax

The May 13, 2010 fax provides permission from Pearson for Dr. Martinez to make up to

50 copies of selected Homework problems from Chapters 6-9 of the Precalclus: Concepts

Through Functions, A Right Triangle Approach. (2011 ed.) for the class MA.T187 Precalculus

beginning in the Fall of 2010 at Phoenix College. This permission is granted free of charge on

the understanding that the textbook would be used and purchased by students in the class. The

permission is also contingent upon Dr. Martinez using the following .acknowledgment on the

authorized copies:

"Sullivan, PRECALCULUS: CONCEPTS THROUGH FUNCTIONS, A

RIGHT TRIANGLE AFPR, D 2011. Reprinted by permission of Pearson

Education, Inc."

(3) The August 23, 2010 email

The August 23, 2010 email correspondence addresses whether Dr. Martinez needs

permission from Pearson to create and use in her lecture notes her own examples and problems

that are "similar to the selected examples" contained in the Sullivan textbook. The Pearson

representative advises that she does not need such permission. This makes perfect sense

because, as described in the e-mail, Dr. Martinez would be creating her own examples,r.e. an

independent. creation.

(4) The October 8, 2010 email

The October 8, 2010 email correspondence addresses whether Dr. Martinez may

incorporate actual examples from the Sullivan textbook in her class lecture notes distributed to

the students. The Pearson representative advises that she may do so only if the textbook is being

used for the class and purchased by the students in the class. This e-mail exchange can be

viewed as a follow-on to the April 13 and May 13 faxes discussed above.

(S) The series of additional October 2010 emails

The series of emails from October 13 to October 19, 2010 concerns whether Dr. Martinez

may use problems from two different textbooks -the Sullivan Precalculus textbook and the

Briggs/Cochran Calculus textbook - in the tests she .gives to her students. Again,. the Pearson

representative advises. that she may do so only if the textbooks are being used for the class and

purchased by the students in the class.

12

GARRISON 0012

Case 2:15-cv-01759-NVW Document 73-8 Filed 03/03/17 Page 13 of 25
These emails apply only to exams and tests and not to any course packets or lecture

notes. Accordingly, they are not pertinent to my analysis here, except as evidence that the

textbook publishers are diligent and specific with respect to the manner in which they authorize

use of excerpts of textbooks for in class usage.

The Permissions Documentation is attached collectively as Exhibit 10 to this Report.

Analysis of Course Materials

Presented below are charts detailing discrepancies in the text of the Course Materials and

instances where I discovered content of the Course Materials to be substantially similar or

identical to the content in other textbook sources.

Precalculus Trigonometery Section Fall 2009 (MAT 182)

Although the cover page states "Fall 2009," the heading an the internal pages shows

Spring 2010, which suggests that these lecture notes were used in consecutive semesters. These

lecture notes were intentionally and systematically copied fzom the Sullivan book Precalculus,

Concepts Through Functions, Instructor's Edition. It is my understanding, however, that this

textbook was not used in the Spring 2010 MAT182 class. Indeed, Dr. Martinez has

acknowledged in writing that one of the reasons she created. these kinds of materials for her

students was because "many of my students cannot afford to buy a math textbook."6

-OUliS~+ MAT'RRIAL3 DtSGREPANCY ~RTER'T~ ~ SOURCE INEORhfAI'ION

PAGPJ UESTtON# ..

Page 6 of 73 Problemsin Section 12 copied directly from source text Precaclu/us, Sullivan, p.

Section 1.2 371-372

Page 8 of 73 Example for Area of a Sector is copied from source text Precaclufus, Sullivan, p. 369

(Example 7)

Page 10 of 73 Arc length problems are copied directly from source text Precaclulus, Sullivan, p. 372.

Section 13

Page 14 of 73 Right Triangle homework problems are copied directly from source text Precaclu/us, Sullivan, p.

