Category: Uncategorized

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.

 

Intellectual Property Reports Main Page

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
73	Contributors

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.

Two Competing Copyright Curricula: The 2009 Release of Intellectual Property Curricula from the Recording Industry Association of America and the Electronic Frontier Foundation

Clancy Ratliff, University of Louisiana at Lafayette

Introduction

In 2009, both the Recording Industry Association of America (hereafter RIAA) and the Electronic Frontier Foundation (hereafter EFF) publicized curricula for teaching children about copyright and intellectual property. The RIAA’s curriculum, intended for grades 3 through 8, was developed in 2006 but updated and re-released in 2009. The EFF’s curriculum, released for the first time in 2009, is geared toward grades 9 through 12. In this report, I will describe both curricula and the perspective that each one employs in its presentation of copyright law and briefly analyze their rhetoric. I will be using terms from Jessica Reyman’s book, The Rhetoric of Intellectual Property: Copyright Law and the Regulation of Digital Culture. Reyman examines the rhetorical workings of the content industries’ argument (she terms this “the property stewardship narrative”) and the copyright activists’ argument (which she calls “the cultural conservancy narrative”). Reyman makes a convincing case for taking public messages about copyright and intellectual property seriously, and these curricula serve as compelling examples of such messages. Below is a side-by-side listing of each curriculum’s objectives.

Objectives of the RIAA’s Curriculum, “Music Rules!”

Objectives of the EFF’s Curriculum, “Teaching Copyright”

To introduce students to the concepts of copyright and intellectual property. To help students recognize that taking music without paying for it (“songlifting”) is illegal and unfair to others. To help students, teachers, and parents set guidelines for using technology like computers and the Internet responsibly. To strengthen academic skills in reading, writing, mathematics, citizenship, and computer technology. To encourage musical and artistic creativity.

Reflect on what they already know about copyright law. See the connection between the history of innovation and the history of copyright law. Learn about fair use, free speech, and the public domain and how those concepts relate to using materials created by others. Experience various stakeholders’ interests and master the principles of fair use through a mock trial.

The objectives alone reveal the political, economic, and rhetorical agendas of each curriculum, but I will go into the differences between these in more detail.

The RIAA’s Curriculum: “Music Rules!”

The RIAA’s curriculum, as one would expect, centers on copyright as granted to works of music, and the title of the curriculum is “Music Rules!” Students engage in a variety of activities: writing their own songs, solving math problems based on numbers provided by the RIAA explaining how much money recording companies lose through illegal downloading, and learning about the music industry and its jobs. Curriculum materials such as worksheets and brochures for students, teachers, and parents explain the process of recording music and break it down into these roles, all of which, the RIAA argues, are compromised due to illegal downloading:

1. Talent Spotters: club owner, music scout, record company executives, mom.
2. Tune Crafters: music producer, songwriters, arrangers, singer.
3. Recording Artists: music producer, sound engineers, backup vocalists, instrumentalists, singer.
4. Buzz Builders: music producer, publicist, designer, photographer, magazine publishers, poster distributors, music critics, radio DJs, music video broadcasters, TV talk show hosts, singer.
5. Disc Wranglers: CD manufacturer, machine operators, printers, packagers, shipping manager, truck driver.
6. Hit Merchants: store managers, sales clerks, cashiers, online vendors, online order handlers, mail carriers.

Also affected by illegal downloading, or what the RIAA terms “songlifting” in the curriculum, are new, struggling, up-and-coming musicians. One handout makes the point that  “[f]or every hit CD, there are nine more that never make it. But the hits actually help those other artists. With a hit, the record company can afford to give another group of newcomers their chance at stardom. So when hits get songlifted, lots of other artists lose out, too.” This parsing of the economics of the music business and emphasis on copyright law as the linchpin makes the RIAA’s agenda quite clear, but if it were not clear enough, they provide a list of “Brainstorming Ideas”:

Songlifters take millions of dollars of music each year.
Songlifters hurt all kinds of music makers, not just the stars.
Songlifters keep new artists from getting their chance at stardom.
Songlifters are breaking the law.
Songlifters can get other people in trouble by sharing illegal music.
Songlifters can get computer viruses when they illegally download online.
Songlifters don’t respect other people’s intellectual property.

