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Friday
Apr112008

Changing how we teach copyright Pt 4 and last

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 final of 4 posts about how we might go about doing this...

 
copyright.gif4. Teach copyright from the point of view of the producer, as well as the consumer:

Clowns to the left of me,
Jokers to the right, here I am,
Stuck in the middle with you. Stealers Wheel lyric

Few of us are comfortable at either extreme of copyright enforcement – playing the copyright Nazi or completely ignoring situations of questionable copyrighted materials use. Complicating the issue is that each of us is likely to arrive at his/her own personal level of fair use comfort, judgment of seriousness of misuse, and perspective of the morality of intellectual property use both personally and professionally.

And that's OK.  My long-standing philosophy is that education is all about teaching people to think rather than to believe. We also need to help individual students arrive at personal comfort levels when using protective creative works as well.

I would advance some practical ideas about the role of educators, especially library media specialists, in teaching and enforcing copyright compliance and other issues of intellectual property use:

  1. Enforcement of all laws and policies, including copyright,  falls on administrators, not teachers or librarians. Quite honestly, if a building principal chooses not to learn about copyright, about how materials are being used in his building, or not to enforce district policies, it is not a teacher or LMS’s job to make him. Administrators are the ones getting paid the big bucks. Let them earn'm.
  2. I will rat out my fellow teachers only under a very narrow set of circumstances. I suppose there might be a copyright infringement so egregious that I would bring it to my boss’s attention. It would need to be something that has a real chance of generating a lawsuit, though. I would put it writing, send it only once, and keep a CYA copy. I would be prepared to show a real example of another district suffering as a result of similar action. (Carol Simpson keeps a database of such things.
  3. I need not commit any acts I deem illegal. If a teacher asks me to make a copy of something and I feel it does not fit under fair use guidelines, I will politely say no and explain why. And then teach him/her how to do it.
  4. In inservices and communications, I will teach what can, not what can’t be done with IP. I will stress “fair use,” give open source options to software, and alert my staff to royalty free and public domain sources. Let’s change our identity from enforcer to enabler!  If someone asks me specifically whether a use is legal or illegal, I will respond: “It depends on your personal philosophy. If you can justify that the use meets fair use guidelines, is transformational, and sets a good example for your students, go for it! If you can't, don't"
  5. Any signs about fair use will be accompanied by a caveat. (such as the popular ones produced by Hall David):

modfairuse.jpg


In an LM_Net post, library media specialist Vicki Reutter wrote:

Young people eat up this “us against them” mentality and hardly realize it is only hurting their own. Now, I'm mostly thinking of budding artists and musicians, not the goofy Spielburg wanna -be's on You Tube. The economics are changing for selling music, no question. And it's not a bad thing. Who needs a big record contract? But, there is no discussion of ethics of “taking without paying” or “taking, changing and profiting.”

We can certainly get a student to bubble in the “right” answer on a test about copyright, we can refuse to accept student work that may include copyrighted media, and can say, “think hard about your actions, young man.” We should certainly deal with plagiarism. But I doubt any of those actions will stop the illegal downloading of materials once the child is out of sight.

Studies do suggest that teens are not a-moral, but uniformed.  From a KRC study conducted for Microsoft:

Awareness of the law impacts teen attitudes towards illegal downloading.  The more teenagers know about laws against illegal downloading, the more they will come to think it should be a punishable offense.  Likewise, teenagers unaware of the rules are more tolerant of illegal activities. Among teenagers who said they were familiar with the laws, more than eight in ten (82%) said illegal downloaders should be punished.  In contrast, slightly more than half (57%) of those unfamiliar with the laws said violators should be punished.

Yes, we have an role in teaching laws related to the use of intellectual property. But it doesn’t stop there.

Only when students begin think about copyright and other intellectual property guidelines from the point of view of the producer as well as the consumer, can they form mature attitudes and act in responsible ways when questions about these issues arise. And as an increasing number of students become “content creators” themselves, this should be an easier concept to help them grasp:

The Pew Internet & American Life Project has found that 64% of online teens ages 12-17 have participated in one or more among a wide range of content-creating activities on the internet, up from 57% of online teens in a similar survey at the end of 2004. (Teen Content Creators, 2007)

Students need to know what their rights as creators and IP owners are.  

Among the most serious misperceptions about copyright holders is that only big, faceless companies are impacted by  theft. A popular view that it acceptable to steal from big companies but not from the small fry. Too often students and adults forget that many large companies are made up of small stockholders and employees just trying to make a buck too. Publishing companies represent the interests of individual artists, writers and musicians.  Whose ranks they themselves may one day join.

