Category: Uncategorized

Timothy R. Amidon, Graduate Assistant, University of Rhode Island

This article is continued from the previous month’s IP Report.

Last month I described texts that are created within electronically networked, socially constructed environments. While these ‘little texts’ may be hosted on sites controlled by well-heeled corporations—think Facebook—they have been authored, sometimes collaboratively, by the users of the technology. That fact led me to pose the following question: who has access to, and thus de-facto ownership and stewardship for, this vast sea of information, these giant data-sets?

Put differently, should we conceive of meta-text and spimes as intellectual property? Under Title 17 of U.S.C.—Copyright Law of the United States of America—should these data-units be considered copyrightable works? Section 103(b) states the following about derivative works:

The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.

By analogy with the above, a contributor to a metatext/spime could be considered to have a status comparable to that of a contributor to a compilation or a derivative work.

Metatexts/spimes, currently, do not seem to be explicitly considered copyrightable texts and works in and of themselves—if they are, it is beyond my scope of knowledge about copyright and Intellectual Property law. I’m not a lawyer; I’m a writing teacher. But, as a writing teacher I am concerned that spimes have been legally conceived of as byproducts yielded by the interaction that occurs at a point of interface by at least two distinct parties. In other words, historically it seems these ‘byproducts’ have been considered proprietary data that should be assigned to the companies/makers of technologies themselves. I want to interrupt that assumption. Are banks allowed to collect and distribute information about your purchasing habits? Are libraries? I don’t think they can, and I also think there are reasons why that is so.

Let us imagine, then, that the spimes and metatexts we author may be considered “derivative works.” If so, how should the authorship/ownership be assigned if each individual spime/metatext is the result of a complex interaction between technology user and technology provider? Moreover, what about the massive data-sets that are assembled, mined, and analyzed by technology providers? Consider section 101 of the Copyright Law, which provides a legal definition of “collective work”:

A “collective work” is a work, such a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.

There is, no doubt, a significant difference between a D.J.’s remix and a spime—between a periodical and a set of spimes. Further, it is not my intent to claim that spimes or metatexts should be considered “derivative works” or “collective works”—although I think that in some cases this may be the appropriate way to approach things.

The point is that we, stewards in the social negotiation of composing in a digital era, should be having conversations about what is being done with these “texts.” The point is that U.S. Copyright Law, as a system that was built to respond to analog views of authorship and textuality, can no longer adequately address the complexity of authorship and textuality that comes with the hybrid system we now inhabit. The point is that Copyright as a system needs significant overhaul to make sense. As Lawrence Lessig and others have been arguing for quite some time, the balance between individual right and collective good is a bit off kilter. This isn’t just a case of music and movies being pirated; there are other complications that are associated with communication in a digital world, and those who promulgate culture at corporate levels are just one of the parties who are feeling the effects of the digital transition.

In close, independent users of new media technologies ‘co-create’ spimes and metatexts using computers and other new media tools. These spimes and metatexts are often gathered in real time, collected and grouped into databases. As Johnson-Eilola and others have noted, spimes and metatexts can be used for both good and bad purposes. Moreover, a technology user is always a co-author at the interface, and, as a result, of the metatexts, the spimes, that detail the interaction. Metatexts and spimes add value to technologies, but do end-users who do a lion-share of the authoring of that value have access to that information? In most cases, the answer is no. I find this a dilemma for which I have no immediate answer—no immediate response. Perhaps, we place too much trust in the technologies we use; perhaps, we haven’t adequately criticized the economies of interaction associated with technology use. It is time we do so.

Ultimately, in my eyes, there is a significant distinction between a program/netservice’s proprietary code and the by-products of the use of a digital space. There is a distinction between tool and tool in use. It makes sense to me that the informational byproducts of use should be in some cases assigned to a company, but in other cases perhaps they should be kept private or disclosed as part of the public record. Nevertheless, I am concerned that there is neither greater public discussion nor greater public concern about who does claim ownership of, let alone who ought to claim ownership to, the metatexts/spimes that are created by a collective body of technology users. As a discipline, we might help begin that conversation through our research, publishing, and teaching practices.

Works Cited

Johnson Eilola, Johndan. “Among Texts.” Rhetorics and Technologies: New Directions in  Writing and Communication. Ed. Stuart A. Selber. U of Southern Carolina P, 2011. Print.

Lessig, Lawrence. Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity. New York: Penguin, 2004. Web. 15 June 2011.

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 kgainer@radford.edu.

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Over the past few decades, the technology of writing has been changing at an unprecedented pace, and intellectual property law has been struggling to keep up with these changes. As online courses proliferate and blogs enter the classroom, the growing tensions between writing and law have become increasingly relevant to daily educational practices. Since the founding of the Conference on College Composition and Communication’s Intellectual Property Caucus (IPC) in 1994, questions of fair use and copyright in one capacity or another have begun to define a significant subject of scholarly inquiry. Those of us who teach text-making—particularly new media composition—often find ourselves encountering specific areas of focus: whether we are determining how to advise students when they want to appropriate and incorporate images from the internet, or wondering who may claim legal ownership of the teaching and research materials we produce for our employing institutions, we always want to keep our text-writing goals working within the legal parameters.

Composition and Copyright: Perspectives on Teaching, Text-making, and Fair Use (Edited by Steve Westbrook, Suny Press, 2009), the first book collection to emerge from the IPC’s conversations, offers a thorough investigation of how copyright law is currently influencing processes of teaching and writing within the university. Drawing connections between legal developments, new media technologies, and educational practices, the volume’s contributors explore the law’s theoretical premises, applications to traditional and online writing classrooms, and larger effects on culture and literacy. Central to the volume is the question of what may constitute “infringement” or “fair use” and how the very definition of these terms may permit or prohibit specific writing or teaching activities.