I’m struck by how far this list is from how rhetoric and composition teachers think of “brainstorming,” which suggests open-ended questions and heuristics designed to help students find their own views on issues and explore their complexities. In fact, I also think of the charges of “indoctrination” made against many teachers who use methods from critical pedagogy – accusations of presenting political issues (which shouldn’t be in the curriculum at all, according to this view) in a one-sided manner. Apparently, though, a business organization is free to advance their agenda openly.

Teachers are even given a loyalty oath in the form of a “pledge sheet” and encouraged to have students sign it. For elementary school children, the document reads:

This is to certify that [student’s name] has learned the rules against songlifting and pledges to:
• Respect all forms of intellectual property.
• Obey the copyright laws that protect intellectual property.
• Always use computer technology responsibly.
• Always use Internet technology safely.
• Never accept illegal copies of songs online or on disc.
(student signature)
(teacher signature) (parent signature)

For middle-school children, the curriculum offers a “check sheet” that instructs them to:
• Respect all forms of intellectual property that you find on the Internet – text, images, videos, software, and songs.
• Look for permission from the copyright holder before downloading any free music that you find on the Internet.
• Avoid using unauthorized file-sharing software so that you keep your computer safe from viruses and your personal information safe from snoops and spyware.
• Delete any music that you receive by email and remind the person who sent it that sending copies of copyrighted music is illegal.
• Never accept a homemade CD that contains copyrighted music and remind the person who made it that he or she is breaking the law.
• Never provide personal information online without a parent’s permission.

Reyman uses the label of “the property stewardship narrative” to refer to the content industries’ arguments about copyright law. In this narrative, property stewards are official distributors (record companies, for example) who disseminate recordings of creative and intellectual work. We pay the property stewards for these recordings, who in turn pay the authors and artists. All the emphasis in the RIAA’s curriculum on the behind-the-scenes work of producing music should make its status as a property stewardship narrative clear. Only rarely does the RIAA’s curriculum discuss copyright in a less absolute and more even-handed way.

The EFF’s Curriculum, “Teaching Copyright”

The EFF announced the release of their curriculum, “Teaching Copyright,” on May 27, 2009. The main activities involved in their curriculum are reading assignments, short videos, discussions, and writing prompts in which the student must adopt the position of a stakeholder affected by copyright law. The lessons culminate in the mock trial of Disney v. Faden, based on a video the students watch in which information about fair use is presented from the mouths of Disney characters using short clips from Disney movies. The EFF’s curriculum is much more concerned with copyright law’s history and intent, and the perspectives of musicians who support peer-to-peer file sharing and people who create remixes and mashups online, making fair use of copyrighted material, are better represented. The EFF also showcases the importance of the public domain. The first activity is called “Copy Quiz” and functions as both a diagnostic tool to discern students’ knowledge of copyright and a discussion-starter. The emphasis on the public domain can be observed in the quiz (emphasis in original):

Adam recorded a video for his YouTube channel about the upcoming Senate elections and includes an official photo taken by a government employee and four bills authored by the incumbent that Adam found on the Senate’s website. That’s copyright infringement.
False. Works produced by the U.S. government, or any U.S. government agency, are in the public domain. The texts of legal cases and statutes produced by the federal government are also in the public domain. 
Justin downloaded the black-and-white horror classic Night of the Living Dead from the Internet Archive and decided to mix an audio sample from the film into one of his original songs. That’s copyright infringement.
False. The copyright for Night of the Living Dead is part of the wonderful wealth of the public domain. Justin is free to be as creative as he wants with public domain material.

Perhaps my own bias as a reader is in play here, but while the EFF has an obvious counter-agenda (“the wonderful wealth of the public domain”), they at least represent copyright law as it affects groups of people other than those in the music industry. They attempt to show the balance between copyright holders and the public and to show that artists are in the best position to create new intellectual and creative work if they are able to use others’ content. Reyman refers to this line of argument, made by copyright activists, as “the cultural conservancy narrative.” Culture is conserved and enriched by maintaining and continually replenishing a commons, or a public domain of content. Copyright law gives artists and authors an economic incentive to create new work, but it does not exist only to prevent others’ use of that work; copyright law also decrees that after the specified time limit, the work must go into the public domain to be distributed freely and used in the creation of new work. The cultural conservancy narrative is less simple, and it does not have the heroes and villains (pirates) of the property stewardship narrative. The EFF’s teaching task is daunting, but the attempt to raise public awareness of copyright and break down the fear and mystery surrounding it is necessary.