Section 1.4 383-384

Page ]6 of 73 Example 6 copied from source text; no examples 1-5 appear in this section o£ the course Precaclulus, Sullivan, p. 382

materials

Page 17 of 73 Pythagorean Identity problems ure copied from sowce text Precaclutus, Sullivan, p. 384

Section 1.5

Page 20 of 73 - Examples 1 -5 ate identical to source lead Precadu/us, Sullivan, p.

Page 21 of 73 387.390

Page 22 of 73 Problems (including introductory text) copied from source text; "Projectile Motion" section Precacfulus, Sullivan, p.

Section 1.6 (including the image) is copied verbatim from source text 393-394

Page 23 of 73 Examples 1 and 2 copied substantially from sowce text;: includes some verbatim copying Precaclu/ur, Sullivan, p.

398-399

Page 24 of 73 Examples 3 and 4 copied substantially from source text; includes some verbatim copying Precaclulus, Sullivan, p.

400-402

Page 25 of 73 Examples 5-7 copied substantially from source text; includes some verbatim copying Precaclulur, Sullivan, p.

402-404

6 A copy of Dr. Martinez's email is attached as E~ibit 11.

13

GARRISON 0013

Case 2:15-cv-01759-NVW Document 73-8 Filed 03/03/17 Page 14 of 25
OURSEM;4'CERt.4LS UISCR.EPANCYORTfiXT SOURCF.INFORMATION

PAGE/ UES7ION #

Page 26 of 73 Problems are copied directly from source text T v ~~ Precaclulus, Sullivan, p.

Section 1.7 406-407

Page 29 of 73 Circle Trig homework problems copied directly from sowce text Precaclulus, Sullivan, p. 416

Section 1.8

Page 34 of 73 Graphs &Transformations problems copied directly from source text Precaclulus, Sullivan, p.

Section 1.9 429-430

Page 35 of 73 Tables arc copied from Table 9 and Figure 93 of source text Precaclulus, Sullivan, p. 433

Page 37 of 73 Graphing the Tangent problems copied directly from source text Precaclulus, Sullivan; p.

Section 1.10 43?-~38

Page 44 of 73 Inverse Sine problems are copied directly from source text Precaclulus, Sullivan, p.

Section 1.1l '469-470

Page 47 of 73 Values of Inverse Trig Functions Homework problems copied directly from source text Precaclulus, Sullivan, p.

Section 1.12 476-477

Page 51 of 73 Trigonmetric Identities T~omework problems copied directly from sowce text Precac/ulus, Sullivan, p. 483

Section 1.13

Page 57 of 73 - Sum and Difference Formulas Homework problems copied directly from source text Precaclulus, Sullivan, p.

Page 58 of 73 492-493

Section 1.14

Page 61 of 73 - Double-angle problems copied directly from source text Precaclulus, Sullivan, p.

Page 62 of 73 501-502

Section 1.15

Page 65 of'73 - Sowing Trig Equations problems copied directly from source text Precaclulus, Sullivan, p.

Page 66 of 73 510-511 and 518-519

Section 1.16

Page 67 Applications Involving Right Triangle problems copied directly from source text Precaclulws, Sullivan, p. 531

Section 1.17

Page 71 of 73 - Law of Sines homework problems copied directly from source text Precac/ulus, Sullivan, p.

Page 72 of 73 539-540

Section 1,18

Page 73 of 73 - Law of Cosinss homework problems copied directly from source text Precaclulus, Sullivan, p. 547

Page 74 of 74

Section 1.19

First, in light of the substantial copying evidence above, I conclude that these lecture

notes are not the original creation of Dr. Martinez. At best, they constitute a derivative work that

would likely require permission from the copyright owner of the original work (Pearson

Education, Inc.)