Daniel Pink in A Whole New Mind lists empathy as one of the most important “conceptual age” skills needed by tomorrow’s workers. Developing empathy toward content creators who hope to profit by their work helps all of us place copyright into context and perspective.

This is why we need to allow use the use of copyrighted material in student work, but expect students to be able to articulate why they believe it constitutes legal use.

_________________________________


Thanks for your patience and comments over this past week as I tried to “think outloud,” exploring new ways to approach how we teach and enforce copyright in schools. This is a controversial, values-laden topic and still one I believe is full of contradictions, paradoxes and valid, if contradictory, view points.  And my own thinking is on-going and has been shaped by the comments left by Blue Skunk readers. Thank you.

I guess what I am saying is that if you don’t like what you’ve read here, check back tomorrow. I may have changed my mind!

Thursday
Apr102008

Changing how we teach copyright Pt 3

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...

copyright.gif3. 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

Tuesday
Apr082008

Changing how we teach copyright Pt 2

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 second of 3 or 4 ideas about how we might go about doing this...

copyright.gif2.  When there is doubt, err on the side of the user.

A Singapore educator once shared with me that Singaporeans tend to suffer from NUTS - the No U-Turn Syndrome and that Americans do not. When no signs are posted at an intersection, Singapore drivers assume U-turns are illegal; US drivers assume they are. He felt this “assume it is OK” attitude gave our country a competitive edge.  It really is better to ask forgiveness than permission.

Shouldn't an educator’s automatic assumption be, that unless it is specifically forbidden and legally established in case law, that the use of materials should be allowed? I believe it should.

A high profile example of moving to a forgiveness-based approach comes from Google’s Scan the Book project. In its attempt to put all the world’s books into a digital, searchable format, Google found that 15% of the world’s cataloged books are in the public domain and 10% are actively in print, but 75% of the worlds books are “in the dark” – neither being made available by publishers or in the public domain. Since few publishers have shown willingness to investigate the actual ownership on these materials, the Google Scan the Book project decided to scan first and then remove the digital copies if so requested when and if the owner appears. (Kelly, 2006)

Yes, current copyright law says that everything written in the US is automatically copyrighted (as of 1989) and material does not need to include a © symbol to be considered protected. Unfortunately the will of the owner of the work is always assumed to be that she/he has exclusive rights. With the advent of Creative Commons, an alternative means of describing creator’s level of control over a work, should “exclusive rights” simply be assumed anymore?  

Even when copyright or use warnings are implicitly stated, they often disregard uses that fall under Fair Use or Alternative Versions provisions. Even if a book contains the following standard warning:

"All rights reserved. No part of this book may be reproduced, transmitted, or stored in an information retrieval system in any form or by any means, graphic, electronic, or mechanical, including photocopying, taping, and recording, without prior written permission from the publisher."

I have a right as a researcher to do all the expressly forbidden things listed in the warning.  (See also the two motion picture warnings that begin last Saturday's blog entry.)

As far as I know, as a content creator or provider, I can write any sort of restriction I wish without it ever needing to be vetted by a court of law. YouTube’s Terms of Use read: “C. You agree not to access User Submissions (defined below) or YouTube Content through any technology or means other than the video playback pages of the Website itself, the YouTube Embeddable Player, or other explicitly authorized means YouTube may designate. Has there been a U.S. Court Case to determine whether YouTube has the right to make and enforce such a condition? If I place a "Terms of Use" on the Blue Skunk that the reader must be drinking gin and wearing a pink bathrobe to read the posts legally, could I take Peter Rock to court right now? Until something is proven illegal, assume it is legal.

Be aware that schools and other institutions may place restrictions on the use of copyrighted information that go beyond legal requirements. Our district’s board policy on copyright states: “All of the four conditions [of the Fair Use Doctrine] must be totally met to qualify a work for use or duplication under this clause.” The law itself only reads that these are “factors to consider.”

Finally, there is an inherent bias toward copyright owners when copyright “experts” offer advice about particular situations. A lawyer, a book author or columnist who answers question on copyright issues may be held liable for the advice they give -  that if proven wrong, may result in litigation, fines or a finding against the person who originated the question.  The common advice given becomes “assume the U-turn is illegal.” As one of my college days t-shirts once read, “Question authority!”

Places to look for “expertise” that have a more user-centric bias include:


Blue Skunk Readers, help me expand this list! (I feel like I've forgotten some big players in this!)

Place the onus of proof of wrong doing on the provider, not the proof of fair use by the user.

Assume the U-turn is legal.

Ask forgiveness, not permission.

Be subversive.