Implications for Rhetoric and Composition

Reyman shows, in The Rhetoric of Intellectual Property, that the content industries put a great deal of effort and money into relaying their messages about copyright to the public. Many internet users are paranoid about downloading or using anything: worried that their Internet Service Providers will know if they download copyrighted material, and afraid that if they use peer-to-peer networks, they will end up with viruses and spyware on their computers. Rhetoric that plays on audiences’ fears, creates a false dichotomy of “pay for it, or don’t download or use it at all,” and repeats a narrative with oversimplified good guys and bad guys is registering more clearly with the public than the copyright activists’ rhetoric. This fact alone connects the development of these curricula to rhetoric and composition studies, as well as the fact that these curricula are intended for teachers, who I assume are the majority of readers of this report. I also want to point out that colleges and universities have become central scenes for copyright rhetoric; as Reyman discusses in one chapter of her book, under the 2008 Higher Education Opportunity Act, colleges and universities are required to teach students about “the unauthorized distribution of copyrighted material” and “suggests that institutions use technology-based deterrents” to ensure that students do not download copyrighted files without permission or payment (117). That law is tied to higher education funding, which is particularly tenuous as of this writing. But I believe that even in this rhetorical context, these curricula can prove useful; perhaps we can use them both to create a new copyright curriculum for the college level, one that not only educates students about copyright law but also helps them become keener critics of rhetoric.

Works Cited

Electronic Frontier Foundation. Teaching Copyright. 2009.

Recording Industry Association of America. Music Rules! 2009.

Reyman, Jessica. The Rhetoric of Intellectual Property: Copyright Law and the Regulation of Digital Culture. New York: Routledge, 2010.

Introduction

Clancy Ratliff, University of Louisiana at Lafayette
Co-Chair, 2009 CCCC Intellectual Property Caucus

I am happy to announce the fourth CCCC Intellectual Property Annual and my second Annual as editor, and I hope that you, the readers, will find that the articles help to achieve our committee’s first charge, to keep the rhetoric and composition community informed about developments related to intellectual property that affect our work as teachers and scholars.

While the CCCC Intellectual Property Caucus has studied many issues related to copyright and intellectual property, access to a public domain of scholarship, teaching materials, art, literature, music, science, and more, especially for students and teachers at small, underfunded universities, is at the heart of the Caucus’ activity. The topic, for example, of most of the articles in the past four years of annuals is fair use and access, and this year’s edition is no different; you will find articles about fair use, open access, and orphan works.

Like last year, I have licensed the 2009 Annual under a Creative Commons Attribution, No Derivative Works, Noncommercial Use license to facilitate the publication of this collection on other sites. Also, as I wrote in the introduction for the last collection, I want to emphasize that derivative works are permitted for purposes of accessibility (creating an audio recording for the visually impaired, for example). Also, I am making the collection available for download in Open Document Format as well as a PDF file.

Writing teachers are fortunate that more content than ever is available for potential use in classrooms. Old films and television shows are released on DVD every day. Archives are available in public institutional repositories set up by universities and government organizations. New content released under Creative Commons licenses is uploaded constantly. The IP Caucus will continue to chart this effort and contribute to it.

• Downloadable PDF of these pieces.
• Downloadable Word Document of these pieces.

Settlement of Suit against Google Book Search Leaves Fair Use Issue Unresolved

Kim Dian Gainer, Radford University

Warner Brothers and J. K. Rowling v. RDR Books: Fair Use and the Publication of Fan Guides

Laurie Cubbison, Radford University

Open Access in 2008: The Harvard Policy and the APA’s Attempt to Profit from the NIH Open Access Mandate

Clancy Ratliff, University of Louisiana at Lafayette

“It’s A Hard Knock Life”: The Plight of Orphan Works and the Possibility of Reform

Traci A. Zimmerman, James Madison University

Click here to view the individual articles in this issue at http://www.ncte.org/cccc/ccc/issues/v56-3

Sommers ,Nancy. “The Case for Research: One Writing Program Administrator’s Story.” CCC 56.3 (2005): 507-514.

