Paradox land

    

Second image from Eric Faden’s “A Fairy(y) Use Tale” at  Media Education Foundation <http://www.mediaed.org/>

I had started today's post meaning to suggest in a rational, ethical and legally-defensible way how educators should change their approach to both the use of and teaching about intellectual property. Instead, I've gotten caught up thinking about all the paradoxes and contradictions that the last couple of posts have forced me to consider. And regular readers all know how thinking makes my head hurt. Ouch!

Few subjects about which I blog tend to draw more praise, criticism and questions than the topics of intellectual property, copyright, and digital rights management. When a single post draws criticism from both Peter Rock who insists there is no such thing as "intellectual property" and Barbara Braxton who asks "even if the rules/laws don't make sense, or we don't agree with them, does that mean we still have the right to break them when it suits us?", I must be doing something right! Or terribly, terribly wrong.

These are areas where I feel less and less certainty that as a professional I have a firm understanding - or a defensible  philosophy. Increasingly, I feel beset by paradoxes of intellectual property:

• While intellectual property, especially in digital formats, becomes an increasingly important "wealth generator" throughout the world, the laws surrounding it are becoming less understandable, more complex, and less relevant, especially to this generation of re-mixers and content-sharers.
• While today’s students want to use others' digital works, often without regard to the legal protections they may carry, many of these students’ own creative efforts will be the source of their incomes and they will need a means of protecting their own work and want others to respect intellectual property laws.
• While protection of individual property rights is given legal precedence, many argue there is a moral precedent and there may be economic value to placing all intellectual works into the public domain as soon as possible.
• Prohibitions are ubiquitous on media, but the warnings disregard fair use and may not be legal. Case law related to the use of digital media is scarce. Technology changes faster than the legal system can keep up.
  
• While librarians are considered the copyright experts in their buildings, they too often become the copyright “cops” instead. The experts on whom practicing librarians reply give "safe" advice that tends to honor the rights of intellectual property owners, not consumers.
• Thoughtful teachers and librarians be intellectual property use role models by being:
  
• followers of the letter of the law who err on the side of the information producer
  
• or questioners of the legality and ethical value of current law and practices who err of the side of the information consumer
• While intellectual property shares many qualities of physical property, it also has unique properties that many of us still struggle to understand. A physical apple and copyright protected song from Apple both may sell for $.99. Your assignment: Compare and contrast the "unauthorized acquisition"  in financial, moral, and practical terms.
  

The teaching of copyright and other intellectual property issues is overdue for an overhaul in our schools. The mindset that “if we don’t know for sure, don’t do it” does not fit the needs of either students or their teachers. Changes I am thinking about recommending include:

1. Changing the focus of copyright instruction from what is forbidden to what is permitted. (Sneak preview, see Pamela Burke's post here and read “The Cost of Copyright Confusion for Media Literacy.”
   
2. When there is doubt, err on the side of the user. (Are we being "hyper-compliant"?)
   
3. Ask the higher ethical questions when the law seems to make little sense. (Look where it got Socrates. Well, yeah, there was that hemlock bit...)
   
4. Teach copyright from the point of view of the producer, as well as the consumer. (Does having others using your work without authorization or remuneration change your perception of intellectual property issues?)
   

Confused at a higher level? Then my work here is done.
 

Reaction to my last rant on copyright

The introduction my friend and colleage Gail Dickinson once gave me remains the one of which I am most proud:

Doug not only pokes holes in sacred cows but drags them into public places and commits indecent acts with them.  

Uh, the library media specialist's role in copyright teaching and enforcements seems to be one of those cows, as the reaction to last Tuesday's little rant shows. A couple very well written and thoughtful e-mails:

Hi Doug

I think that much of what you have said and posted makes sense from a teaching perspective, particularly when it applies to videos made by amateurs and posted to the World Wide Web for all to see for free anyway.  

But if we are to teach the teachers and students about the ethical use of other's stuff, regardless of its format, are we in a position to pick and choose when we will be ethical or not?  Is that not a little like saying stealing from a large chain store is okay because they have heaps of $$$ and the price of theft is built into the price of the goods, but don't do it from your local corner store?  Is it okay to show a movie because Warner Bros or Fox are multi-billion companies but don't photocopy a book I've written because I am such small fry?

Even if we are not the copyright police, do we not have a responsibility to be a role model?  Under copyright law in Australia, if I direct or knowingly allow another person (student or teacher) to breach copyright I can be prosecuted as well as that person.  If a supervisor directs me to breach copyright then I need to keep a written diary to show that I was directed to do so.  (Whether any prosecutions have taken place is another issue, but certainly we are told that the buck stops with the individual not our education authority if  we are taken to court.)  