For several reasons, none of the Permissions Documentation appears to be applicable to

this document. First, the Permissions Documentation states that the permission requested and

authorized is to begin in the Fall of 2010. These lecture notes state Fall of 2009 and Spring of

2010, which pre-dates the effective permission date. Second, the Permissions Documentation

(EEOC 000136-000X39) applies only to the MAT187 - Precalculus class, not MAT182. Third,

these lecture notes do not contain the acknowledgment required by the Permissions

Documentation. Finally, I understand from Mr.. Joseph Sueyoshi (Phoenix College Math

Department Chair) that Dr. Martinez did not use the Sullivan Precalculus textbook xn her Spring

2010 MAT182 class. I have not been provided with any other documentation indicating that Dr.

Martinez received permission to copy from the Sullivan Precalculus textbook for her Fall 2009

14

GARRISON 0014

Case 2:15-cv-01759-NVW Document 73-8 Filed 03/03/17 Page 15 of 25
or Spring 2010 MATI 82 class. Accordingly, I conclude that if the District had not taken steps to

prevent the copying and use of these materials by Dr, Martinez, her use and distribution of them

would subject the District to a serious risk of a copyright infringement.. claim by Pearson

Education, Inc.

With respect to the four statutozy fair use factors, these lecture notes do not appear to be

transformative in any significant way; they merely copy examples from the textbook. The notes

have the potential to serve as a replacement for the textbook in the event that students were not

required to purchase the textbook for the class. An arguably substantial portion, both

quantitative and qualitative, of the textbook has been copied. All three of these factors weigh

against a finding of fair use. The only factor that clearly falls in favor of fair use is the. nature of

the copyrighted work itself.

In addition, these excerpts do not meet the "Classroom Guidelines" for fair use in the

House Report. First, the copying does not meet the brevity, spontaneity ox cumulative effect

limitations in the Classroom Guidelines. Second, the lecture notes do not .contain any copyright

notices as mandated in Section IIC of the Classroom Guidelines. To the extent the textbook was

not used and purchased by students in the class, these lecture notes would not comply with

Prohibition IIIC(a). To the extent these notes are intended to be re-used in subsequent semesters,

they would not comply with. Prohibition IIIC(c).

Because I have been provided no documentation indicating that this copying has been

authorized by Pearson Education, Inc., 1 conclude that if the District had not taken steps to

prevent the copying and use of these materials by Dr. Martinez, her use and distribution of them

would subject the District to a serious risk of a copyright infringement claim by Pearson

Education, Inc.

MAT 182 Trigonometry Sprin~`2010

This second set of materials reviewed consist of 50 pages with the heading MAT182

Trigonometry Spring 2010. The first 24 pages of this document are numbered "Page 1 of 24" to

"Page 24 of 24"; the 25th page is numbered "Page 25 of SQ," and that pagination header

continues to the end of the document (Page 50 of 50).

These materials do not contain homework problems but appear to be handouts with

examples to be used for taking class notes. I understand this document was obtained from a

student in Dr. Martinet's Spring 2010 MAT 1$2 class. It includes what appear to be handwritten

notes nn various pages of the document. A review of these materials show that the incorporated

examples were also copied firom the Sullivan Precalculus textbook.

OUILSE MATERIALS DISCREPANCY OR T~,KT SOURCP 1?Jp0~MA1TON

PAGF/ UESTTON #

Page 1 of 24 Trig Functions of General Angles taken from the source text ~ Precoclulus, Sullivan, p. 398

(Examples 1 and 2)

Page 5 of 24 Domain & RangeTrig Functions Precac/ulus, 5ultivan, p.

413-414 (Example 2)

Page 6 of 24 Using even and odd properties Precaclulus, Sullivan, p.

414-415 (Example 3)

IS

GARRISON 0015

Case 2:15-cv-01759-NVW Document 73-8 Filed 03/03/17 Page 16 of 25
OiJRSE MA7'2RIALS ~ DISCREPANCY OR 7$XT~- SOLIRC&INPORMATTO~I

YAGti! UESTION H

Page 9 of 24 Examples for graphing sine and cosine identical to source text PrecacJulus, Sullivan, p. 419

(Example I) and 421

(Example 3)

Page 10 of 2A y=2cos x text and graph tracks source tee PrecacJulus, Sullivan, p.