Abstract

This essay is based on a session called “Stories from the Field” at the 2004 meetings of the Conference on College Composition and Communication.

Keywords:

Writing Students Program Faculty Research WPA Composition GraduatePrograms

No works cited.

Schilb, John. “Review Essay: Prospects for ‘Rhetcomp’.” Rev. of The Realms of Rhetoric: The Prospects for Rhetoric Education. Joseph Petraglia and Deepika Bahri, eds.; Postmodern Sophistry: Stanley Fish and the Critical Enterprise. Gary A. Olson and Lynn Worsham, eds.; Beyond Postprocess and Postmodernism: Essays on the Spaciousness of Rhetoric. Theresa Enos and Keith D. Miller, eds. CCC 56.3 (2005): 515-522.

Works Cited

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Miller, J. Hillis. Afterword. Olson 141-47.

Olson, Gary A. Justifying Belief: Stanley Fish and the Work of Rhetoric. Albany: SUNY P, 2002.

Hesse, Douglas. “Not Even Joint Custody: Notes from an Ex-WPA.” CCC 56.3 (2005): 501-507.

Abstract

This essay is based on a session called “Stories from the Field” at the 2004 meetings of the Conference on College Composition and Communication.

Keywords:

Writing Students Program Faculty Research WPA Composition GraduatePrograms

Works Cited

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Brereton, John. “Scholar, Teacher, WPA, Mentor.” CCC56.3 (2005): 493-501.

Abstract

This essay is based on a session called “Stories from the Field” at the 2004 meetings of the Conference on College Composition and Communication.

Keywords:

Writing Students Program Faculty Research WPA Composition GraduatePrograms

Welch, Nancy. “Living Room: Teaching Public Writing in a Post-Publicity Era.” CCC 56. 3 (2005): 470-92.

Abstract

At the same time that compositionists have shown a renewed interest in public writing, neoliberal social and economic policies have dramatically shrunk the spaces in which most students’ voices can be heard. In this essay I argue that from twentiethcentury working-class struggles in the U.S. we and our students can acquire the tools necessary to work against this latest wave of economic privatization and concomitant suppression of public voice and rights. If we can resist the common academic assertion that we live today in a radically distinct postmodern, postindustrial society, we can return to capitalism’s long history for examples of the creative and persistent ways in which ordinary people have organized to claim living room.

Keywords:

Students Class WorkingClass History PublicSphere Writing Space Workers Rhetoric Labor Rights

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Abstract

In this article I argue that the making of Chinese American rhetoric takes place in border zones and that it encodes both Chinese and European American rhetorical traditions. By focusing on the discursive category of “face” and “indirection”/ “directness,” I demonstrate that Chinese American rhetoric becomes viable and transformative not by securing a logical, unified, or unique order, but by participating in a process of becoming where meanings are in flux and where significations are contingent upon each and every particular experience.

Keywords:

Rhetoric Face China AmericanRhetoric FortuneCookies Indirection Students Discourse Communication Borderlands Tradition Language Culture

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Harkin, Patricia. “The Reception of Reader-Response Theory.” CCC 56.3 (2005): 410-25.

Abstract

This essay offers a historical explanation for the place of reader-response theory in English studies. Reader-response was a part of two movements: the (elitist) theory boom of the 1970s and the (populist) political movements of the 1960s and 1970s. If the theory boom was to remain elitist, it had to deauthorize reader-response. If reader-response was to remain populist, it had to consent to and participate in that deauthorization. In the 1980s reader-response was popular among compositionists, even as it began to lose currency among theorists. Later, however, compositionists professionalized themselves by deemphasizing, or even ignoring, reading. Now, as the profession again considers including explicit instruction in reading in the introductory writing course, the thinkers who could help us most have faded from the discussion.

Keywords:

Theory LiteraryTheory ReaderResponseTheory Reading Texts Composition Criticism EnglishStudies Reception

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Martine Courant Rife, Lansing Community College and Michigan State University

Report Overview

In September 2007, the Center for Social Media at the School of Communication at American University released a report, The Cost of Copyright Confusion for Media Literacy, explaining the results of a study regarding the understanding and use of fair use and copyright by individuals in educational-media literacy contexts. The main inquiry explored the relationship between copyright beliefs and teaching practices. The research found that the key goals of teaching media literacy were “comprised by unnecessary copyright restrictions and lack of understanding about copyright law” (p. 1).

