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Tri-Annual DMCA Rulemaking Process Underway—IP Caucus Member Participates

In June of 2012, Dr. Martine Courant Rife, a writing professor at Lansing Community College and an active member and former chair of the NCTE-CCCC’s IP Caucus, traveled to Washington D.C. to testify at the Digital Millennium Copyright Act (DMCA) tri-annual rulemaking hearings. Dr. Rife, who holds a PhD in Rhetoric and Writing with a concentration in intellectual property and technical communication, as well as a law degree from the University of Denver, also participated in the last round of hearings in 2009.

Other 2012 panel participants included Francesca Coppa, Associate Professor of English and Film Studies, Muhlenberg College; Tisha Turk, Associate Professor of English, University of Minnesota-Morris; Corynne McSherry, Intellectual Property Director, Electronic Frontier Foundation; Renee Hobbs, Professor and Founding Director of the Harrington School of Communication and Media at the University of Rhode Island, as well as many other educators and legal professionals. These educational stakeholder-witnesses were asking the Copyright Office to retain and expand exemptions to the DMCA issued in 2010 that under certain circumstances allow college professors to circumvent technology protections on DVDs in order to access movie clips for educational purposes. Also present at the hearings were corporate media stakeholders who offered counter-arguments to the educational community’s request for educational exemptions.

A formal transcript of testimony given at these hearings eventually will be made available by the Copyright Office, but for the moment summaries and partial transcriptions can be accessed at a blog maintained by Rebecca Tushnet, a Law Professor at Georgetown University Law Center and a hearing participant. The 2010 exemptions that are at issue in this rulemaking process can be reviewed here: These existing educational exemptions are set to expire once the Register of Copyright’s final recommendations are issued.

The Register of Copyright’s formal recommendations for possible educational exemptions to the DMCA’s anti-circumvention provisions should be out by the end of this year. Currently, an extended question and answer period is taking place in order to further inform the Register of Copyright in her decision making process. Please watch the Inbox postings for further information on this issue.

For information in general on the DMCA hearings, or to review materials submitted in response to a request by the Copyright Office for written comments, please visit

For earlier coverage of the DMCA and its impact on educators and students, see the following IP Reports:

Part One: The New DMCA Exemption for College Teachers and Students 

Part Two: What Teachers Can Learn about Fair Use in Remix Writing from the US Copyright Office

See also the article “DMCA Developments Relevant to Educators” in Top Intellectual Property Developments of 2010.

This column is sponsored by the Intellectual Property Committee of the CCCC and the CCCC-Intellectual Property Caucus. The IP Caucus maintains a mailing list. If you would like to receive notices of programs sponsored by the Caucus or of opportunities to submit articles either to this column or to the annual report on intellectual property issues, please contact

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IP Caucus Roundtable: Students’ Rights to Their Writing and to the Writing of Others

Michael J. Klein, Ph.D.
School of Writing, Rhetoric and Technical Communication
James Madison University

The Intellectual Property Caucus meets annually at the CCCC convention for a Wednesday workshop that features a series of roundtables intended to provide educators with a forum in which to discuss intellectual property issues as they affect both instructors and students. Last April, the caucus included one such roundtable on the relationship between students’ rights to their own writing and to the writing of others. Discussion amongst the participants focused on two separate yet related issues.

First, roundtable participants discussed the number of new technologies available to faculty that help them discover whether students have turned in work that has material from sources that are not cited in the work. As materials found on the Internet, and especially the World Wide Web, have become increasingly pervasive as source material for students, some publishers have responded by implementing more and more robust (and complex) technologies to identify work coming from such sources. These so-called plagiarism detection services (PDSs) check uploaded student submissions against existing texts within a database. In order for the instructors to make use of these services, students and faculty must allow the newly submitted documents to become part of this ever-growing database of materials. The rationale behind this requirement is that as faculty check more papers, the database they are checked against will continue to grow, which will make it easier to detect future misuse of sources.

The CCCC-IP caucus has already formulated a position statement on the use of these PDSs (this is not an official CCCC position statement). Given that their use complicates the relationship between instructor and student, this position statement addresses issues that educators need to consider before their institutions adopt such services. This brings us to the second, but no less important, matter discussed by the roundtable participants. In creating a potentially adversarial relationship between students who submit work and the instructors who require the work to be checked, the language describing the necessity of such checks perpetuates the notion that students are “guilty” until they prove themselves “innocent.” Students cheat, hoping not to get “caught”; faculty must then “police” the students, seeking to “detect” when students have “committed” plagiarism. Other examples of such adversarial language are easily evident upon continued inspection of descriptions of such services.

As language instructors, we know the way language shapes perceptions, and in some cases, reality. In using terms like “cheat,” “caught,” “get away with,” etc., we have created circumstances in which students are only likely to reduce cheating due to fear of being caught, not through an understanding of why plagiarism is wrong. The effects of this Panopticon-like fishbowl that PDSs providers (and in some cases faculty) have created exacerbate the problem. Thus, the “war” (irony noted) on plagiarism is futile; we may have less plagiarism, but the students still lack an understanding of why plagiarism is wrong. Punishing those who plagiarize might stop some, but it might also encourage others to try harder to avoid detection.

The roundtable participants realized the irony that, as new technologies simplify the process of taking text or images from one medium or genre and relocating them in another, this ease of research also makes it harder for students to discern between valid and invalid utilization of sources—between what is fair use and what belongs to others. People assume that if they can access something, then they can use it freely, which may date back to the precept that possession is nine-tenths of the law. But this assumption is hardly true in the digital age when copies as good as the originals can be produced with minimal effort.

The participants of the roundtable came away with two action items for future roundtables. First, we need to discuss how to respond when the use of content management software or plagiarism detection software is compulsory. Faculty can use PDSs in a positive way by having the students check their own work and then discuss the results in a non–threatening environment, one in which grades and finger-pointing are absent. In this way, faculty and students work collaboratively to discuss the ways plagiarism may occur as well as opening up the discussion to include the reason why plagiarism is not accepted in academic (nor many other) environments.

As for the second action item, the participants decided to develop a student-oriented plagiarism policy that is responsive to new media technology. This process will include roundtable discussions on this topic at future CCCC meetings. Such a policy will be challenging to craft: “what would it look like” and “who would buy into it” are two questions we will need to grapple with. But the participants recognized that a student-centered plagiarism statement must begin with a level playing field, one in which faculty members do not police their students and students do not attempt to get away with cheating. Such a policy would go a long way toward making teaching more about engagement with materials and less about “gotcha” moments.

This column is sponsored by the Intellectual Property Committee of the CCCC and the CCCC-Intellectual Property Caucus. The IP Caucus maintains a mailing list. If you would like to receive notices of programs sponsored by the Caucus or of opportunities to submit articles to either this column or to an annual report on intellectual property issues, please contact


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YouTube—and Educators—Win!

