Do not remove under penalty of law

• Tom Hoffman left this comment in response to Fair use scenario - Mr. Jones and YouTube: The thing is, some of this stuff isn't really ethics. I don't even know what it is. How do you categorize whether or not you ought to honor arbitrary terms of service statements on websites. Or, looking at it another way, I can't imagine what the "ethical" argument for not allowing you to save a local copy of a video you're viewing in a flash player.
• Francey Harris asks whether the terms and conditions of a database or Fair Use guidelines take precedence when making a decision.
• Several commenters state that they are very nervous about cracking copy protection schemes (criminal under the Digital Millennium Copyright Act) in order to use other's work within Fair Use provisions.

Ah, it seems that the use of intellectual property in schools may still be complex and worrisome even with new fair use guidelines with many interrelated moral decisions that need to be made. And, of course, there is another entire body of ethical choices around the personal, non-educational use of IP.

Increasingly I see the wisdom of the statement, "Applying fair use reasoning is about reaching a level of comfort, not memorizing a specific set of rules." from Temple University's 10 Common Misunderstandings About Fair Use. I suspect that if there are three people in a room, there will be three levels of comfort regarding how or if copyrighted materials should be used.

Perhaps one reason this topic is so confusing is that there is not "one right answer" to any of these choices we are making about IP, but only "individual right answers." Is it time to revisit our old friend Larry Kohlberg and his Stages of Moral Development from our Ed Pysch 101 classes?

From "Kohlberg's Theory of Moral Development" (at About.com):

Level 1. Preconventional Morality

• Stage 1 - Obedience and Punishment  The earliest stage of moral development is especially common in young children, but adults are capable of expressing this type of reasoning. At this stage, children see rules as fixed and absolute. Obeying the rules is important because it is a means to avoid punishment.

• Stage 2 - Individualism and Exchange  At this stage of moral development, children account for individual points of view and judge actions based on how they serve individual needs. In the Heinz dilemma, children argued that the best course of action was whichever best-served Heinz’s needs. Reciprocity is possible, but only if it serves one's own interests.

Level 2. Conventional Morality

• Stage 3 - Interpersonal Relationships  Often referred to as the "good boy-good girl" orientation, this stage of moral development is focused on living up to social expectations and roles. There is an emphasis on conformity, being "nice," and consideration of how choices influence relationships.

• Stage 4 - Maintaining Social Order At this stage of moral development, people begin to consider society as a whole when making judgments. The focus is on maintaining law and order by following the rules, doing one’s duty, and respecting authority.

Level 3. Postconventional Morality

• Stage 5 - Social Contract and Individual Rights At this stage, people begin to account for the differing values, opinions, and beliefs of other people. Rules of law are important for maintaining a society, but members of the society should agree upon these standards.

• Stage 6 - Universal Principles Kolhberg’s final level of moral reasoning is based upon universal ethical principles and abstract reasoning. At this stage, people follow these internalized principles of justice, even if they conflict with laws and rules.

Do we get a variety of answers about IP use because each of us may be at a different level of moral development?

It's interesting that the arguments that Lessig is making in his book Remix and that Richard Stallman and others in the Free Software movement fall squarely into Stage 6: Universal Principles - that society's ability to use and build on IP property should be given precedence over unlimited control of the IP by its owners.

At what stage do your responses to questions of intellectual property use fall? Does it still make you nervous to rip the "Do not remove" tag from your new mattress?

Comments

[Cathy Nelson]

Wonder if the judge is reading these levels as he decides whether or not to "dismiss" the case against the mother who set up the fake MySpace account to "bother" the ex best friend of her own 13yo--which led up to the girl's suicide. I read yesterday the case may be thrown out simply because the box was checked yes even though the mother had not technically read the terms of service.

No matter what context, be it intellectual property, terms of service, or cardinal rules of law, 80% will do the right thing, and 20% won't.

I know this literally has nothing to do with your original post but it does bring it to mind. Sorry for getting off topic.

[teacherninja]

I don't know. Out professor has us reading Carol Simpson's Copyright for schools but it seems very much with the "obedience and punishment" crowd. I'm hoping the fair use guidelines will open things up a bit. There's a whole copyright course being offered as an elective this summer so I'll see if I can get into that. Otherwise, I think I'm on the more lax side of comfort, but I don't know if that's a good thing or not. I definitely do NOT want to be the "copyright nazi" at my school.

[Doug Johnson]

Hi Cathy,

Kohlberg assumes that one has some degree of moral judgment. The woman in Missouri was, IMHO, a-moral.

All the best,

Doug

Hi Ninja,

I understand why people like Carol need to take the “safe harbor” stance on these issues, but sometimes I think they go too far. So much of this is a grey area, unresolved by legal rulings, and the advice is always, always, always to err on the side of the IP owner. I suppose since owners tend to be better financed and more litigious!

Doug

[Jeri Hurd]

Hi Doug;
I've been wrestling with these issues a great deal lately. As an English teacher, I practiced a sort of "copyright eminent domain" and took whatever I needed for the good of the whole. As a newbie librarian--trained by library school--I acted as a bribable copyright cop, uncomfortably willing to turn my head.

I am evolving into your idea of a copyright coach, but it's not easy. And the new best practices guidelines from CSM, while de-muddying the waters a bit, still leave it pretty murky. It seems to boil down to (in a mash of mixed metaphors), whether the use is transformative or not which, again, leaves it as a judgment call, as they're not very specific in their definition of tranformative. Nor are there any examples.

I'm not sure using music/images to add to a book review created on Animoto counts as transformative. Truly transformative works stem from that upper level of Bloom's, and it's difficult to move students there consistently.

Thank God for the creative commons!

[Doug Johnson]

Hi Jeri,

To me, the big difference between copy and counselor is that we advise rather than judge. We present what information and advice we have to our fellow professionals and students, but then accept that they themselves ultimately make the ethical choice.

I had not thought of it, but your idea that for something to be transformative needs to involve higher order thinking skills is a great test. I am stealing this idea ;-)

All the best and thank you,

Doug