422-423

Page 11 of 2Q Examples for amplitude identical to source text Precnclalus, Sullivan, p. 425

(Example 6) and p. 426

(Example 7)

Page 12 of 24 Substantially copied from Table 9 and Figure 93 in sowce text Precaclu/us, Sullivan, p. 433

Page 13 of 24 Bottom graphs (y =cot x) appeazs to be a direct copy from the text Precaclulus, Sullivan, p. 436

Page I4 of 24 Top graph (y= csc x) appears to be a direct copy from the text Precaclulus, Sullivan, p. 436

Pagc 15 of 24 - Copies examples directly from textbook PrecacTulus, Sullivan, p.

Page 17 of 24 461-469 (Examples 1-9)

Page 21of 24 - Copies examples directly from te~ctbook Precaclulus, Sullivan, p.

Page 22 of 24 472-475 (Examples 1, 2, 4,6}

Page 25 of 50 - Copies Trig [dentities examples from textbook end merely changes the order of appearance Precaclufus, Sullivan, p. 479

Page 26 of 50 (E~cample 1)

Page 27 of 50 - Copies "More examples" directly From textbook; summarizes "Guidelines for Establishing Precaclulus, Sullivan, p.

Page 28 of 50 Identities" from box in textbook 479.482 (Examples 2-$)

Page 31 of 50 • Copies examples directly from textbook Precaclufus, Sullivan, p.

Page 32 of 50 488-490 (Examples 4-8)

Page 39 of 50 - Copies problem examples directly from textbook Precaclufus, Sullivan, p.

Page 40 of 50 507-508 (Examples 1-4) and

51.4 (Example 1)

Page 41 of 50 Copies problem examples directly from textbook Precaclulus, Sullivan, p.

414-515 (Examples 2-4)

Page 42 of 50 Copies problem examples directly from textbook Precaclulus, Sullivan, p. 528

(Examples 1 and 2)

Page 43 of 50 Word problem is an identical copy to Example 3 in textbook Precaclu/us, Sullivan, p. 529

(Example 3)

Page 44 of 50 Law of Sines taut and images aze identical to textbook Precaclulus, Sullivan, p. 533

Page 45 of 50 "Solve the oblique Viangle" text is virtually verbatim PrecacPulus, Sullivan, p. 533

Page 46 of 50 - Law of Sines problem examples copied directly from textbook Precaclu(us, Sullivan, p.

Page 48 of 50 534-537 (Examples 1-5)

Page 49 of 50 - Law of Cosines problem examples are copied directly from textbook Precaclulus, Sullivan, p. 545

Page 50 of 50 (Examples 1 and 2)

Por the very same reasons as stated above with respect to the "Precalculus Trigonometezy

Section Fall 2009 (MAT 182)" lecture notes, the Permissions Documentation sought by Dr.

Martinez do not appear to be applicable to these lecture notes.

With respect to the four statutory fair use factors, these lecture notes do not appear to be

transformative in any significant way; they merely copy examples from the textbook. The notes

have the potential to serve as a replacement far the textbook in the event that students were not

required to purchase the textbook for the class. An arguably substantial portion, both

quantitative and qualitative, of the textbook has been copied. All three of these factors weigh

against a finding of fair use. The only factor that clearly falls in favor of fair use is the nature of

the copyrighted work itself.

16

GARRISON 0016

Case 2:15-cv-01759-NVW Document 73-8 Filed 03/03/17 Page 17 of 25
In addition, these excerpts do not meet the "Classroom Cruidelines" for fair use in the

House Report. First, the copying does not meet the brevity, spontaneity or cumulative effect

limitations in the Classroom Guidelines. Second, the lecture notes do not contain any copyright

notices as mandated in Section IIC of the Classroom Guidelines. To the extent the textbook is

not used and purchased by students in the class, these lecture notes would not comply with

Prohibition IIIC(a). To the extent these notes are intended to be re-used in subsequent classes,.

they would not comply with Prohibition IIIC(c).