Earlier this year, YouTube celebrated its 5th birthday, and as seemingly belated birthday “gifts,” courts in the United States and Spain ruled in favor of YouTube in two widely watched copyright infringement cases. On June 23, 2010, the U.S. District Court for the Southern District of New York ruled in Viacom. v. YouTube  that YouTube, as an online service provider, falls under the Digital Millennium Copyright Act’s (DMCA) “safe harbor” protection—and is thereby not responsible for policing copyright infringement on its site. The ruling claimed that instead it is the responsibility of the copyright owners to watch for infringed material and notify YouTube with take down notices, with which the court points out YouTube has quickly complied (Baum and Copland). Similarly, in September, a Spanish court ruled in a case brought by an Italian-based media corporation that “YouTube was not liable as long as it removed copyrighted material when notified by the rights holder” (Pfanner). In both cases, the media conglomerates quickly announced plans to appeal, but clearly it was a good season for YouTube.

While neither case dealt directly with educational uses of YouTube, they impact its availability in the classroom. For those of us who teach away from the stricture of firewalls that bar YouTube from many elementary and secondary classrooms, and who choose to use YouTube in our classes, such rulings serve to protect that resource’s ongoing availability. However, some may ask, why use YouTube in its ongoing state of flux—with its potential for videos here today and gone tomorrow in response to copyright holders’ DMCA sanctioned “take down notices.” Furthermore, there are arguments to be waged against what media professor, Alexandra Juhasz, refers to as YouTube’s “interchangeable, bite-sized, formulaic videos referring to either popular culture or personal pain/pleasure” (“Teaching on YouTube”). Nevertheless, or precisely because of YouTube’s reflective and contributory relationship with popular culture, it provides a rich arcade of videos that take learning to the students and their Web 2.0 world. More than simply supplementing a class with material in a mode popular with students, integrating YouTube videos in a class can also serve to develop students’ critical visual/media literacy skills—critical both in terms of developing analytical thinking and vital in this visually-drenched culture.

Such reasons are some of what prompted Pitzer College professor, Alexandra Juhasz, in Fall 2007 to teach a course solely about and on YouTube, aptly called “Learning from YouTube.” Although Juhasz notes that she “had been studiously ignoring [YouTube] . . . because every time I went there, I was seriously underwhelmed by what I saw” (“Teaching on YouTube”), she decided to create a “‘student-led’ course . . .  to primarily consider how web 2.0 (in this case, specifically YouTube) is radically altering the conditions of learning (what, where, when, how we have access to information)” (“Teaching on YouTube”).  Juhasz has critiqued this experience in blogs, interviews, conference presentations, and in an upcoming “video-book” to be available at no charge from MIT Press in the winter of 2010 (“On the Online Publishing”), but several of her observations in particular touch on the issue of YouTube and intellectual property.

In the US case, the court ruled that YouTube was an online service provider and as such was not responsible for its content. While some legal responses bemoaned the court’s attack on the DMCA, claiming that “the DMCA was never intended to allow service providers to exploit the statue’s safe harbors by designing an entire business model based on improperly profiting from copyrighted content” (Andrews), this is seemingly good news to those of us who use YouTube videos to supplement our courses.

However, for those who use YouTube to deliver course material or as a publication outlet for student work, it might not be time to celebrate. As amateur, “small-time copyright owners,” it isn’t feasible that we would be able to police the use of our videos (DeLong); however, for most of us—our students and ourselves—we are attracted to YouTube as a production and publication venue precisely because our work has the potential to reach a wide audience. In May 2010, YouTube began reporting that two billion videos are watched a day (“YouTube Fact Sheet”), up from one billion videos in October 2009 (“YouTube Beats Prime Time TV on 5th Birthday,” Network World). Of course for that potential exposure, there is a price. For example, Juhasz observed that as the work of a critiquing classroom moved to the open space of YouTube, where “anyone and everyone can see and also participate, . . . students were routinely judged by critical YouTube viewers who we would never see or know . . . [and that we] could not insure were as committed and attentive as were we” (“Teaching on YouTube”).  The thoughtful critiques of the classroom (or at least the ideal classroom) are not a given on YouTube, but one might argue that there’s much to be learned about critique itself from inside the fishbowl.

Despite YouTube’s recent legal victories, it is still important that we reflect on the copyright issues posed there. While we may forfeit some protections and stability there, for most of the millions of YouTube contributors, the price is worth it. And, while YouTube may not get to keep its birthday present from the U.S. District Court, given the number of copyright holders that have supported Viacom in its appeal, the news is still good for us as teachers and scholars who use YouTube in our classes to extend and to exemplify our lessons—and to bring the “real world”—our students’ world—into the classroom.

Submitted by:
Billie J. Jones, Assistant Professor
Director of First Year Writing
The School of Writing, Rhetoric, and Technical Communication
James Madison University

Works Cited

Andrews, Cory. “Viacom v. YouTube: A Setback for Intellectual Property Rights.” 24 Jun. 2010. Web. 9 Nov. 2010.

Baum, Andrew and David Copland. “United States” YouTube Winds Safe Harbor in Viacom Copyright Suit.” 29 Jun. 2010. Web. 9 Nov. 2010.

DeLong, James. “YouTube Gets the Power of Eminent Domain.” 26 Jun. 2010. Web. 9 Nov. 2010.

Ionescu, Daniel. “YouTube Beats Prime Time TV on 5th Birthday.” Network World 17 May 2010. Web. 9 Nov. 2010.]

Juhasz, Alexandra. “On the Online Publishing and Re-Purposing of Learning from YouTube.” Enculturation: A Journal of Rhetoric, Writing, and Culture 8 (2010). Web. 9 Nov. 2010.

—. “Teaching on YouTube.” Open Culture 22 Apr. 2008. Web. 9 Nov. 2010.

Pfanner, Eric. “YouTube Can’t Be Liable on Copyright, Spain Rules.” The New York Times 23 Sept. 2010. Web. 9 Nov. 2010.

YouTube. “YouTube Fact Sheet.” Web. 9 Nov. 2010.