Divided into three sections, Composition and Copyright offers a diversity of perspectives from writing teachers, legal experts, and industry professionals. It includes contributions from Jessica Reyman, Sohui Lee, Clancy Ratliff, Brian D. Ballentine, Steve Westbrook, Lisa Dush, Martine Courant Rife, TyAnna Herrington, John Logie, and Jeffrey R. Galin. In the first section, “Defining Cases and Concepts,” contributors draw connections between legislative developments, precedent-setting legal cases, and educational practices, examining, for instance, the implications of the Digital Millennium Copyright Act and MGM Studios v. Grokster for teachers and students of new media composition. The second section, “Teaching the Conflicts,” focuses pointedly on how writing teachers address problems of copyright pedagogically. Contributors to this section analyze the ways in which textbooks frame discussions of fair use, explore students’ understanding of legal and illegal textual practices, and offer strategies for discussing questions of appropriation in blogs and visual texts. Contributors to the book’s final section, “Concluding Polemics,” argue for increased awareness and activism on the part of faculty members; pointing to the restrictive and censorial capacities of copyright law, they suggest that writing teachers take proactive roles to protect writers’ freedoms. As a collection, Composition and Copyright provides an excellent resource for teachers and students working in the fields of composition-rhetoric, professional and technical writing, communications, and jurisprudence.

 

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Imagine this:

You assign a mixed/multimedia writing assignment for the students in your course. One of the students decides that she will create a comic strip with an accompanying reflection that meets the assignment’s requirements. When she turns in the comic, she’s developed two characters, a brown and white wolf, and a blue dog. These characters interact with each other over various everyday topics. Both are her original creations as is the comic strip itself. Over the semester, the student continues developing these characters and the comic strip, and on her own time, outside your course, she acquires webspace where she starts publishing the weekly comic. After the semester, she continues to stay with this project and develops a readership of about 1000 hits per week.

You might ask yourself if this scenario could really happen, and while I cannot provide data on exactly how often this type of thing happens, this particular instance is from a real-life event. This particular student (not my student but someone else’s) is going to be a college senior next year, and is exploring the possibilities of continuing to work on the comic strip in graduate school. The student’s experienced success with something that began as a relatively insignificant course project – but could grow to be much more – the basis for a career and scholarly study. The research I conducted back in 2007 in a different setting (See “Copyright Law,” http://techcomm.stc.org/journals/february-2010-issue-57-number-1/) – clearly pointed out that due to the affordances of digital, networked writing, the “class assignment” can indeed travel through space and time in amazing ways – in other words, webwriting can have a sort of permanence that perhaps the paper essay did/does not.

But what the comic strip scenario offers, I think, is a really good rationale for why a student, teacher, or writer might actually want to copyright his/her own creations. I know that among writing teachers we do focus a great deal on fair use and the sharing of materials, but along with that conversation it’s always good to remember that we can also take steps to make sure our own creations aren’t exploited in preventable ways. A famous case that some might recall, is the one around the issue of the creation of the Taco Bell Chihuahua. In this particular case, litigation involving sums towards $50 million dollars were at stake over the issue of who created and was compensated for the idea of the dog. Wikipedia outlines some of the issues and provides citations to articles on this particular litigation (See http://en.wikipedia.org/wiki/Taco_Bell_chihuahua — the use of the dog by Taco Bell eventually ended). This is just one (of many) examples. More recently, litigation has ensued on allegations around appropriation by J.K. Rowling of other author’s materials (See “Harry Potter’s US Publisher Faces Breach of Copyright Charges” http://southern-courier.whereilive.com.au/lifestyle/story/harry-potters-us-publisher-faces-breach-of-copyright-charges/). In other words, while we don’t know how likely it might be for a student or teacher to have their creative expressions appropriated in a way that’s possibly exploitive, it’s always good to be aware that if a writer continues moving forward with a comic or cartoon that seems to “catch-on” or acquire a large following – it might be wise to get that formal copyright protection. While fees are always subject to change, at this writing a basic online registration is only $35.00 (See http://www.copyright.gov/docs/fees.html).

For teachers and students interested in learning more about copyright in general, the U.S. Copyright Office has a recently updated resource page with readable pdfs on every imaginable copyright topic – including “Cartoons and Comic Strips” (See http://www.copyright.gov/circs/ and specifically http://www.copyright.gov/circs/circ44.pdf). While original, fixed creations are automatically copyright protected even without formal registration, registration can provide clear evidence – a “public record” (p. 1) that a particular author has created a particular character or comic at a particular moment in time. In the event a creator ever needed to begin an infringement lawsuit to protect his/her (U.S. originating) creation, formal registration with the copyright office is required. There are different categories to submit a work for formal copyright registration – and the U.S. Copyright Office guideline suggests that a comic should be submitted as a visual art work unless the textual elements are “preponderant,” in which case the work can be submitted as a literary work (p. 1). The office further lists three options for registration: online, using “fill-in Form CO” – which uses barcode scanning technology, and finally the more traditional paper form submission (this last form has to be requested by mail through the copyright office). While a theme or “general idea or name for characters depicted” cannot be protected (because copyright only protects expression and not ideas), the comic as “drawing, picture, depiction, or written description” including those descriptions of the characters themselves can indeed be protected through copyright (p. 1). Comics can be copyrighted in a variety of unit sizes (a strip, book, organized collection, and so on – See pages 2-3 for details).