Don't know where Jamie would stand if he knowingly directed people to breach copyright - how rigorously do copyright owners pursue breaches in the US?  I know some of the multi-nationals are really on to it because there are often cases on the news here where they have tried to close down small businesses because they have used "copyrighted" names.  Two cases - the first were two ladies actually called Thelma and Louise who tried to open a coffee shop called "Thelma and Louise", and another company who thought they owned the rights to the name ugg boots but found out that that is a
generic name that has been used throughout Australian and New Zealand for ever for a style of footwear.  It costs 000s to fight these companies in court but the multi-nationals take it to the end.  Even if they lose, they've put the little ones out of business because of the legal fees.

I don't know what the US arrangements are, but here our education authorities (in most cases state education departments) pay a per student copyright fee that allows Australian teachers quite a lot of freedom in what we can use and how, and we are expected to work within these boundaries.

So, even if the rules/laws don't make sense, or we don't agree with them, does that mean we still have the right to break them when it suits us?  Are we sending the right message to the kids?

Love a good debate ...

Barbara Braxton
Teacher Librarian
COOMA NSW 2630
AUSTRALIA

 and Steve Dembo left this comment:

I speed at times, I've downloaded songs (and other things), and I've downloaded YouTube videos. While I do agree with you for the most part, the trouble is that when we're in front of students, we're not just average people, we're role models.

Typically, role models are held to higher standards than the average person. And when a role model 'bends the law', those that look up to them aren't going to know where to draw the line.

What do you do when a student is caught downloading "Horton Hears a Who" from Bit Torrent? And what do you do when that same student says, "But Mr. Johnson said it was ok to download videos. He did it on YouTube."

It's a pretty fine line. What we do in a personal life is one thing, but as educators I think we need to be pretty careful of which side we walk on.

and a stern emoticon from Barbara Coomes, professor in Perth, Australia... 

Not good role modelling, Doug! Copyright is a major responsibility of the TL. :|

Strangely enough, "attaboys"  from Tom Hoffman and Stephen Downes probably gave me more concern than any vocalized disagreement. 

While rants tend to be more emotive and less rational than are indicative of good thinking, most do contain an element of truth. I do firmly believe it is healthy to take a hard look at one's sacred cows now and again. Doing so either reinforces their goodness or changes them so they make sense again - either way a healthy proposition.

I'm still thinking on this one...

Thanks to ALL who responded. 

Image source: www.homeeconomiser.com 

The subversive view of copyright

It was this posting on LM_Net about downloading YouTube videos to one's hard drive that triggers this post:

This has been the subject of a lot of discussion on the Australian list because, according to the Terms and Conditions of Use, you cannot do this without the express permission of the video owner.

This is from the Terms of Use website http://www.youtube.com/t/terms

"You may access User Submissions solely: for your information and personal use; as intended through the normal functionality of the YouTube Service; and for Streaming. "Streaming" means a contemporaneous digital transmission of an audiovisual work via the Internet from the YouTube Service to a user's device in such a manner that the data is intended for real-time viewing and not intended to be copied, stored, permanently downloaded, or redistributed by the user. Accessing User Videos for any purpose or in any manner other than Streaming is expressly prohibited."

This was brought to our notice here when one of our members noticed that Jamie McKenzie was advocating downloading clips in an article he had written, so she wrote to him and he changed what he had written!

I have obviously been reading too many comments from people like Tom Hoffman, Peter Rock and Stephen Downes since this was my reaction...

I say go ahead and download YouTube videos regardless of what the "terms" say. Here is why:

1. I sincerely doubt there is any case law existing that would indicate whether YouTube's statement holds any legal water. When such a condition exists, you should ask yourself if it is any harder to ask forgiveness than permission when making a decision that is questionable. If you are abiding by _most_ of the fair use indicators and it leads to a better educational experience, don't wait for permission. Just do it. (Jamie, don't be a wimp!)
2. We should stop wasting our time fussing about this petty ante stuff. Downloading a YouTube video has about the same degree of criminality as stealing a sugar packet from a restaurant or driving 2 miles over the speed limit. Yeah, technically it may not be legal - but who really cares except those folks who never left Kohlberg's Law and Order stage of moral development. How is a kid downloading a illegal song any different from us stealing an apple from a neighbor's tree when we were young? - other than the fact we were simply mischievous and today's kids are criminals!
   

I am growing more and more convinced that we are simply tying ourselves in knots worrying about what people shouldn't be doing - especially on petty matters. (Who exactly suffers if a movie is shown in school as a reward rather than in direct F2F instruction?) Perhaps we should approach copyright to teaching people what rights they do have, about being honest when we don't know if something is legal or illegal and erring on the side of the consumer, and about using the morality of a situation rather than the legality to make a judgment. Ask me, we are genuinely in danger of creating a bunch of scofflaws out of our kids and teachers. (Read a more erudite expression of this on Joyce Valenza's blog.)

OK, have at me. Strip me of my library epaulets. Drum me out of the league of copyright cops.

But I said it and feel better for it.