Although basic formulas andlor symbols do not contain sufficient creativity to be

copyrightable, the copying here is enough to create a significant risk that the compilation of the

various formulae and examples used have been copied directly from the Sullivan textbook and

are not the original work of Dr. Martinez. Because. I have been provided no documentation

indicating that this copying has been authorized by Pearson Education, Inc., I conclude that if the

District had not taken steps to prevent the copying and use of these materials by Dr. Martinez,

her use and distribution of them would subject the District to a serious risk of a copyright

infringement claim by Pearson Education, Inc.

IIasic Arithmetic (MAT082)

QURSE MATERIALS' DISCREPANCY OR TEXT _. SOURCF; Ih"FORMATION. .

PAGN/ UES770N #

Page 29 of 105; piscrepancv: For the median and mode examples, the term "Juanita's Card Shop" is used, N/A

Page 30 of 105 But, for the. mean example, "Sarah's Card Shop" is used. In light of the evidence of other

substantial copying, this is suggestive of copying a series of problems related to "Sarah's

Card Shop" and changing "Sazah" to "Juanita" in some of the problems

Page 49 of 105, Copiesproblems verbatim from textbook Basic Mathematics

Nos. 1-24 Charles P. McKeague

p. 283

Page 49 of 105, Problem No,_~7,_c~e~p9_n_d~_,with Chapter 4 I Problem No 36 Basrc Mathematics

Nos. 27 and 28 Identical image: Chazles P. McKeague

u p. 285

H

V

_I

A 8 C 4 k

Identical. text:

• "the diagram below, AC represents the length of the line segment that starts at A and ends

at C"

• "we see that AC = 8"

• "a. Find the ratio of BC to AC"

• "b. What. is the length Ati'?"

• "c. Find the ratio of DE to AE."

Problem No 2S corresRonds with Chapter 4 1 Problem No 33

These questions are neazly identical, the Course Materials replace "rent' with "house

These references were found through Tnternet searches, and screenshots from pages of the textbook are attached

hereto as E~chibit 12.

17

GARRISON 0017

Case 2:15-cv-01759-NVW Document 73-8 Filed 03/03/17 Page 18 of 25
~- OURSE MATER'3AL DISCABPAIdCY ORTEXT SOIIRCH INF6RMATT(n1

PAGPI UESTION #

payment", and ohange the dollar amount of the house paymenUrent. The Course Materials

use a different graph. The problems aze approximately 80%identical, the problem in the

Course Materials appears immediately after tfieprobtem above and both problems appear in

the same section of the outside source. Thus, we conclude there is a strong likelihood this

problem was copied.

Page 50 of 105, Problem No 29. corresponds with Ch~p~gr 4 2. Pro~lerp No. l Basic Mathematics

Nos. 29-32 Identical text except Course Materials add "Draw a pichve demonstrating this" after the Charles P. McKeague

identical text, p. 289

"A car travels220 miles in 4 hours. WhaYs the rate of the car in miles per hour?"

Problem No 30. corresponds with Chanter 4.2. Problem No.2

Identical text except Course Materials add "Draw a picture demonstrating this" after the

identical text.

"A train travels 360 miles in 5 hours. What's the rate of the train in miles per hour?"

Problem No 31 corre~onds with Chanter 4 2. Problem No 5

Identical text except Course Materials add "Draw a picture demonstrating this" after the

identical tee.

"'T'he flow of water from a water faucet can fill a 3-gallon container in 15 seconds. Give the

ratio of gallons to seconds as a rate in gallons per second."

Problem No 32 corresponds with Chanter 4 2 Problem No 9

Identical text

"A car travels 95 miles on 5 gallons of gas. Give the ratio of miles to gallons as a rate in

miles per gallon."