This particular U.S. Copyright Office publication is a good reminder that a lot of different kinds of texts are copyright protected – and with the advent of the graphic novel (The New York Times currently lists the top ranked graphic books – See http://www.nytimes.com/2010/07/25/books/bestseller/bestgraphicbooks.html?_r=1&ref=bestseller), it is no longer uncommon for writing students or their teachers to explore writing in these genres. When a creation goes digital and establishes a substantial readership – it just might be time to consider formal copyright protection.

Submitted by:
Martine Courant Rife, JD, PhD
Junior Chair CCCC IP Caucus
Lansing Community College
martinerife@gmail.com

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Since 1994, the Caucus on Intellectual Property and Composition/Communication Studies (CCCC-IP) has sponsored explorations of intellectual property issues pertinent to teachers, scholars, and students. Our meeting is open to those interested in these explorations. 

Meeting in roundtables, participants discuss topics such as plagiarism and authorship, student and teacher IP rights, open access and open source policies, and best practices in teaching students and instructors about IP. Roundtable speakers provide overviews of their topics, and participants then create action plans, develop lobbying strategies, or produce documents for political, professional, and pedagogical use. At the end of the workshop, participants reconvene to share their plans and recommendations for future action.

The CCCC-IP Caucus meeting will take place on Wednesday, April 6 from 2:00-5:30pm; we are listed as follows in the program catalog under Wednesday workshops:

Intellectual Property in Composition Studies
Room M301, Marquis Level
2:00–5:30 p.m.

We have a number of exciting roundtable topics this year.  The IP Caucus meeting is a great way to kick off the convention, especially one dedicated to exploring the “relations” of contested knowledge and space.  Come join us! 

Roundtable 1: Implications of the DMCA for Teaching and Learning
Since its passage in 1998, the Digital Millennium Copyright Act, which criminalizes the circumvention of Digital Rights Management and seeks to restrict the use of copyrighted material on the Internet, has been invoked in ways that go beyond the legitimate protection of intellectual property rights. The default setting, as it were, is to bar all use, regardless of whether it is fair use. As documented by the Electronic Freedom Foundation, the DMCA has been used as a way of stifling critique and as a tool that companies can wield against competitors. Such outcomes may not have been intended by the framers of the DMCA, but their existence has implications for students and educators, whether on the K-12 or college level. This roundtable will survey recent developments in the realm of DMCA as they affect education, with an eye toward proposing actions that the caucus can take to ameliorate the impact of the act.

Roundtable 2: Students’ Rights to Their Own Writing—and the Writing of Others
This roundtable will focus on how new media technologies complicate traditional conceptualizations and definitions of intellectual property. Students use listservs, blogs, wikis, and social networking sites more frequently as both venues and source material for their texts, often copying and pasting the material of others into their own work without attribution. Additionally, the traditional concept of ownership becomes fuzzy when a number of (unrelated) individuals contribute to an electronic document that continually undergoes revision. Participants will discuss how the refiguring of textual creation necessitates new methods of conceiving of and teaching about intellectual property.

Roundtable 3: Current Research and Publications on Intellectual Property Issues.
This roundtable will discuss studies currently being conducted by members of the IP caucus; special issues of journals that focus on IP, such as TCQ, Technical Communication, and Computers and Composition; edited collections created by IP caucus members; new curricular developments; and new books or books in progress. Roundtable participants will also formulate a plan-of-action for future studies, research, curriculum, and publications.

Roundtable 4: Teaching IP with RiP!
This roundtable will ultimately seek to identify some “best practices” of teaching students about IP by using Brett Gaylor’s RiP! A Remix Manifesto in the classroom.  Often, plagiarism, fair use, and remix are introduced as restrictions in a writing classroom, rather than as concepts to be explored and understood.  Following the theme of the conference, roundtable participants will formulate strategies to help student composers (and teachers of composition) identify these “contested spaces” and “contested knowledge” in the classroom so that they can create (rather than feel constrained) within those spaces.

Roundtable 5: Tracking Open Access/Fair Use Court Cases and Legislation
Recent legislative acts (e.g., NIH Public Access, 2008) and court cases (e.g., Salinger et al. v. John Doe et al., 2009) are redefining open access and fair use.  This roundtable will update participants about the latest developments in legal and legislative venues, and will discuss ways the IP Caucus/IP Committee may contribute to these processes.

This month’s report is submitted by:
Traci A. Zimmerman Ph.D., Chair, Intellectual Property Caucus
Associate Professor
School of Writing, Rhetoric & Technical Communication
James Madison University

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Jeffrey R. Galin
Florida Atlantic University
jgalin@fau.edy

The recent decision and order by Judge Evans in favor of Georgia State University is arguably the most significant fair use case to be settled since the 1976 Copyright law was enacted. Unlike the two often-cited cases that settled copyright law for course packs produced by for-profit copy centers (Basic Books, Inc. v. Kinko’s Graphics Corp. and Princeton University Press v. Michigan Document Services, Inc.), Cambridge UP v. Patton et al directly addresses the substance of fair use for non-commercial purposes and provides university libraries and professors specific methods for determining fair use for copyrighted works in online reserves. Cambridge, Oxford, and Sage publishers had sued Georgia State University representatives over faculty use of articles and chapters placed in the University online reserve and course management systems.

The outcome of this case is not surprising to those of us who have been following it carefully since it was filed in April 2008. Judge Evans has provided a set of thoughtful and measured decisions that will likely hold up under appeal. While the case has binding authority only in the state of Georgia, it has set a powerful precedent that will likely stand for years to come. This short report introduces the fundamental questions raised by the case, offers a short review of important decisions that led to its findings, and ends by noting several important additional outcomes from the penalty phase.