According to the report, copyright law, particularly fair use, provides broad protection for folks working in education. However, due to participants’ lack of knowledge and understanding about the law’s protections, their ability to share, teach, and have students produce media-rich texts was severely circumscribed. Not only that, but the researchers found that teachers’ lack of knowledge was passed on to students as well as colleagues, perpetuating “copyright folklore” that often sees the law as much more restrictive than it is.

The report recommends increased understanding of fair use for educators as well as their institutions, and suggests the development of a statement outlining policies for use of copyrighted materials in education-media literacy contexts.

Discussion of the Study

In order to gather data, the researchers contacted teachers, media literacy curriculum producers, and organizational leaders. While many of the participants worked in K-12, a number of them were from universities. Interviews were conducted by phone and lasted about 45 minutes. According to the researchers, the interview questions were open-ended and explored how teachers use copyrighted materials for education and asked teachers to describe how their students use copyrighted materials in student-created coursework.

A unique aspect of the study was that all interviewees were named along with their area of expertise and institutional affiliations – 62 participants are listed in the appendix, about 30% are associated with teaching in K-12. Many of the participants were from the geographical regions near Temple University (Pennsylvania), but some were from as far away as California. The researchers did not describe their participant recruitment methods in the report except that they did use membership lists of various organizations, including the Action Coalition for Media Education, Alliance for a Media Literate America, The National Council of Teachers of English, the Student Television network, the National Alliance for Media Arts and Culture, and the Youth Media Reporter (p. 23).

The major finding of the study was that the key goals of teaching media literacy were “comprised by unnecessary copyright restrictions and lack of understanding about copyright law” (p. 1). Because of participants’ lack of knowledge and understanding about the law’s protections, their ability to share, teach, and have students produce media-rich texts was severely circumscribed. Not only that, but the researchers found that teachers’ lack of knowledge was passed on to students as well as colleagues, perpetuating “copyright folklore” (p. 12) that often characterized the law as much more restrictive than it is.

Additionally, the study offered the following findings:

• During the last decade, copyright awareness has greatly increased among the educational community.
    
• Teachers believe that the ability to access and use copyrighted materials is central to educating citizens, and is a necessary component to maintaining a democracy. “More than any other feature of copyright law, fair use recognized the core speech values enshrined in the first amendment” (p. 6).
    
• Too many teachers are unaware of the expansive nature of fair use, and instead rely on various “Guidelines” circulating on the web and adopted by some institutions. The guidelines have varying histories, but are mainly products of the publishing industry.
    
• Teachers are confused about the differences between plagiarism and copyright, and talk about the two interchangeably although they are separate doctrines (attribution is irrelevant to the issue of “fair use”).
    
• Teachers received their information from the media, their institutions, and lore. The information they receive either negates fair use or casts it in a conservative light.
    
• Many institutions have extremely restrictive policies about using copyrighted materials – including how students’ texts can be displayed. For example, some schools would only let student multimedia pieces be displayed in individual classrooms rather than on school-wide media display systems. Such policies fail to recognize fair use as a legitimate part of US law.
    
• Gaining permission from copyright holders for educational use was not “an option among interviewees” (p. 10). Either the permission was not granted, or the fee requested was unreasonable in the context.
    
• Teachers’ lack of understanding (characterized as “cognitive dissonance” by the researchers), caused them to develop three coping mechanisms: 1) studied ignorance; 2) quiet transgression; 3) hyper-compliance (p. 14).

“Studied ignorance” was defined by the researchers as the “what I don’t know can’t hurt me” attitude. Teachers believed that if they stayed ignorant of the laws, they didn’t need to worry or comply. “Quiet transgression” described teachers’ willingness to do what they considered illegal with the hopes that they were unlikely to get caught. “Hyper-compliance” was defined as teachers who created blanket prohibitions in the area of student work especially – such as not permitting students to use any copyrighted materials in their own coursework.