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New Copyright “Combat” Regulations For Colleges and Universities Go Into Effect July 1

New federal regulations on copyright enforcement for colleges and universities are effective July 1, 2010. These new regulations, released by the Department of Education (DOE) late last year, focus on the copyright “combat” requirements of the 2008 Higher Education Opportunity Act (HEOA). To read the act itself as well as review the rulemaking process, see To read the DOE regulations and accompanying deliberations, see the October 29, 2009 Federal Register (FR)

The 2008 enacted HEOA contains provisions focusing on illegal filesharing on college and university networks, also known as the “unauthorized distribution of copyrighted material” (7 things, 2010, p.1, While some colleges may already have measures to monitor and control possible illegal filesharing activities, the new DOE regulations specifically require documentation showing college procedures or efforts. As Educause points out, the new regulations and the HEOA do not change existing copyright law. Instead, they create a clear set of responsibilities specifically for institutions of higher education. The new regulations set forth basic requirements institutions must meet if they wish to retain their Title IV funds. “Title IV funds” generally include the whole range of federal student financial aid such as Pell grants, work study, Stafford, Perkins, Parent-plus loans, and so on. Obviously, since the copyright enforcement requirements are tied to federal student aid, we can expect to see colleges and universities comply with the new regulations by the deadline of July 1, 2010. However, as time passes we might watch the development of policies and procedures at our respective colleges, and of course, look for spaces where we might make contributions as teachers and researchers concerned with writing, learning, and our students’ abilities to access the resources and materials they need to be successful.

The regulations require that institutions of higher education share with students their “institutional policies and sanctions related to copyright infringement” (FR p. 55903). To be more specific:

This information must (1) explicitly inform enrolled and prospective students that unauthorized distribution of copyrighted material, including peer-to-peer file sharing, may subject a student to civil and criminal liabilities; (2) include a summary of the penalties for violation of Federal copyright laws; and (3) delineate the institution’s policies with respect to unauthorized peer-to-peer file sharing, including disciplinary actions that are taken against students who engage in illegal downloading or unauthorized distribution of copyrighted materials using the institution’s information technology system. (FR, p. 55926)

The information-providing requirement appears relatively easy to meet. It requires students receive information telling them that the unauthorized distribution of copyrighted materials is illegal, and if they engage in such behavior they could be subject to civil and criminal penalties. This requirement could be met in many ways, but the “warning” that appears at the beginning of most DVDs contains boilerplate language that might be revised or adapted and delivered by colleges and universities to all students in some form (student handbook or digital communication). The penalties for violating copyright law must also be provided to students, but since Title 17, United States Code, commonly referred to as U.S. copyright law, already sets forth the penalties for violating the law, these penalties have been summarized by the DOE in a “standardized version” and will appear in the Federal Student Aid Handbook by the July deadline (7 things, p. 1). The regulations also state that colleges and universities must have their own clear policies and procedures on what they will do if students, using institutional networks, violate copyright law by engaging in the unauthorized distribution of protected material.

Another new requirement is that institutions must have “written plans to effectively combat unauthorized distribution of copyrighted material” (FR, p. 55903). These written plans must have actually been implemented, and, in addition to the requirements to educate students and have an active combat plan, institutions must “offer alternatives to illegal downloading or peer-to-peer distribution of intellectual property” (FR, p. 55903). Part of the requirement that institutions have implemented, written plans to combat infringement, states that such institutions “must include the use of one or more technology-based deterrents” (p. 55910). Although, “no particular technology measures are favored or required for inclusion in an institution’s plans” (p. 55926).

As far as offering legal alternatives, the regulations specifically state that the mere availability or existence of legal alternatives on its own does not constitute offering alternatives as anticipated in the new requirements. Instead, “an institution must periodically review the legal alternatives and make available the results of the review to its students through a Web site or other means” (FR, p. 55910). And so, the DOE is expecting institutions to “be active, rather than passive” to the “extent practicable’’ (p. 55910) in providing students legal alternatives to illegal downloading. Also, associations and commercial entities might develop “up-to-date lists of legal alternatives to illegal downloading” that institutions can reference for “compliance with this provision” in the event they decide not to create their own resource (p. 55910). An example of such a resource is currently offered by Educause (Please see

Educause has taken the position that the regulations will be easy to meet for most colleges and universities, and that although the new regulations “set a higher bar for compliance than copyright law does,” colleges and universities “have always taken seriously their responsibility to educate students about intellectual property laws and the consequences of violation” (7 things, p. 2). Certainly, in composition studies over a decade ago, scholars such as TyAnna Herrington, Jeff Galin, John Logie, Jim Porter, Janice Walker, and even the CCCC Caucus on Intellectual Property, urged us as writing teachers to help our students gain knowledge of/at the place where copyright and writing intersect.

Our role as writing teachers and researchers might be to follow how the implementation of these new regulations unfold, and seek ways that we can contribute to assure that a “policing” environment does not arise in contrast to an educational learning environment. Of course, the regulations will be open for review and revision as they are implemented, and so some writing teachers might wish to become involved in this process. But presently, Educause rightly argues that since a long rulemaking process has taken place prior to the issuing of the final regulations, these new rules “represent the combined efforts of the higher education community and entertainment industries” (p. 2). The upside to these new regulations is that they require institutional-level support for the copyright education of students, and they provide clear delineation and procedures on what institutions can do to reduce their own liability. A really good resource to consult for further information is: Another great resource to further explore copyright’s intersection with teaching is Traci Gardner’s June 15, 2010 Inbox blog post:

Submitted by:
Martine Courant Rife, JD, PhD
Professor of Writing, Junior Chair CCCC IP Caucus
Lansing Community College
Lansing, Michigan, USA 

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“Stake Your Claim: What’s at Stake in the Ownership of Lesson Plans?”


By Billie J. Jones, Assistant Professor
The School of Writing, Rhetoric, and Technical Communication
James Madison University

At issue
Universities have long known the value of their faculty’s intellectual property, and as a result most outline in detail contractual claim(s) to that intellectual property under the concept of “work made for hire,” particularly that which has been created with substantial use of university resources. Now, as K-12 teachers are beginning to sell their lesson plans and other teaching materials, their districts are coming to realize the value of those materials, and some districts are going to court to lay claim to the proceeds. While the discussion about teachers selling their “lesson plans,” prompted most recently by a November 2009 New York Times article, has been spirited, many of the points made are only tangentially related to the core legal issue, which is whether lesson plans belong to the teachers who created them or the school districts for whom those teachers work.

“The Article” and the subsequent discussion
The New York Times, November 15, 2009, widely reprinted article, “Selling Lessons Online Raises Cash and Questions,” by Winnie Hu, brought widespread public attention to the issue of teachers selling lesson plans (and other teaching materials.) According to the article, sales at online “stores” like We Are Teachers and Teachers Pay Teachers are big business, claiming over 200,000 registered users and nearly one half million dollars in sales during 2008 for Teachers Pay Teachers (TPT) alone. The article goes on to mention individual teachers’ earnings, including TPT’s “top seller, a high school English teacher in California, [who] has made $36,000 in sales” (Hu 2). While this gets at the heart of how much is at stake, in terms of both money and teachers selling rather than sharing their work, it has little to do with the legal question of intellectual property.