The fundamental question of this case is whether university faculty have the right to supplement their course reading list with online reserve articles and chapters without paying licensing fees for these materials. The ostensible answer is yes as long as the online reserve articles and chapters meet the fair use criteria within newly defined parameters as set forth in this case.

First and foremost, the judge states that all copyrighted excerpts were supplemental to the classes that used them. That is, course syllabi reflect that students were required to purchase one or more books for their courses in addition to the online readings. While the judge does not directly state that faculty should not assign exclusively readings posted in online reserve or course management system, she implies that doing so could be problematic. Since the Georgia State case does not address this issue, there is no clear determination to follow; however, it makes good common sense to avoid assigning only readings from unpaid online copies. A good rule of thumb to avoid copyright violations is to assign primary texts and supplement them with additional online unpaid readings that all meet the four factor fair use test as set forth in the Copyright Act of 1976, described below.

These fair use factors concern the character of the work (non-commercial uses that transform original uses are most favored), nature of the work (factual is favored over creative), amount used from the work (typically a chapter or equivalent is favored), and the impact that unpaid use has on the potential market for the work (unavailable licenses for digital works are most favored). Details of fair use factors are provided in GSU’s Copyright Website, a short, effective, and informative resource that also provides a Fair Use Checklist that faculty complete to make fair use decisions. This case resulted in several new qualifications in fair use case law, particularly for factors three and four.

Factor three witnessed the most significant changes. Whereas past cases dealing with fair use and copyright typically avoided identifying fixed amounts that might be considered a kind of bright line rule for the amount one can take from a book, this court drew explicit lines that, while not absolutely binding, were used to determine overuse of works. Judge Evans held that: “Where a book is not divided into chapters or contains fewer than ten chapters, unpaid copying of no more than 10% of the pages in the book is permissible under factor three” (88). This rule effectively allows for “about one chapter or its equivalent” from a given source. Where a book contains ten or more chapters, the unpaid copying of up to but no more than one chapter (or its equivalent) will be permissible under fair use factor three.” Furthermore, excerpts will be limited to “students who are enrolled in the course in question, and then only for the term of the course.” Students also must be reminded that they may not share their copies with others (95). And the excerpts must serve a “legitimate purpose in the course” and must be “tailored to accomplish that purpose.” These qualifications are the most explicit metrics ever to be articulated in case law concerning fair use, coming as close to “bright-line rules” as possible without contradicting the Supreme Court affirmation in Campbell v Acuff-Rose Music, 510 U.S. 569, 590 (1993) that each violation must be analyzed on a case-by-case basis.

The other substantial change that the Court introduced appears in factor four, impact on current and potential markets for the work. Typically, this factor will weigh against fair use when “harm is significant” (Campbell v Acuff-Rose Music, Inc.). Yet, to “prevail on factor four, Defendants have the burden of proving that any harm from the infringing use is insubstantial.” Despite this framework, Judge Evans found that the Plaintiffs also had obligations. Because the publishers claimed that “availability of licenses [ostensibly from the Copyright Clearance Center] shifts factor four fair use analysis in their favor, the judge reasoned that “it is appropriate for them to be called upon to show that CCC provided in 2009 reasonably efficient, reasonably priced, convenient access to the particular excerpts which are in question in this case” (83). This distinction became important in the case because only 13 excerpts of 46 from Oxford and Cambridge Presses were found to have licenses for digital distribution. This important point meant that 33 works were deemed to have met the burden of the fourth fair use factor because they were not able to “command permission fees” in 2009, and works were maintained in password protected systems and then removed from the systems after the term was over. Thus there was “little risk of widespread market substitution of the Defendants’ copy for the Plaintiffs’ original” (79). This case makes clear that if licenses are readily available, then factor four weighs heavily in favor of copyright holders. If licenses are not readily available, then the last factor weighs in favor of the professors who would use the works (87).

Four additional contributions of this case may be found in Judge Evans’ ruling for Declaratory relief: 1) that the “decidedly small excerpts” for factor three favor Defendants when the amount includes “the aggregate of all excerpts from a book” in a given term. In other words, faculty cannot offer one excerpt, take it down and offer another from the same sources if it amounts to more than the chapter equivalent; 2) These proceedings do not apply to “books intended solely for instruction of students” in a class, or textbooks. The judge implies that textbooks would be less likely candidates for a fair use defense. Similarly, creative works would likely fail a fair use test as well because of their higher level of protection in factor two. This means that works of fiction, poetry, drama, film, and other creative forms would be more protected and would likely require paid licenses for copies; 3) management of student access to these copyrighted materials must be strictly enforced as described in Factor four above; and 4) It may be possible to assign more than the typical chapter or 10% of a text for which there is not a digital license available. While there is technically no clear upper limit of the acceptable amount, Judge Evans states that an example of 18.5% that was found fair use in this case “likely is close to loss of fair use protection” (10). It is important to note that if the “heart of the book” has been excerpted, it could weigh against fair use, Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 565 (1985).

A few final thoughts on this case are worth mentioning. In her December 28, 2012 Order granting Defendants summary judgment on direct and vicarious copyright infringement, Judge Evans makes a definitive case against comparing online reserves with course packs from commercial copy shops, which proved decisive for the outcome of the case. (I discuss this issue further in “Online Course Reserves on Trial.”) Furthermore, Plaintiffs in this case were rebuffed numerous times for demanding remedies well beyond what was warranted to maintain effective fair use practices. The court ruled in the May 11, 2012 Judgment that while publishers have rights to publish entire edited collections, they may not claim greater protection for chapters that were originally written as separate works. She writes that the only incentive publishers have to control works in this way is “to choke out nonprofit educational use of the chapter as a fair use” (69).