Page 60 of 105, Problem No 5 corre~gnds with Chanter 5 Problem No 66 Prealgebra

Nos. 5 and 6 Identical text except for omission of "by a stake" in Course Materials Afan R. Tussy

"A wire from the top of a 24-foot pole is fastened to the ground by a stake 10 feet from the R. David Gustafson

bottom of the pole. How long is the wire?" p. 420

Problem No 6. cg~Ronds with Chanter 5. Problem No. 65

Identical text

"A ladder is leaning against the top of a 15-foot wall. If the bottom of the ladder is 20 feet

from the wall, how long is the ladder?"

Page 74 of 105, Problem No 1. corresRiiids_with,ChaFt~T~FiQure 9.8 Prealgebra

Nos. 1, 11 and 14- Identical tent Alan R. Tussy

16 "How many cubic feet of water are needed to fill a spherical water tank with a radius of 15 R. David Gustafson

feet' p..615 (No. 1)

p. 620 (Nos. 11, 14-16)

p~pblem No 11 corresponds with Ch~Dter 9 'Problem No 50

Identical text

"A classroom is 40 feet long, 30 feet wide, and 9 feet high. Find the number of cubic feet of

air in the room."

problem No 14 corresponds with Chanter 9 Problem No 52

Identical text except Course Materials replace "advertised in a J.C. Penny catalog" with "in

New Mexico"

"The largest refrigerator advertised in a J.C. Penny catalog has a capacity of25:2 cubic feet.

How many cubic inches is this?"

Problem No IS cones~onds with Chapter 9 Problem No SS

Identical teak

"The lifting power of a spherical balloon depends on its volume. Kow many cubic feet of

gas will a balloon hold if it is 40 feet in diameter?"

plgblem No. 16. corresponds with Chapter 9. Problem No 56

Identical tee

"A box of cereal measures 3 by 8 by 10 inches. The manufacturer plans to market s smaller

1g

GARRISON 0018

Case 2:15-cv-01759-NVW Document 73-8 Filed 03/03/17 Page 19 of 25
:;OURSE MA"IERIALS DISCRF.PA~iCY OR THXT SOURCE IN}'01~1~tAT[ON

PA'6PJ UFSTTON kt _

box that measures 2.5 by 7 by 8 inches. By how much will the volume be reduced?"

~'or the very same reasons as stated above with respect to the "Precalculus Trigonometery

Section Fall 2009 (MAT 182)" and "MA.T182 Trigonometry Spring 2010" lecture notes, the

Permissions Documentation sought by Dr. 1Vlartinez do not appear to be applicable to this set of

course materials.

With respect. to the four statutory fair use factors, these lecture notes do not appear to be

transformative in any significant way; they merely copy examples from the textbook. The notes

have the potential to serve as a replacement for one or both textbooks in the event that. students

were not required to purchase both textbooks for the class. An arguably substantial portion, both

quantitative and qualitative, of the textbook has been copied. All three of these factors weigh

against a finding of fair use. The only factor that clearly falls in favor of fair use is the nature of

the copyrighted work itself.

In addition, these excerpts do not meet the "Classroom Guidelines" for fair use in the

House Report. First, the copying does not meet the brevity, spontaneity or cumulative effect

limitations in the Classroom Guidelines. Second, the lecture notes do not contain any copyright

notices as mandated in Section IIC of the Classroom Guidelines. To the extent the textbooks are

not used and purchased by students in the class, these lecture notes would not comply with

Prohibition IIIC(a). To the extent these notes are intended to be re-used in subsequent classes,

they would not comply with Prohibition IIIC(c).

In light of the substantial amount of verbatim copying contained in this set of materials, I

conclude that this document is not the original work of Dr, Martinez. Because I have been

provided no documentation indicating that this copying was authorized by the publishers

(Cengage Learning and. Thomson Learning, Inc.), I likewise conclude that if the District had not

taken steps to prevent the copying and use of these materials by Dr. Martinez, her use and

distribution of them would subject the District to a serious risk of a copyright infringement claim

by Cengage Learning and/or Thomson Learning, Inc..

