Changing how we teach copyright Pt 3
Thursday, April 10, 2008 at 06:23AM Last Saturday I started writing a "a rational, ethical and legally-defensible way" of how educators should change their approach to both using and teaching about intellectual property, especially copyrighted work. I got side-tracked with some paradoxes. I continue in this post with the third of 4 posts about how we might go about doing this...
3. Be prepared to answer questions when the law seems to make little sense, when a law is inconsequential, when a law is widely ignored, or when breaking the law may serve a higher moral purpose.
It is illegal to wear a fake mustache that causes laughter in church in Alabama.
It is illegal to fish for whales on Sunday in Ohio.
Having sexual relations with a porcupine is illegal in Florida. (lawguru.com)
It is illegal to show a film for reward purposes in a school in the US.
Blue laws once restricted commercial and other activities on Sundays. They were so routinely ignored that the term came to mean a law that was on the books, but never followed or enforced. I often think about blue laws when I hear questions asked about whether something is legal regarding intellectual property.
Are there intellectual property laws that are on the books but are so routinely ignored that they have become meaningless. And when enforcing them, the librarian looks like Mayberry’s Barney Fife? Are there uses of intellectual property in which the benefit to society outweighs the rights of the property owner?
A few years ago, I went to our family computer one morning to find that the hard drive was full. My son had downloaded an illegal copy of one of the Lord of the Rings movies. I asked if did felt bad about depriving Peter Jackson, one of his heroes, of his payment for making the film. His reply was, “Dad, I paid to see the movie twice and I will buy the movie when it comes out in a regular version and when it comes out in a director’s cut version. I think I am “paying” Peter Jackson for his creative works. What harm does this digital version cause?”
Other common uses of copyrighted works that regularly interpreted as illegal, but are so routinely ignored as to be meaningless include:
- Showing movies in class for entertainment or reward without a public performance license.
- Playing a commercial radio station that plays popular music in a public venue, including classrooms and gymnasiums.
- Using copyrighted or trademarked items on school bulletin boards, locally produced study materials or on personal websites. (Yes, even Disney characters!)
- Making a diligent effort to contact a work’s owner with no response and then using the work.
- Converting 16mm films or videotapes that are not available for purchase into DVD to a newer format.
- Making copies of materials for archival purposes.
- Making copies of materials that are no longer in print.
- Making copies of copyrighted materials of online resources (that can be read online without cost) for classes.
- Downloading Flash videos, such as YouTube, onto a local hard drive.
- Converting analog materials (text, pictures, video, audio) to digital formats to be used with interactive whiteboard or slide show software for whole group instruction. Readers, add to this list!
The uses above have either no or minimal impact on a copyright holders’ profits. Overly strict enforcements of the letter of copyright laws will lead to creating scofflaws of not just students, but teachers, and make all copyright restrictions suspect.
We need not give every instance of intellectual property abuse equal weight and attention. When I was a little boy growing up on the prairie, I would on occasion steal an apple or watermelon from a neighbor. Had I been caught, most of the community would have seen the action as “mischievous” rather than criminal. Were a child today caught downloading an illegal song, would we consider this act, with an equal (or some would argue smaller) degree of financial loss to the property owner, as simply “mischievous?” Should we? Adults view online misbehaviors as more serious than they are simply because they themselves did not participate in them as children. In physical property laws, crimes are rated as misdemeanors or felonies based on the amount of material stolen.
It is interesting to note, according to Temple University’s Media Education Lab, that “There’s never been a lawsuit involving a media company and an educator over the rights to use media as part of the educational process.” Which again calls the question the seriousness of the “crime.” Do we turn a blind eye when we see students or staff committing obvious thefts of intellectual property? No, but we need not over-react either. SchoolTool Project Director Tom Hoffman in a blog comment says it well:
… there is a long list of things right now, like downloading a random YouTube video, that are probably legal, certainly ethical if they're legal, never enforced if they are illegal, and if they are enforced in many cases it is by a DMCA takedown notice, not a lawsuit. OTOH, there is a fairly short list of things, like file sharing current movies, that kids, by law at least, definitely shouldn't do, might get prosecuted for, and against which there is a clear (if not decisive) ethical and practical argument. Shouldn't we focus on the short list?
If there are no alternatives and the use of the material has educational value. On her blog, Pamela Burke writes:
If we librarians do not encourage the application of Fair Use in the classroom, we're in danger of loosing it. If your school blocks YouTube, but there is a video there that would be helpful for use in class that you can get no where else, is it so bad to download it at home simply so you can use it as part of the curriculum?