Perhaps the most striking outcome of this case came in the final penalty phase. While the Plaintiffs prevailed in five cases of infringement, three from a single text, the Judge named the Defendants as the prevailing party and awarded them “reasonable attorney fees” of nearly $4 million. The message from the four years of proceedings in this case is clear. Fair use holds up against direct and unrelenting challenges. It is unlikely that publishers will sue universities over fair use practices again anytime soon. Universities and faculty must take care to manage their course materials responsibly and diligently, and the publishing industry for academic works must take note that academic uses of certain kinds of works will continue to be upheld. If the decision is not overturned, it has provided clear guidelines for online reserves and management of copyrighted works in course management software like Blackboard.

Works Cited

Cambridge University Press v. Mark P. Becker et al. Civil Action No. 1: O8-CV-1425-ODE U.S District Northern District of Georgia. 30 Sept. 2012. Justia.com. Docket 463. Web. 14 Oct. 2012.

Cambridge University Press v. Mark P. Becker et al. Civil Action No. 1: O8-CV-1425-ODE U.S District Northern District of Georgia. 10 Aug. 2012. Justia.com. Docket 441. Web. 14 Oct. 2012.

Cambridge University Press v. Mark P. Becker et al. Civil Action No. 1: O8-CV-1425-ODE U.S District Northern District of Georgia. 30 Sept. 2010. Justia.com. Docket 235. Web. 7 Mar. 2011.

Cambridge University Press v. Carl V. Patton et al. Civil Action No. 1: O8-CV-1425-ODE U.S District Northern District of Georgia. 15 Apr. 2008. Justia.com. Docket 1. Web. 11 Mar. 2011.

Copyright, Permissions and Policy. Georgia State University, 2009. Web. 14 Oct. 2012.

 

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Introduction to the 2015 CCCC-IP Annual

by Clancy Ratliff

• Downloadable PDF of the report.
• Downloadable Word Document of the report.
• Table of Contents

I remember being in John Logie’s rhetoric and intellectual property seminar at the University of Minnesota in 2003.

From my personal archives: a photo of the course syllabus.

He would often ask us to find news stories about, to use his phrase, the IP landscape, and in class we would juxtapose our discussions of critical theory of authorship and complex analysis of copyright law with current news about intellectual property issues. This began a habit of mind for me, which after about a decade I have systematized: all through the year, I see interesting stories in my social media feeds and my other reading, and I paste those URLs into a TextEdit document (and I’m increasingly doing screen capturing to augment this), which I turn into a CFP around the end of each year – a wish list of topics I hope people will want to write about, and they do, and very well.

In the 2015 Caucus meeting, we decided to start including a dedicated pedagogy section in the Annual. All the articles have had connections to rhetoric and composition in some way, but the three articles in the Pedagogy section this year are more explicitly directed toward classroom application and reflections on teaching writing. Kristi Murray Costello’s excellent analysis of the FI (failure for cheating or plagiarism) course grade is the first scholarly examination in our field of this new institutional development. Steven Engel gives us several clever classroom activities about the misattributed quotation on the Maya Angelou postage stamp that help students better understand authorship. Kathrin Kottemann helps us reflect on what we’re asking students to do as authors; through her research about catfishing, an online dating phenomenon, she raises the question: are we asking our students to be catfish? To pretend to be someone else?  In future years, we hope to have not only pieces such as these, but other teaching genres as well: syllabuses for new courses on IP issues, lesson plans, assignment descriptions, and curated lists of resources for teaching about copyright and authorship.

After the section of articles that are closely related to pedagogy is the section I’m calling Copyright and Authorship in Culture. The six articles in this section all look at 2015 events in the IP landscape and situate them in rhetoric and composition broadly. Matthew Teutsch illustrates the stakes of appropriation in his analysis of a political cartoon on Twitter that perhaps some of us saw: the lowering of the Confederate flag followed by the raising of the LGBT pride flag, a visual comment on two of the most important (and in one case, tragic) historical moments of the year. Craig A. Meyer writes about an artist who enlarged and printed Instagram photos of members of SuicideGirls, an adult lifestyle brand, as they describe themselves online. I will admit that I found the moving of the Instagram images across contexts to large gallery-quality prints to be an inventive and chic stylizing. However, the artist did not inform anyone in SuicideGirls that he intended to do this, and he sold the images for $90,000 each. Meyer’s analysis of this case is insightful.

William Duffy provides an impressively thorough explanation of the complexities and stakes of the “defeat devices” in Volkswagens: software that reported false data about emissions. Freedom to tinker in this case has implications for the environment, road safety, and much more. Wendy Warren Austin has taken the news story about the emergence of the kilo-author – which is exactly what it sounds like: 1000 or more co-authors – and made a substantial contribution to composition scholarship in her analysis of authorship in the sciences.

Laurie Cubbison continues her tracking of Taylor Swift’s copyright advocacy, which began in the last CCCC-IP Annual with a report about Swift’s decision to pull her album from Spotify. This year, Cubbison analyzes Swift’s argument to Apple: she pulled her album from the Apple Music streaming service because artists would not be paid for songs streamed during the free trial period for users, and Apple reacted by agreeing to pay the royalties. Kim Gainer reports on the most recent legal developments involving the status of the song “Happy Birthday,” a song that should have been in the public domain already but has not been. Now, however, those wanting to use “Happy Birthday” in audio or video compositions may do so without worry – though specific performances of the song may still be protected by copyright, of course.