Although citing both “legal” and “philosophical” questions, the New York Times article casts the issue as primarily a financial one—one in which teachers are presumably making lots of money—rather than presenting it as an issue dealing with the intricacies of copyright law. At several points the article returns to not only how much money some teachers have made but also how these entrepreneurial teachers spend their proceeds: including in addition to purchasing ”book and  classroom supplies, . . . dinners out, mortgage payments, credit card bills, vacation travel, and even home renovations” (Hu). Blogger Lindsay Robertson likens this focus to the way that convicted financial swindler Bernard Madoff’s extravagances have been detailed by the media (“The Times Asks”). If selling lesson plans represents a copyright violation, then the use of proceeds shouldn’t matter—illegal is illegal. However, neither should it matter if lesson plans are the intellectual property of the teachers because the proceeds, like the lesson plans, belong to the teacher to do with as he or she pleases.

In some cases, the courts have ruled in favor of school districts. The 2004 ruling from a federal appellate court in New York held that “‘tests, quizzes, homework problems, and other teaching materials’ were works made for hire owned by the district and that the ‘academic tradition’ of granting authors ownership of their own scholarly work cannot be applied to materials not explicitly intended for publication” (Walker). Consequently with this case in mind, in response to The New York Times article, the National Education Association (NEA), citing legal counsel from their office of General Counsel, wisely warns, “So if you want to sell your lesson plans online, make sure you actually own them” (Walker).

Bloggers Speak
While the question is a legal one: whether lesson plans are the intellectual property of the teacher who created them or they belong to the district as part of “work made for hire,” some of the article reprints and many of the resulting blog discussions ask the question, “Should teachers sell their lesson plans.” The reasons for using other teachers’ lesson plans are readily apparent: these are “class-tested lessons” (Hu), which prevent teachers from having to reinvent the wheel (Jacobs); and at times can serve to fill in knowledge gaps. Some educators will argue for creating one’s own lesson plans as an important intellectual enterprise; however, for many online discussion participants, both in and outside education, it seems only fair that teachers, who are frequently presumed to be underpaid, be able to sell what is believed to be their own intellectual property.

Other seemingly sensible considerations, while not necessarily germane to the legal question, are competing claims that selling lesson plans either serves to further professionalize teaching by placing monetary value on teachers’ lesson plans, or that it serves to cheapen the profession, and put at risk a “culture of sharing” (Wojcecki) among teachers. Citing New York University professor, Joseph McDonald, the New York Times article seems to side with the “cheapening” position by writing “online selling cheapens what teachers do and undermines efforts to build sites where educators freely exchange ideas and lesson plans” (Hu). McDonald continues, “‘Teachers swapping ideas with one another, that’s a great thing, . . . [b]ut somebody asking 75 minutes for a word puzzle reduces the power of the learning community and is ultimately destructive to the profession’” (Hu). In an interesting twist, one blogger, Mike Masnick, implies that by teachers seeing value in “selling” lesson plans they might see more value in sharing them freely online. Masnick writes, “In doing that, you can get better feedback and open a nice discussion among other teachers to share what they all have learned and create a better overall lesson plan that helps everyone out (especially the students).”

In short, while bloggers are quite opinionated on the ethics of selling lesson plans, few really deal with the legal question at the crux of this issue.

Possible Solutions
“NEA believes that staff should own the copyright to the materials they created for use in the classroom and supports amending the Copyright Act of 1976 to recognize a ‘teachers exemption’ to the ‘works made for hire’ doctrine” (Walker). While working to revise the Copyright Act of 1976 is a good idea, a more immediate solution would be to work through the K-12 districts’ collective bargaining agents to know the districts’ position: if the teacher’s district has an articulated IP agreement, whether it seems “fair” or not, that is the “law.” If the district does not have an IP agreement, according to the Copyright Law of 1976, a teacher selling lesson plans might be met with legal action. Here is probably the best advice, which comes from a blogging teacher, “Work within the system and work to revise the Copyright Law of 1976.”

As with so many other product/processes fostered by, or flourishing, in the digital age, some districts (and teachers) have been caught off guard by the opportunity for sharing—and selling—teaching materials. Teachers have likely presumed that their lesson plans were theirs, and districts likely have not bothered to prove otherwise—until money became involved. However, as teachers have begun to demonstrate that there is monetary value in their lesson plans, some districts have suddenly become more interested in the potential proceeds. Quoting deputy director of the New York State Council of School Superintendents, Robert N. Lowry, the New York Times article claims that it is a resource issue for school districts: “‘To the extent that school district resources are used, then I think it’s fair to ask whether the district should share in the proceeds’” (Hu). Because school districts are interested, teachers need to become proactive in pushing to establish clear intellectual property agreements based on the academic tradition enjoyed by many college and university faculty. And for those of us who may not work in K-12 districts but have ties to them through English Education programs, National Writing Project site work, and other cooperative relationships between K-12 and post-secondary faculty we should support them in their efforts.

Works Cited

  • Hu, Winnie. “Selling Lessons Online Raises Cash and Questions.” New York Times 15  Nov. 2009. Web. 10 Mar. 2010
  • Jacobs, Joanne. “Teachers Sell Lesson Plans.” Free Thinking and Linking on Education by Joanne Jacobs. 15 Nov. 2009. Web. 10 Mar. 2010.
  • Masnick, Mike. “Another Battle: Can Teachers Sell Lesson Plans.” TechDirt. 15 Dec. 2009. Web. 10 Mar. 2010.
  • “The Times Asks: Should Teachers Sell Lesson Plans?” 14 Nov. 2009. Web. 10 Mar. 2010.
  • The United States Copyright Office. “Copyright Basics.” Web. 10 Mar. 2010.
  • Walker, Tim. “Who Owns Your Work? Probably Not You.” NEA National Education
    . Web. 10 Mar. 2010.
  • Wojcicki, Esther. “Should Teachers Be Selling Lesson Plans?” Huffington Post, 19 Nov. 2009. Web. 10 Mar. 2010.


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The Times, They Are Remixin’: Indaba Music, Creative Commons, and the Digital Collaboration Frontier

So, here’s the deal. The rules of this game are actually up to you. This is not a world made up of passive consumers anymore. That era is over. This world is made up of collaborators. We can create and share. We can change laws and act.

Brett Gaylor,  RiP! A Remix Manifesto

In this year’s “Greetings from the Program Chair,” Gwendolyn Pough quoted Brett Gaylor to open the 61st Annual Conference on College Composition and Communication (CCCC), the apt theme of which is “The Remix: Revisit, Rethink, Revise, Renew.”  Pough’s choice is a brilliantly salient one: this single quote represents the promise of the new millennium and the project that lies ahead, as we navigate these first few months of the new decade.  And the theme of this year’s conference urges us to act — to revisit, rethink, revise, and renew our understanding of “remix” – so that’s where this update will begin (and end).