Precalculus Algebra Section Lecture Notes Fall 200 (MAT 1871

This document was provided in Adobe PDF format that appears to have been created

from a Word document. Although the cover pages indicates that these nnaterials were created for

use in the "Fall 2010" MAT187 course, the internal pages indicate "Spring 2010" in the header.

This suggests that the content may have been utilized prior to the Fall of 2010. Due to the lack

of any word problems in this work, and our limited access to potential source works, I have not

determined whether this particular work is a work of independent creation by Dr. Martinez,

whether she copied the problems from the Sullivan Precalculus textbook pursuant to the

Permissions Documentation, ox if she copied problems and equations from other works as is

clearly the case in the other materials. I do note sonne irregularities within this document that are

suspicious and suggest that at least some of the content in these lecture notes were copied from

another source:

19

GARRISON 0019

Case 2:15-cv-01759-NVW Document 73-8 Filed 03/03/17 Page 20 of 25
'OUR56 MATPR~AI,S

PAGE! UE5T[ON N

DISCREPANCY OR'T`L~XT

_

SOURCE INFORMATION

p. 21 In Homework for Symmetry, the introductory text states "In problems 29-37.,..".but the

..~._T.

N/A

problems immediately following the intro pazagraph are numbered l-5, which suggests that

these problems were copied from another source and simply renumbered.

p. 22 Graphs in problems 6-28 aze not presented in a consistent appearance N/A

I cannot state definitively at this time whether this particular work was created

independently, nor is there sufficier►t evidence in the work itself for me to form an opinion that it

was copied from other sources without permission. I understand that Dr. Martinez contends that

she independently re-wrote these lecture notes over the summer of 2010. However, in light of

the discrepancy found on page 21 and the history of copying evident in the other Course

Materials, there is still reason for the District to be concerned.

Moreover, to the extent Dr. Martinez copied any of this content from the Sullivan

Precalculus textbook, these lecture notes do not comply with the Permissions Documentation.

Specifically, this document does not contain the required acknowledgment:

"Sullivan, PRECALCIJI..US: CONCEPTS THROUGH FUNCTIONS, A

RIGHT TRIANGLE APPR,U' 2011. Reprinted by permission of Pearson

Education, Inc."

It is unknown whether any content may have copied from Chapters not covered by the

Permissions Documentation or how many copies of these lecture notes were made. In any event,

if these lecture notes were indeed used and distributed in Dr. Martinez's MA.T187 Fall 2010

class, and were copied fronn the Sullivan Precalculus textbook, her failure to include the required

acknowledgment would subject the llistrict to a potential copyright infringement claim by

Pearson Education, Inc. based on these lecture notes.

Finally, to the extent Dr. Martinez copied any of this content from the Sullivan

Precalculus textbook or other textbooks, these excerpts do not meet the "Classroom Guidelines"

far fair use in the House Report. First, the copying does not meet the brevity, spontaneity ar

cumulative effect limitations in the Classroom Guidelines. Second, the lecture notes do not

contain any copyright notices as mandated in Section IIC of the Classroom Guidelines. To the

extent the textbook is not used and purchased by students in the class, these lecture notes would

not comply with Prohibition IITC(a). To the extent these notes are intended to be re-used in

subsequent classes, they would not comply with Prohibition IIIC(c).

20

GARRISON 0020

Case 2:15-cv-01759-NVW Document 73-8 Filed 03/03/17 Page 21 of 25
CONCLUSION

For all the foregoing reasons, it was necessary and appropriate that the District took

proactive measures, including imposing restrictions on copying, to prevent one of its professors

from subjecting the District to a claim of copyright infringement by one.. or more. textbook

publishers.

STATEMENT OF COMPENSATION

With regard to my work in connection with the preparation of this Report and any

testimony to be given in this case, I am charging the District $500 per hour, plus reimbursement

of out of pocket expenses.