The CCCC-IP Annual has always featured thoughtful and critical reviews of longer texts about copyright and intellectual property, particularly white papers from other organizations such as Creative Commons and the Electronic Frontier Foundation. Traci Zimmerman continues this tradition with a review of a new handbook from the Authors Alliance, Understanding Open Access: When, Why, & How to Make Your Work Openly Accessible.

In sum, I’ve learned a lot from reading this year’s Annual articles, and I hope you do too. If you assign any of them in your classes (they would work so well not only in composition classes, but in technical writing and literature courses also), please contact me and let me know how it went.

Table of Contents
1	Introduction to the 2015 Annual Clancy Ratliff
Pedagogy
4	Who’s Failing Who? Six Questions to Consider Before Adopting the FI Grade Kristi Murray Costello
12	Stamp of Authenticity: Using The Maya Angelou Forever Stamp to Explore Quotation and Authorship Steven Engel
17	Catfishing, Authorship, and Plagiarism in First-Year Writing Kathrin Kottemann
Copyright and Authorship in Culture
20	Cultural Commentary and Fair Use: Bob Englehart, the Southern Poverty Law Center, and Two Flags Matthew Teutsch
28	A Prince, Some Girls, and the Terms: A Canary in the Cave? Craig A. Meyer
33	Defeat Devices as Intellectual Property: A Retrospective Assessment from the DMCA Rulemaking William Duffy
47	How Does the Rise of the ‘Kilo-Author’ Affect the Field of Composition and Rhetoric? Wendy Warren Austin
54	All She Had to Do Was Stay: How Apple Music Got Taylor Swift and Avoided Bad Blood Laurie Cubbison
58	A Copyright Ruling Puts the “Happy” Back in Happy Birthday (and Brings an End to the Mortification of Restaurant Servers and Patrons) Kim Dian Gainer
Review
67	Understanding Open Access: When, Why & How to Make Your Work Openly Accessible Traci Zimmerman
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The CCCC-IP Begins Its Third Decade: Join Us in Tampa at the 4Cs

We warmly invite all CCCC conference attendees to two events sponsored by the Caucus on Intellectual Property and Composition/Communication Studies (CCCC-IP). This is a landmark year for the IP Caucus, which is beginning its third decade and has now been recognized as a standing group. For twenty years the caucus has explored IP issues pertinent to our academic field and beyond, including the following:

• plagiarism and authorship
• student and teacher rights related to intellectual property
• copyright and copyleft as they relate to scholarship and teaching
• best practices in teaching students and instructors about intellectual property issues
• open access and open-source policies
• contemporary issues in intellectual property, such as corporate surveillance and collection of user metadata (as related to scholarship in composition and communication)

The first event will be the annual open meeting of the caucus. During this session, we welcome educators with questions and concerns about intellectual property to join us in discussions of how intellectual property affects the work of scholars, teachers, and students in our field.

This year’s interactive, action-focused meeting includes a breakout session into four roundtable groups. Each roundtable group, led by a facilitator, will discuss a particular set of IP issues in order to elicit practical solutions, action plans, lobbying strategies, and the production of documents for political, professional, and pedagogical use within CCCC and beyond. Near the end of the meeting, the roundtables reconvene to share their discussions, plans, and recommendations for future action.

The session will also feature remarks by Heather Joseph, executive director of the Scholarly Publishing and Academic Resources Coalition (SPARC), advocate for the passage of the Federal Research Public Access Act, and organizer of Access2Research.

This year’s roundtables:

1. Legal and Legislative Developments

This roundtable hosts a discussion of the previous year’s legal and legislative IP developments as they affect students and educators. In previous years our colleagues at this table have discussed the Digital Millennium Copyright Act (DMCA), which under some circumstances can have an adverse impact on what students and faculty are able to accomplish in the classroom as well as additional legislation that affect copyright and intellectual property. Discussions have also touched on court cases being closely watched by the educational community, such as one involving Georgia State University’s system of electronic reserves. No matter what the specific topics, discussion will revolve around finding ways to safeguard the ability of students and teachers to make appropriate use of copyrighted material in furtherance of legitimate educational goals.

Roundtable 2: IP Advocacy and Outreach within and beyond CCCC/NCTE

With both short- and long-term planning in mind, this roundtable considers how the CCCC-IP might work to broaden its work as a leading advocate of IP awareness within CCCC and NCTE. In particular, participants will strategize how CCCC-IP might build professional alliances with, and learn from, other professional organizations who have constructed influential professional identities such as the American Library Association, the Electronic Frontier Foundation, and the Scholarly Publishing and Academic Resources Coalition.

Roundtable 3: IP in the Classroom: Pedagogical Approaches

As multimodal composition pedagogies become increasingly prevalent, so does the necessity for student-centered teaching about copyright and fair use. This table invites participants to brainstorm innovative ways to teach IP in composition classroom–when composing with text or in other modalities. As composition students write for print, online, mobile, and presentational formats and for a greater audience diversity than ever before, both teachers and students need to know how to handle a wider diversity of intellectual property issues that arise. We’ll also brainstorm about effective ways to distribute these pedagogies with the wider CCCC community.

Roundtable 4: IP Stories from the Field

Anecdotes about being unable to publish certain video clips or textual sections in scholarly articles, being unable to publish student work that uses particular songs or images, or encountering students whose source use practices challenge our definitions of plagiarism are not uncommon in writing studies teacher-scholar lore. No formalized collection of these stories yet exists, however. This roundtable seeks to change that. For this roundtable we invite Caucus members and visitors to share their stories about and experiences with IP, plagiarism, and copyright issues. We will video record responses to gain a collection of the IP encounters that are part of our professional lives.