In 2001, Creative Commons (CC) was founded with support from Duke University Law School’s Center for the Public Domain and with the solid leadership of its founding board members. One of its most outspoken founders is Lawrence Lessig, Professor of Law at Stanford University, founder of its Center for Internet and Society, and commons defender extraordinaire.  Creative Commons is a nonprofit organization that “works to increase the amount of creativity (cultural, educational, and scientific) in ‘the commons’ – the body of work that is available to the public for free and legal sharing, use, repurposing, and remixing.”   CC does its vital work, in part by offering legal alternatives to the current “one-size fits all” copyright.  Content creators, from individuals to corporations, can elect a “some rights reserved” copyright (allowing for a wider range of content use, while still protecting copyright) or a “no rights reserved” copyright (which allows content to be used freely, without the constraints of any copyright protection).  Since its inception, approximately 130 million works have been licensed and ported to over 50 international jurisdictions.1  In fact, Brett Gaylor licensed his collaborative website “Open Source Cinema” under a CC license; this website was then created to produce the documentary film RiP! A Remix Manifesto.  The film was created over a period of six years using the work of hundreds of people who contributed to the Open Source Cinema website.  This collaboration resulted in what Gaylor would call “the world’s first open source documentary,” a documentary that would eventually inspire Gwendolyn Pough to quote from it to open this year’s CCCCs.   And a documentary which would feature an appearance by Lawrence Lessig, one of the founders of Creative Commons, under which license the Open Source Cinema website was made a reality.2


Though Lessig stepped down as CEO of CC in 2008, he has remained a forthright voice for copyright reform.  His most recent book, Remix: Making Art and Commerce Thrive in the Hybrid Economy (2008) will, like his other books, be CC licensed and made available to the public for free.  But, unlike his launching of the other books, Lessig was invited to be a guest on the January 8, 2009 Colbert Report and (re)mix it up with the feisty Colbert who, appropriately, called the whole remix idea  “artistic socialism.”  During the approximately six minute debate, Colbert stopped to explicitly issue a challenge to the audience:

Nobody should take my work and do anything with it that is not approved! Never ever never ever take anything of mine and remix it! For instance, I will be very angry and possibly litigious if anyone out there takes this interview right here and remixes it with some great dance beat. And it starts showing up in clubs across America.3

What followed, of course, was brilliantly (and hilariously) inevitable.


On his January 21, 2009 show, Colbert issued a new warning: to those “DJ Jazzy Jerks” who, within 24 hours of the Lessig appearance, had flooded the internet with remixes of the interview “appallingly set to the very dance beats [Colbert] had clearly prohibited.”  He then offered his own retort in the form of a music video (that remixed himself) and followed it up with another challenge: “Let me be very clear.  Stephen does not — not — want you to take his interview with Lawrence Lessig and remix it with a pumping k-hole groove.”4

But the remixing was already in full force.  After the Lessig interview, the audio from the show was posted in a public session on, where more than 150 collaborators created over 50 remixes of the show.  As was the plan, Colbert’s second challenge did not stay the tide of remixes; the Indaba community persisted until Colbert “was forced to recognize the power of the remixing community.”5  On February 4, 2009, Indaba co-founder Daniel Zaccagnino was the guest on the Colbert Report.6  Daniel, and Indaba’s co-founder Matthew Siegel, wrote of the experience in “Commoner Letter #5” (letters from users/supporters of CC): “it was great fun and a wonderful example of how everyone can benefit from being open with their content – from Colbert generating an incredible viral marketing campaign, to Indaba getting exposure, to a few select musicians who had their music played on national TV.”7  In short, this is a wonderful example of remix.  Indaba music’s remix presence also illustrates what Lawrence Lessig means by the term “hybrid economy”:  an economy where “commercial entities leverage value from sharing economies.”  “That future.” Lessig asserts, “will benefit both commerce and community. If the lawyers could get out of the way, it could be a future we could celebrate.”8


Indaba is a Zulu word that celebrates “the spirit of collaboration and community…a gathering or forum for sharing ideas” concepts that drive the mission of Indaba Music.9  The co-founders, Dan and Matt, sowed the seeds for this project in college, starting it first as a nonprofit student record label.  Currently, Indaba Music is a community of over 350,000 musicians from 185 countries who create music together in online recording sessions, using Indaba’s free Java-based mixing platform or their own audio software.  These online collaborative projects – from the individual tracks to the final song they create – can be licensed under a CC license so that musicians can specify control over the use of their tracks in the larger collaborative work.  The site regularly runs collaborative contests which allow the Indaba community to “remix and re-imagine” the work of current artists.  Last year, Indaba music members competed to remix the entire Marcy Playground album Leaving Wonderland…In a Fit of Rage.  “All of the remixes are CC licensed and winners will actually get royalties on the sale of a remix CD that will hit the airwaves early next year.”10  And did a story on an even more high profile Indaba remix contest: one “where anyone, even beginners, [got to] remix tracks by a wide-selection of high profile artists…heavy-hitters like Kanye West, David Byrne, Chuck D, RZA, The Cool Kids, Ol’Dirty Bastard, Tom Waits, DJ AM, KRS-One, Ghostface Killah, Method Man, Lykke Si, Santogold, George Clinton, Scarface, and M.I.A.  Working so closely with all of these artists’ voices and beats would normally get you sued.  Instead you could net a thousand dollars and a new career as a remix artist.”11

The Remix (a Reprise)

So, here’s the deal. The rules of this game are actually up to you. This is not a world made up of passive consumers anymore. That era is over. This world is made up of collaborators. We can create and share. We can change laws and act.

Brett Gaylor,  RiP! A Remix Manifesto

We may not be the next Lawrence Lessig, Brett Gaylor, Dan Zaccagnino, or Matt Siegel.  We may never be invited to appear on the Colbert Report.  We may never be the next DJ Girl Talk.   But we can create and shareWe can change laws and act.  And we can participate in creating the rules that allow these kinds of exciting remixes to happen.

Get Involved with CCCC-IP


Support CC

Submitted by Traci Zimmerman – Associate Professor – The School of Writing, Rhetoric, and Technical Communication
James Madison University
Junior Chair; CCCC-IP Caucus




Intellectual Property Reports Main Page


Sample Interviews for the Women’s Lives in the Profession Project

Excerpt of a March 8, 2010 video interview with Gwen Pough, CCCC Officer/2010 Program Chair and Associate Professor of Writing, Rhetoric, and Women’s and Gender Studies.  Interviewed by Eileen Schell, Chair of the CCCC Committee on the Status of Women in the Profession and Chair and Director of the Writing Program at Syracuse University, and Collette Caton, Doctoral Student in the Composition and Cultural Rhetoric Doctoral Program at Syracuse University.

Kristin Bivens Self-Interview (Word Document)

Kristin Bivens joined the Committee on the Status of Women in the Profession in 2007.  She is currently a tenure-track instructor at Harold Washington College, one of the City Colleges of Chicago.  Currently, her research interests include: contrapower harassment at two-year institutions and post-Katrina New Orleans (and Gulf Coast).