Burke’s comment introduces my final question – are there ever moral precedents that should supersede questionably legal practices.
There is a large and growing movement that believes current intellectual property law, especially copyright, works against the greater good of society. “Free culturists” argue that everyone in a society benefits when creative work is placed in the public domain where everyone is allowed to use and build upon it, that current copyright laws give the owner too much control and for too long a time. Building on the free software, open source software movement, this cult at its most extreme that “intellectual property” and “copyright” are meaningless terms. (Free culturists, I feel I am giving short shrift here to these ideas. If you have "must-reads" about free culture ideals, please share them with Blue Skunk readers.)
However, Lawrence Lessig, often seen as the movement’s founding father, writes in his book Free Culture:
The free culture that I defend in this book is a balance between anarchy and control. A free culture, like a free market, is filled with property. It is filled with the rules of property and contract that get enforced by the state. But just as a free marked is perverted if its property becomes feudal, so too can a free culture be queered by extremism in the property rights that define it. That is what I fear about our culture today. It is against that extremism that this book is written.
Hobbs, Jaszi, and Aufderheide wisely write: “Applying fair uyse reasoning is about reaching a level of comfort, not memorizing a specific set of rules.” Should this statement apply to all issues involving copyright and intellectual property?
And if so, how do we help our teachers and student establish an informed, personal “level of comfort?”
Temple University Media Education Lab “Ten Common Misunderstandings about Fair Use”
Reader Comments (9)
Here's a short reading list to get you started.
Doug, I've weighed in on this before, but I figured I have another word. Basically, I DON'T CARE about copyright. That's right, I said it and I'm glad. I figure that the last thing I'll do is be in a lawsuit concerning copyright. I may get a "cease and desist" letter for something I do or that my teachers do, but does Disney or even Wild Bill from Redmond REALLY want the kind of negative press attached to suing a tiny school district in the middle of nowhere? In this day and age of intimate and immediate connectivity, something like that would be all over the blogosphere in just a few hours. I'm sorry, no . . . actually, I'm not, but I can't see how BILLION dollar companies and BILLIONAIRES themselves can worry about what we're doing in schools. They should be thankful we're using their products instead of going open source, which I wish we'd do. So, until the letter comes, I've no intention of wasting my time and my teachers' time trying to explain an antiquated set of rules that I nor anyone else outside of the field of copyright law understands. Okay, that's my rant :)
OMG Please dont't tell anyone where he is from <smiles>
"There is a large and growing movement that believes current intellectual property law, especially copyright, works against the greater good of society."
I don't see any large movement stating that current trademark law works against the good of society. You're overgeneralizing here.
“Free culturists” argue that everyone in a society benefits when creative work is placed in the common domain [...]"
What is "the common domain"? I've never heard that before.
"Building on the free software, open source software movement, this cult at its most extreme that “intellectual property” and “copyright” are meaningless terms."
Yeah, that's weird. I can see why some would say that "intellectual property" is meaningless as, for the most part, it leads to overgeneralization but why would anyone state that "copyright" is a meaningless term?
Thanks, Tom. Just what I was looking for. I highly recommend them to all readers!
Doug
Hi Shannon,
I think many of us are frustrated with copyright laws. I am more of a "sensible middle" person myself, but I am sure there are many people who feel as you do. I hope you read the final installment of the copyright series on the Blue Skunk.
One thing that causes me concern is the popular view that it acceptable to steal from big companies but not from the small fry. Too often we forget that even big companies are made up of small stockholders and employees just trying to make a buck too. But, yeah, it's tough to build a lot of sympathy for some of these organizations.
All the best,
Doug
Cathy, you mean your home state, South Carolina?
I expect you to be personally responsible for all educators there ;-)
All the best,
Doug
Hi Peter,
I based my admitted generalization that the movement questioning IP law is growing on:
- the increased use of open source software (the ASUS Eee come with Linix, OpenOffice, etc.)
- the increased use of the Creative Commons licensing agreements on websites
- the "pop" status of Lawrence Lessig and his book _Free Culture_
Do you have evidence that this is not happening? Happy to hear it.
I did mean to write "public domain" not "common domain." I made the change. Sharp eye and thanks for pointing it out.
This is from the entry on Free Culture from Wikipedia:
"The movement objects to overly restrictive copyright laws, or completely reject the concepts of copyright and intellectual property, which many members of the movement also argue hinder creativity."
I should have additional sources, I admit. Something I will need to verify before submitting this for publication should I decide to do so. Thanks again.
Always a pleasure,
Doug
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