April 19, 2013

21

GARRISON 0021

Case 2:15-cv-01759-NVW Document 73-8 Filed 03/03/17 Page 22 of 25
APPENDIX. A

Witness Qualifications

Mr. Garrison is a partner in the law firm of Lewis and Roca LLP and former chair o£ its

Intellectual Property practice group. Mr. Garrison has practiced in the area of intellectual

property, including various copyright law matters, for 21 years. He counsels clients in copyright

authorship and fair use matters and has represented educational institutions, including school

districts, colleges and universities in a variety of intellectual property matters.

Mr. Garrison is listed in the 2007-.2013 editions of The Best Lawyers in America, by

Woodward/White, Aiken, S.0 in the category of Intellectual Property Law and in the 2012-

2013 editions for Copyright Law, Patent Litigation, Trademark Law and Technology Law. Mr.

Garrison has been named Best Lawyers Lawyer of the Year in 2013 for Copyright Law in

Phoenix.

Publications Authored in Last 10 Years: None.

Deposition and Trial Testimony in Last 4 Years: None.

Attached hereto is Mr. Garrison's CV.

GARRISON 0022

Case 2:15-cv-01759-NVW Document 73-8 Filed 03/03/17 Page 23 of 25
Case 2:15-cv-01759-NVW Document 73-8 Filed 03/03/17 Page 24 of 25
Case 2:15-cv-01759-NVW Document 14-5 Filed 11/04/15 Page 1 of 1

'~ February 21, 2015

~

~

Governing Board President Tracy Livingston

Governing Board Secretary Johanna Haver

Governing Board Member Alfredo Gutierrez

~ Governing Board Member Danna F. Saar

~ Office of the Governing Board

Maricopa Community Colleges

2411 West 14'" Street

Tempe, Arizona 85287-6941

RE: Employee Grievances

Governing Board Member Doyle Burk

Governing Board Member John Heep

Governing Board Member Jean McGrath

Dear President Livingston and Honorable Governing Board Members,

The purpose of this letter is to request MCCCD follow the grievance policy process and to

inquire as to why the grievance that I filed on May 3, 2010, pursuant to Section 6.1 of the

Residential Faculty Policies (RFP), against Mathematics Chair, Joe Sueyoshi, which I handdelivered was not given to the .Governing Board. There is no dispute about this issue because a

member on the governing board told me the Board never received my grievance. In addition,

was told by a secretary since thirty (30) days had passed without response from the Governing.

Board, the decision of the Chancellor is final and f could not appeal further as it was untimely.

believe that someone in their official andlor individual capacity intentionally prevented my

grievance from getting to the Governing Board for a final decision.

On August 13, 2014, I filed another timely formal grievance pursuant to Section 6.1 of the RFP.

was told that !could not meet with my immediate supervisor fio see if the grievance could be

resolved. In addition, I was told by Human Resources that I could not file a grievance until

return to work after being suspended for fifteen (15) months without pay. I was told that f would

be allowed to return to work in August 2015. The grievance that I filed on August 13, 2014, has

not been processed. Therefore, what has occurred regarding the two grievances that I filed,

including how they were handled is in violation of the RFP.

The purpose of the RFP is to provide a clear, orderly, efficient, and expedient process through

which all employees of the college district may process bona. ode complaints or grievances..

Employees using the grievance procedures outlined in Section 6.1 of the RFP shall be entitled

to do so without fear of retaliation, interfHrence, coercion or discrimination.

am requesting within ten (10) days of receipt of this letter a written response why my

grievances we~~ nit processed pursuant to Section 6.1 of the RAP.

Sincerely,

~:~..~~jav~;~c.~~~ ' 

. ..~-

Cleopatria Martinez, PhD

cc: NAACP President Dan Harris, Esq.

7030 N. 21 gt St., Phoenix, Arizona 85020

Email: 4cleopatria(a~gmail. com

Celt: 480-888-6375

Case 2:15-cv-01759-NVW Document 73-8 Filed 03/03/17 Page 25 of 25