Start-up Kit for Women’s Lives in the Profession Project

Start-up Kit for Women’s Lives in the Profession Project (Word Document)

The “Women’s Lives in the Profession Project” builds on the work of feminist scholars Theresa Enos Gender Roles and Faculty Lives (1996) and Women’s Ways of Making It in Rhetoric and Composition (Mountford, Ballif, and Davis).  The Project is intended to cast a wide net to capture the diversity and true spectrum of women’s lives in the profession:  the working lives of women teaching at a variety of institutions and in a variety of different work arrangements; tenure track, non-tenure-track/contingent, administrative appointments, online teaching, TAships, and more.  The Women’s Lives in the Profession subcommittee of the Committee on the Status of Women in the Profession invites women teaching in the field of rhetoric and composition to help us demonstrate the diversity of our work in the field.
Our goals for collecting this information are two-fold:

  • As per the AAUP call, we want to counter the stereotypical images of professors, in particular the perceptions of the masculine heroic quest narrative that linger despite our field’s critique and attention to it (Brannon, “M[other]:  Lives on the Outside”).
  • Moreover, we want to highlight the different options and choices that are available to women and to ask these women themselves–ourselves–to narrate the possibilities and pitfalls of these choices.  Future scholars can find paths to research and learn about here in these narratives, but also learn about patterns of work and productivity from a wide range of institutions.  This work will also give us a clearer picture of the range and variety of women’s work lives in our profession.
Start-up Kit for Women’s Lives in the Profession Project (Word Document)

Copyright in the Hands of Creators: Australasia’s Growing Creative Commons

Carol Mohrbacher, St. Cloud State University

In 2001, the Creative Commons (CC) officially began offering a free set of author-controlled copyright licenses.  These licenses were and are available at the Creative Commons online site.  The Creative Commons originated at Stanford University, although it is now established in Massachusetts.  Lawrence Lessig, one of CC’s founders, describes its purpose as “to build a reasonable [author’s italics] copyright on top of the extremes that now reign” (282).  The “extremes” Lessig refers to resulted from the passage of the 1998 Digital Millennium Copyright Act, which added an additional 20 years to the term of copyright and tightened controls on works of digital production.  Fair Use was no longer guaranteed under the newest copyright code, and the public commons was thus undermined.

CC licenses have spread worldwide, and by 2009, an estimated 130 million CC licenses had been issued (“About History”).  One of the most vigorous examples of this growth comes out of Australia.   The Australian Research Centre and Queensland University of Technology (QUT), under the direction of Professor Stuart Cunningham, began collecting case studies of institutions using CC licenses on the Creative Commons Case Studies Wiki.  The book, Building an Australasian Commons, documents those case studies and is available in pdf format for download on the wiki.  The work sorts case studies into seven areas: sound, democratic change, moving images, visual arts, governmental institutions, the written word, and education and research.  Because my interest lies in the area of digital copyright and its effects on academic authorship I examine the area concerning education and research in determining the level of control the Creative Commons license exerts.

Layers for Analysis

Professor Yochai Benkler’s communication theory of layers provides an effective approach to analysis because it addresses the physical infrastructure, the logical and the content layers in communication.  Examining the three layers will provide insight into the flexibility of CC license with regard to academic authorship.  Benkler describes the layers in the following:

The physical layer refers to the material things used to connect human beings to each other.  These include the computers, phones, handhelds, wires, wireless links, and the like.  The content layer . . . . includes the actual utterances and the mechanisms, to the extent that they are based on human communication rather than mechanical processing for filtering, accreditation, and interpretation.  The logical [or code] layer represents the algorithms, standards, ways of translating human meaning into something that machines can transmit.  (392)

Take a presentation at a CCCC conference, for example.  The physical layer would include the room in which that presentation takes place and the computer and screen on which information is projected that supports the presentation.  The content layer is the presentation itself including the words, ideas, and images that communicate the ideas.  The language spoken is the logical or code language, as is the binary system that is the language of the computer which projects the PowerPoint.  Any one of the three layers may be controlled and may affect the other two layers. The following section uses the layered approach to examine three cases studies in the section, “Beyond the Classroom: Education and Research Case Studies,” in Building an Australasian Commons.  Each selected case study uses a different version of Creative Commons license.

Case 1

The first case concerns the licensing practice of Queensland University of Technology (QUT), specifically the Faculty of Law in Brisbane.  QUT is the home of the ccClinic, the research arm of the Creative Commons in Australia.  This organization acts as an information and research site for the campus community, as well as the Australian community at large.  The Clinic also acts as a site that fosters “a more traditional research stream” (167).  Two works produced by the facility are covered by different versions of the 2.5 Creative Commons license.  The anthology titled, Open Content Licensing: Cultivating the Creative Commons, published online is covered by the CC Attribution-Noncommercial-No Derivative Works 2.5 Australian license.  The CC Attribution 2.5 license protects the second work, the online report, Unlocking the Potential through Creative Commons: an Industry Engagement and Action Agenda.

For the online anthology, the CC Attribution, Noncommercial-No Derivative Works is restrictive at two layers. At the physical infrastructure layer, no restriction exists.  Anyone who has a computer may access the online book.  At the content level both commercial and non-commercial users have access to the content, but are restricted from altering the work in any way.  For commercial users, content also may not be used for profit.  Yochai Benkler explains that the logical or code layer “represents the algorithms, standards, ways of translating human meaning into something that machines can transmit, store or compute, and something that machines process into communications meaningful to human beings” (392).  Therefore, one might also argue that that a derivation might include, for example, a translation into another computer language, with firewall or cut and paste prevention code added.  The license restricts such derivation.

The online report is covered by the much less restrictive CC Attribution 2.5 license.  This type of license allows both commercial and non-commercial users to use the works for profit or not, as long as the creator is credited.  Users may also create derivations of the original work.

In other words, both the physical infrastructure and the logical layer are uncontrolled.  However, the mandatory author attribution restricts the content area to a small degree.

Case 2

IMERSD (Intermedia, Music, Education, and Research) is a project of the Conservatorium of Music at Griffith University in Brisbane, Australia.  IMERSD is wide ranging, including, but not limited to film school and music partnerships, broadcasting projects, CD and DVD recording, and other interdisciplinary and industry collaborations. The creative products of IMERSD are licensed under the Attribution–NonCommercial-NonDerivatives 2.5 Australian Creative Commons License.  This means that the creative work protected by this license can be copied, distributed and transmitted, as long as the work is not altered or transformed in any way and  as long as the work is attributed to the author.  In addition the work can only be used for non-commercial purposes.