The above discussions will take place Wednesday, March 18, from 2:00-5:30 p.m. in Room 18 of the Tampa, FL, Convention Center.

The second event will be a panel, “Twenty Years of CCCC-IP: A Roundtable Discussion on Intellectual Property and Composition Studies,” that will explore what intellectual property has meant and will mean for composition studies. Co-chaired by Timothy Amidon (Colorado State University) and Clancy Ratliff (University of Louisiana at Lafayette), the panel also will include Jeffrey Galin (Florida Atlantic University), John Logie (University of Minnesota, Minneapolis); Jessica Reyman (Northern Illinois University), James Porter, (Miami University), and Nick Shockey, Director of Programs and Engagement at the Scholarly Publishing and Academic Resources Coalition (SPARC). Serving as respondents will be Johndan Johnson-Eilola (Clarkson University) and Danielle Nicole DeVoss (Michigan State University). This session is listed in the CCCC program as G.44 and will take place Friday, March 20, from 9:30-10:45 a.m. in the Marriott, Florida Ballroom VI, Level Two.

For more information about the two CCCC-IP sessions, contact this year’s senior chair of the IP Caucus: Tim Amidon. In addition, visit this video introduction to the caucus by Dr. Amidon.

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 kgainer@radford.edu.

CCCC IP Committee Website

Previous Reports

The 2014 CCCC Intellectual Property Annual: An Opportunity to Contribute

Open Invitation to the Intellectual Property Caucus @ CCCC Indianapolis, 2014

Intellectual Property-Related Motion at the CCCC Business Meeting

2012 Tri-Annual DMCA Rulemaking Creates Expanded Use Rights for Educators

An Invitation to the Intellectual Property Caucus at CCCC in Las Vegas

A Big Win for Georgia State for Online Reserves

Open Access: Where Next?

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

IP and Your Professional Organizations

A Ruling in the Georgia State University e-Reserve Case

The Lord of the Copyright: An IP Fable

The CCCC-IP Annual: Top Intellectual Property Developments of 2011

An Invitation to a Series of Discussions on Intellectual Property

Another (Short) Tale of Open Access: The HathiTrust Case

‘Hacktivist’ or Thief?: What the Aaron Swartz Case Means to the Open Access Movement

Making Textbooks Affordable and Open

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

Who Owns Your Digital Fingerprint?: Negotiating an Answer to the Question

Who Owns Your Digital Fingerprint?

Update on Google Book Settlement: What Can Your Students Access?

Report of the Meeting of the Annual CCCC Intellectual Property Caucus

IP Caucus to Meet April 6 in Atlanta

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

Celebrate the Public Domain

Think Locally, Act Globally: Taking US Copyright Reform to a World Stage

YouTube—and Educators—Win!

Fair Use for Researchers in Communication: A Resource

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

Understanding Fair Use in the Classroom: A Resource

What? You want to copyright your comic!!?

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

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

Report on the March 2010 CCCC-Intellectual Property Caucus Annual Meeting, Louisville, Kentucky

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

The Rhetoric of Intellectual Property: Copyright Law and the Regulation of Digital Culture (Routledge, 2010)

Data Privacy Day 2010 Celebrated January 28

Transforming Our Understanding of Copyright and Fair Use

CCCC’s Intellectual Property Caucus Member, Martine Courant Rife of Lansing Community College, testifies at the DMCA hearings at the Library of Congress

Plagiarism Detection Services: Unsettled Questions

New Edited Collection from IP Caucus member just published: Composition and Copyright

The Google Book Settlement: Implications for Educators and Librarians

July IP Report: “What’s Fair is Foul?”: Understanding Fair Use in the Classroom

Top Intellectual Property Development Annual Series

Introducing NCTE-CCCC’s Intellectual Property Committee and Intellectual Property Caucus

Introduction to the 2010 CCCC-IP Annual

Clancy Ratliff, University of Louisiana at Lafayette

Like every year in recent memory, 2010 presented new developments in intellectual property and copyright: new situations and updates to ongoing ones. This year’s Conference on College Composition Communication Intellectual Property Annual  — our sixth issue — features several articles that track ongoing matters, such as the Georgia State case, the Digital Millennium Copyright Act, and even the tricentennial of the Statute of Anne, which was the first copyright law. It also shows us interesting new cases such as the infringement of a food blogger’s copyright and its public aftermath and the appropriation of Hurricane Katrina survivors’ oral histories as “found poetry.” These articles are only some of the great work in this collection. On behalf of the CCCC Intellectual Property Committee, I hope you’ll read this year’s annual and come away from it more informed about some of the previous year’s additions to the intellectual property landscape.

• Downloadable PDF of the report.
• Downloadable Word Document of the report.

Introduction to the 2011 CCCC-IP Annual

Clancy Ratliff

This is the seventh year of publication for the Conference on College Composition Communication Intellectual Property Annual, published on behalf of the CCCC Intellectual Property Committee — my fifth as editor. That this Annual has maintained this degree of longevity bespeaks the field’s commitment to copyright, intellectual property, and authorship as key concerns. Throughout 2011, the battle between the content industries and the copyright activists continued, but other powerful internet industries have started lobbying for a free and open communication network: Facebook, Google, and more. This year’s Annual engages this rhetorical situation as well as developments in the circulation of scholarly publications.

• Downloadable PDF of the report.
• Downloadable Word Document of the report.

Devon C. Fitzgerald, Millikin University

Though the practice of jailbreaking1, a process allowing users greater control and customization of tools like the iPhone, iPod Touch, and more recently Android phones and e-readers like the Nook, has been around since early 2007, it gained a great deal of momentum in 2009.  The first jailbreaking methods, released in May 2007, were intended to provide users with a way to customize ringtones and play third-party games. Within months of each iPhone and iPod release, a jailbreak application is typically released.