The license provides little control at the physical infrastructure level. Because the works are limited to non-commercial purposes, some venues, like a neighborhood movie theater for example, are prevented from using the works for profit.  At the content level, manipulation of the work is prohibited, so some control is also exercised.  For example, creating a mash-up with bits of  licensed IMERSD music or film, is not allowed.    However, use of the whole and unmanipulated work is allowed, as long as authorship is attributed.  At the logical layer, again the user may reproduce the code, as long as it is not changed, added to or manipulated.  The license overall opens up access for free academic authorship, but the work cannot be altered in any way.

Case 3

Otago Polytechnic’s CC licensing exerts even less control over the use of its creative products than IMERSD.  Otago provides technical and vocational training to residents of New Zealand.  Their goal in choosing a New Zealand Creative Commons 3.0 license was “to ensure maximum amount of freedom and flexibility to itself and to people and organisations sampling its content” (Cobcroft 177).  Unlike IMERSD, Otago allows commercial use of creative products.  Also, unlike other universities’ work for hire policies, Otago’s policy encourages faculty to own and license their original educational works.  A New Zealand 3.0 CC license also allows the users to adapt or remix the work for their own use.  The only rule is that the work be attributed to the original creator.  This license is identical in its restrictions to the Australian Attribution 2.5 license.

This license provides no control at the physical infrastructure level.  Users are welcome to profit from the borrowed work.  At the content level, the work may be altered in any way, provided that the author is credited.  At the logical or code level, no restrictions exist.  All software is open and its code also maybe be altered for use, provided the creator is attributed.

Final Thoughts

Volume 1 of Building an Australasian Commons: Creative Commons Case Studies provides thumbnail sketches of licensing across professions and disciplines.  Each case study provides an overview of each institution’s creative products and the institution’s motivation for choosing Creative Commons copyright protection.  The Creative Commons wiki, from which the cases are taken, is a necessary companion to  the volume because it supplies license descriptions and a Creative Commons history that enriches the reader’s understanding of the Creative Commons movement.  The book, edited by Rachel Cobcroft provides useful examples to any creator who wants a less restrictive and more flexible option to traditional copyright protection.

In 2001, the same year that the Creative Commons was born, Lawrence Lessig’s book, The Future of Ideas: the Fate of the Commons in a Connected World, was published. In the book, Lessig made a strong case for copyright reform because of what he saw as a shrinking free public commons and increasingly regulated digital technology.  He warned that “We move through this moment of an architecture of innovation to, once again, embrace an architecture of control—without noticing, without resistance, without so much as a question” (268).   Thanks to Lawrence Lessig, Yochai Benkler, Australia’s Brian Fitzgerald and others, we now notice, resist, and question traditional controls and this books illustrates that we have other options.

Works Cited

“About History.”  Creative Commons.  Wiki. 15 Feb. 2010. Web.

Benkler, Yochai.  The Wealth of Networks: How Social Production Transforms Markets and Freedom.  New Haven:  Yale UP, 2006. Print.

Cobcroft, Rachel, ed.  Building an Australasian Commons: Creative Commons Case Studies. Vol. 1.  5 Jan. 2010. Web.

Lessig, Lawrence.  Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity.  New York: Penguin, 2004. Print.

—.  The Future of Ideas: The Fate of the Commons in a Connected World.  New York: Random House, 2001.  Print.

An Issue for Open Education: Interpreting the Non-Commercial Clause in Creative Commons Licensing

Charles Lowe, Grand Valley State University


For those of us interested in creating and sharing open education resources such as course syllabi, assignments, or instructional readings, an important consideration is how to license the content for use by students and other teachers. Copyright, even with fair use determinations (which, as most teachers are aware, can be difficult to know when and how to apply), grants few rights to others for using a work. For most educators, the “flexible copyright” of Creative Commons (CC) licenses is undoubtedly the easiest way to extend copyright privileges. A CC license can allow the user to copy, to redistribute, and—if the content creator desires—to transform or modify the work. Interested in licensing something you have created? Visit the CC “License Your Work” web page, and it will ask you a series of questions about how you might like others to be able to use your work. CC then recommends one of a set of licenses they have created that gives those permissions.  Because a legal license can be difficult to read and understand, CC also provides a human-readable deed to attach with the work or provide a link to which clearly defines the usage rights.

Or, at least, that’s the principle behind the deed. One of the most popular restrictions included with CC licenses is a Non-Commercial (NC) clause.  The deed vaguely defines non-commerical as, “You may not use this work for commercial purposes” (“Attribution-Noncommercial 3.0 Unported”). Does this mean that the character of the use cannot be commercial (e.g., selling the work for profit)? Or is it that a company or other commercial entity cannot use the work at all? Can a non-commercial organization, such as college or university, profit from the work? What about recovering costs of producing a copy of a work to redistribute it even when profit will not be made? While the legal code in the license itself is a little more specific, it does not assist much in defining what is a non-commercial use:

You may not exercise any of the rights granted to You in Section 3 above in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation. (“Attribution-Noncommercial 3.0 Unported”)

Regardless of whether or not content users try to read the legal code (we can imagine that the average Internet user is unlikely to do so) or simply follow the deed, non-commercial can obviously be interpreted in many ways. In order to gain insight into what creators of NC licensed works and users of those works believe constitutes non-commercial use, CC commissioned an in-depth research study. They then reported their findings in September of 2009 in “Defining ‘Noncommercial’: A Study of How the Online Population Understands ‘Noncommercial Use.’” Because many educators may want to choose the NC restriction when licensing content, the following will briefly provide some of the details of CC’s study and discuss how those findings might influence how and when educators choose to use the CC NC clause.

Highlights of the Study

In 2008, CC hired “Netpop Research, LLC, a market research firm” to conduct the study (20) using funding provided by the Andrew W. Mellon Foundation (8). CC had “two main goals” for this project:

  1. “to undertake an empirical study that would survey variations in the online U.S. general population’s understanding of the terms ‘commercial use’ and ‘noncommercial use,’ when used in the context of the wide variety of copyrighted works and content made available on the Internet; and
  2. to provide information and analysis that would be useful to Creative Commons and to others in understanding the points of connection and potential disconnection between creators and users of works licensed under Creative Commons ‘NC’ or other public copyright licenses prohibiting commercial use” (18).

To achieve these goals, Netpop conducted an empirical study of a targeted sample of ninety content creators and content users in the U.S. using focus groups and surveys, and more informally, collected additional information through a self-selected public Internet poll of 3,337 creators and 437 users in the CC global community  (23-27).

In the empirical study, the qualitative data collected in the focus groups was used to construct the surveys given to the target sample group and the CC global community. To do so, the focus groups created a list of factors by which they would evaluate whether or not a use was non-commercial. Focus groups of content creators came up with the following list, which was then discussed and approved in the content user focus groups without amendment:

  • “Perceived economic value of the content
  • The status of the user as an individual, an amateur or professional, a for profit or not-for-profit organization, etc.
  • Whether the use makes money (and if so, whether revenues are profit or recovery of costs associated with use)
  • Whether the use generates promotional value for the creator or the user
  • Whether the use is personal or private
  • Whether the use is for a charitable purpose or other social or public good
  • Whether the use is supported by advertising or not
  • Whether the content is used in part or in whole
  • Whether the use has an impact on the market or is by a competitor” (31).

If one were to use this list of factors, determining whether a use is non-commercial would appear to be no easier than applying the four-factor fair use test for determining copyright infringement. To better understand how content creators and users would apply these factors of non-commercial use in specific “use scenarios,” participants in both the target sample group and the CC online community completed a survey in which they answered questions to provide profile data, evaluated “possible gatekeeping factor” statements, and completed anchor point exercises (52-55). While the surveys given to all participants were similar, some questions were changed to explore the different experiences of creators and users, as well as the depth of understanding of CC itself and the NC license text by the CC online community (27).

Surprisingly, the findings indicate many similarities between how creators and users understand noncommercial use. For example,

creators and users generally consider uses that earn users money or involve online advertising to be commercial, while uses by organizations, by individuals, or for charitable purposes are less commercial but not decidedly noncommercial. Similarly, uses by for-profit companies are typically considered more commercial. (11)

When money is not a factor, both groups had more trouble determining whether or not the use was noncommercial. Where the groups did differ is their particular leaning toward commercial or non-commercial. Content creators were more likely to view a use as non-commercial than users were. Except in the case of “uses by individuals that are personal or private in nature. Here, it is users (not creators) who believe such uses are less commercial” (11).

Implications for Using the Non-Commercial Clause

While intellectual property scholars will certainly find much more in the report to review—including a few specific results related to education —what should the educator-as-content-creator/user take away from this study for her understanding of when and how to use the NC clause in CC licenses? CC suggests that, because the findings are inconclusive due to the sample sets, the best use of the results is as a “rule of thumb” (79). When licensing a text with the NC clause, be prepared that not all users will follow a strict “conservative definition of noncommercial,” and when it’s not clear if using an NC licensed text will be used in a non-commercial way, “find a work to use that unambiguously allows commercial use (e.g., licensed under CC BY, CC BY-SA, or in the public domain), or ask the licensor for specific permission” (79).

That is reasonable advice, but something that probably could have been surmised prior to the study. And it does not address the potential consequences of the ambiguity of the term non-commercial. One of the most vocal critics of the NC clause is David Wiley, a leading expert on licensing educational content . In his fictional history, “2005-2012: The Open CourseWars,”   Wiley describes the major discrepancy in the license: is the use constraint defined by the character of the use or the user (248-249)? In Wiley’s narrative, commercial publishers play upon this issue by anthologizing NC licensed educational content, and when sued in court, they counter sue and have the NC clause invalidated (249-250). As Wiley explains, CC licenses are written such that a ruling eliminating one clause would not invalidate the whole license; nevertheless, every NC licensed work would be instantaneously available for all types of commercial use (250).

Now, Wiley could potentially have a bias against the NC clause because of his executive position with Flat World Knowledge, a commercial organization specializing in the production of open textbooks (“Our Team”). But let’s assume his prediction is possible. How should that influence our choices about selecting CC licenses? Wiley recommends that educators could best protect their content by using the Share-Alike (SA) clause (251). The SA CC licenses are a type of copyleft license. Copyleft allows derivative works, yet also require anyone that modifies and/or redistributes the work to include the same license. This is similar to the GNU General Public License used by many open source software projects, including the operating system Linux. With a copyleft license, the potential commercial exploitation of intellectual property is much less; anyone who legally obtains the software or text can modify or it or give it away themselves. Profit has to be made, then, off the services sold in association with the item, not the item itself, because the work can be given away for free by the first person that purchases it. Even with or without the inclusion of an NC clause, many open education advocates recommend SA over other CC licenses which forbid derivative works because re-purposing the content can be helpful to education. Selecting this license would, for instance, allow the content to be redesigned with different formatting or modes and/or translated into different languages.

Finally, one other consideration for NC license adoption could be for the content creator to provide written clarification. MIT’s OpenCourseWare project includes an addendum to the CC license on their “Privacy and Terms of Use” web page. The document specifies that “determination . . . is based on the use, not the user;” it forbids users to “directly sell or profit;” and it allows for the “recover[y] of reasonable reproduction costs.” Perhaps this is a good strategy for large projects sponsored by institutions and organizations. But most individual content creators—including educators—choose Creative Commons licenses because the licenses are easy to implement, and because they don’t know how to write up clear—and legal—conditions of use.

One Final Consideration

Given the potential disparity between how a content creator might want non-commercial to be defined, and then how the user defines it and uses the work, it is worth considering CC’s advice in their report that the creator evaluate “the potential societal costs of a decision to restrict commercial use” (79). The use of the NC clause may discourage people from using the work in a way that the creator had intended it to be used, resulting in what CC describes as “failed sharing” (79). And it is also worth noting that there are no open source software licenses with a non-commercial clause. One can argue that open source software projects are successful because they are maximally “open,” and an NC clause with an open source license would reduce that. Linux certainly owes much of its success to commercial support from companies such as IBM, RedHat, and Novell, to name a few. Perhaps open education might enjoy similar success when the textbook publishers and other media providers are no longer our competitors, but our fellow collaborators.

Works Cited

“Attribution-Noncommercial 3.0 Unported.” Creative Commons. Web. 1 March 2009.

Creative Commons. “Defining ‘Noncommercial’: A Study of How the Online Population Understands ‘Noncommercial Use.’” Creative  Commons Wiki, 2008. Web. 1 March 2009.

“License Your Work.” Creative Commons. Web. 1 March 2009.

“Our Team.” Flat World Knowledge. Web. 2 March 2009.

“Privacy and Terms of Use.” MIT OpenCourseWare. Web. 1 March 2009.

Wiley, David. “2005-2012: The Open CourseWars.” Opening Up Education: The Collective Advancement of Education through Open Technology, Open Content, and Open Knowledge. Eds. Toru Iiyoshi and M. S. Vijay Kumar. Cambridge: MIT Press, 2008. 245-259. Print.


1 The various licenses are described at

2 CC explains that “approximately two-thirds of all Creative Commons licenses associated with works available on the Internet include the NC term” (17).

3 The report refers to the online community group as Creative Commons Friends and Family (CCFF) (27).

4 For example, distribution of “free educational materials” by a “for-profit company” is seen as more commercial than a “public, not-for-profit school use for fund raising” (Appendix 5.6-61).

5 Wiley created an Open Content license in 1998 prior to the existence of Creative Commons (the license has since been “retired” by Wiley in favor of using Creative Commons licensing).  The license can be viewed at

6 Wiley’s chapter is freely available online at

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