In 2009, the Electronic Freedom Foundation filed a proposal with the Librarian of Congress and the Copyright Office for exceptions to the Digital Millenium Copyright Act (DMCA) which protects digital intellectual property like Apple’s operating systems and software, making anyone who circumvents the software in violation of the DMCA and subject to penalties under the law. So while there is some confusion regarding whether or not jailbreaking is “illegal,” it is clear that as of the writing of this report hackers and jailbreakers violate the DMCA. The EFF requested three exemptions to the DMCA: 1) an exemption for “amateur creators who use excerpts from DVD’s to create new, non-commercial works” 2) exemption for jailbreaking phones 3) a renewal of a previously granted exemption for unlocking handsets to be used in recycle and refurbishing programs (http://www.eff.org).  Apple claims that jailbreaking violates copyright and does not warrant an exception. A ruling was expected in October 2009, then postponed to December and further postponed for early 2010. A decision is expected any day.

Why Jailbreak?

Currently, the only way to add iPhone applications is to buy Apple-approved apps from iTunes. Applications such as GoogleVoice, available on Blackberry and Android phones have been rejected by Apple, leaving the users who want to use such technologies to either go without or jailbreak their phones and knowingly violate copyright. The EFF has called Apple’s closed software policies anti-competitive.

Jailbreaking requires users to download a third-party program like Blackra1n and r3dsn0w in order to modify the iPhone’s bootloader, allowing users access to the directories and other areas of technologies that users have been previously been prevented from modifying. This means that users are able to move beyond the closed propriety software with which the device ships and install third-party applications and open software including games, ringtones, backgrounds and icons as well as other functions currently missing from the iPhone software such as the cut and paste functionality. In addition, the iPhone is currently only available to those who belong to or agree to join the AT&T network2. Jailbreaking makes it easier to “unlock” devices so they can be used on any cellular network.

Recently, users of the Barnes and Noble e-reader the Nook have been “rooting” their devices in order to install programs like web browsers and an RSS reader in addition to being able to customize and configure the menu screen. The process is complex and requires users to re-register their devices. And like all jailbreaking it voids the original warranty.

Even Google’s Android OS, which is open-source and highly customizable is not immune to jailbreaking, though it seems as equally risky as jailbreaking the iPhone without as significant a payoff. Jailbreaking an Android phone allows  tethering (meaning users can hook the phone to their computers and use the phone’s wireless capabilities to get online through their computers), running a full LINUX system, downloading Android software directly from developers instead of filtered through a service provider. Because Android users are already able to significantly customize their phones through wallpaper backgrounds, font choices free applications, screen unlock patterns, passwords and which icons appear on the opening screen. Thus, the desire for root directory access is less significant and less popular.

Is Jailbreaking illegal?

In brief, yes and no. While not explicitly illegal, jailbreaking one’s phone is a violation of the Digital Millenium Copyright Act (DMCA), which protects digital intellectual property like Apple’s operating systems and proprietary software. Thus, anyone who circumvents the software in violation of the DMCA and subject to penalties under the law. So while there is some confusion regarding whether or not jailbreaking is “illegal,” it is clear that as of the writing of this report hackers and jailbreakers violate the DMCA.

In 2009 Electronic Frontier Foundation filed a proposal with the Librarian of Congress and the Copyright Office for exceptions to the Digital Millenium Copyright Act. The EFF requested three exemptions to the DMCA: 1) an exemption for “amateur creators who use excerpts from DVD’s to create new, non-commercial works” 2) exemption for jailbreaking phones 3) a renewal of a previously granted exemption for unlocking handsets to be used in recycle and refurbishing programs (http://www.eff.org).  Apple claims that jailbreaking violates copyright and does not warrant an exception. A ruling was expected in October 2009, then postponed to December and further postponed for early 2010. A decision is anticipated any day.

Implications for Rhetoric and Composition

The Copyright Office’s ruling could certainly impact the field of rhetoric and composition, particularly if it rules in favor of protecting closed, proprietary software which could potentially limit innovations and advancements in software technologies as well as limit user control and input. In the future this might have implications for the capabilities and choices of educational software and technologies.

Perhaps most significantly, the practice of jailbreaking itself points to a growing trend among technology users for control and customization options .There are customizable features on almost any technological tool one uses today and there has been for some time. Users can have a custom-made computer by choosing the hardware, software and in some cases, colors of their laptops. There are customizable templates for websites, blogs, content management systems like Drupal and Moodle and social media sites like Twitter. Today’s users want what is popular but they want to exert their ownership of it in some way; they want to personalize technology so that it works specifically for them and for their lifestyles but also to represent their identities. It is not surprising, then, that many users want to exert control over the technologies they use most. . As colleges move more content and courses online and seek ways to stay competitive in the marketplace, these user trends will find their ways into our classrooms and curriculum.

Work Cited

Electronic Frontier Foundation. 2009 DMCA Rulemaking. Web. 15 Feb. 2010.

Gohring, Nancy. “Report: DOJ Reviewing US Telecom Deals with Handset Makers.” PC World 6 July 2009. Web. 20 Feb. 2010.

*****

1 The term “jailbreak” originates from the UNIX command “chroot” which alters a computer’s operating directory and prevents the user from leaving that directory, commonly referred to as “chroot jail.”

2 The US Department of Justice has reportedly begun investigating how mobile service carriers function under exclusivity deals with makers of handsets, a move that could alter and even prevent agreements like the Apple/AT&T deal.