The “costs” of this confusion, according to the report, are less effective teaching materials, constriction of creativity for teachers and students, and the perpetuation of misinformation. Recommendations included developing a code of practice or a statement of fair use practices to assist the educational community. As an example, the authors refer to the recently developed Documentary Filmmakers’ Statement of Best Practices in Fair Use which have been negotiated with the Cost of Copyright Confusion co-authors along with documentary filmmaker organizations. Apparently, the Statement had an immediate effect. “Filmmakers themselves, commercial networks, and the Public Broadcasting System all refer to it on a regular basis . . . it has permitted filmmakers to portray reality as they see it without compromise” (p. 23).

Implications for Educators and Writing Teachers

The study, conducted through Temple University’s Center for Social Media and funded by the John D. and Catherine T. MacArthur Foundation, connects to teachers of writing both directly and indirectly. It’s directly connected to us as writing teachers in two ways. One, the reports’ co-authors are Renee Hobbs, founder of the Media Education Law at Temple University School of Communication, Peter Jaszi, Program on Information Justice and Intellectual Property in the American University Washington College of Law, and Pat Aufderheide, Center for Social Media at American University School of Communication. Notably, Peter Jaszi has in the past, co-authored pieces with Martha Woodmansee (1994, 1995) regarding the teaching of copyright in the context of composition instruction. Two, the report states that study participants were recruited from various membership lists, including the National Council of Teachers of English (NCTE).

The study is indirectly connected to us simply because it is situated in existing scholarship within our field on a number of issues. For a small example consider the issue of copyright and chilled speech (Porter, 2005; Westbrook, 2006), ethics, copyright, and fair use (DeVoss & Porter, 2006), first amendment and copyright (Herrington, 1998), the teaching of fair use (Logie, 1998; CCCC IP Caucus statement; Walker, 1998), importance of understanding the TEACH Act (Reyman, 2006), and rhetorical tactics used to scare potential content users (Logie, 2006). I think we will all agree that the Cost of Copyright Confusion study speaks to issues that many of us care about. But what should we do, based on this study? One thing that we are already doing is working in this area in a way that is relevant to the teaching of composition and rhetoric. I have listed some existing scholarship in composition studies as a small example. This work should of course continue.

As such scholars (Herrington, Logie, Porter, DeVoss, etc.) have already suggested, we as composition teachers should take ownership of these issues. While I commend the Center of Social Media for its important work in the area of teaching, copyright, and fair use, I also implore researchers in rhetoric and writing (R&W) to conduct their own research with their own methodologies, and in a fashion that makes sense to us in R&W. For example, while researchers with the Cost of Copyright Confusion study interviewed 62 individuals about their understanding and practice regarding fair use, it seems to me that an important population was not included, and that is the students who also need fair use rights, and who are also impacted by the so-called “misinformation” that their teachers are passing on. Student perspectives would add rich details to the study’s findings. For a beginning, see Sue Webb’s (2008) reflection on composing and displaying her “Grand Theft Audio” multi-media piece.

The idea of developing a statement of fair use has previously been addressed in our field. We do have the existing CCCC IP Caucus (2000) fair use statement, but that was published almost a decade ago. It might be worthwhile to consider updating, renegotiating, and re-publishing this statement, perhaps using the CCCC IP caucus as a vehicle to do so. Including other stakeholders might give such a statement more punch. I am thinking of organizations like NCTE and affiliates, the American Association of University Professors, and perhaps key textbook publishers like Bedford/St. Martin’s, Erlbaum, and so on. We might enlist the help of Educause (through our institutional representatives). With collaborations like this, teachers and researchers within R&W should explore and pursue funding opportunities such as that offered by the MacArthur Foundation. These kinds of funds will support our work and further our expertise and legitimacy as experts of new-media writing.

Apart from direct political action, I think as new-media specialists we also want to take it upon ourselves to self-educate on copyright and fair use, and develop accurate and appropriate curriculum. We should make a space for this in our writing programs and professional development seminars. To do otherwise runs the risk that statements on fair use will be developed by lawyers outside our field rather than us: “us” as the experts on writing and the teaching of writing, for whom fair use is central.

Works Cited

CCCC IP Caucus. (2000, Feb.) Use your fair use: Strategies toward action. College Composition and Communication, 51( 3), 485-488.

Documentary Filmmakers’ Statement of Best Practices in Fair Use. (2005). Center for Social Media. Retrieved on March 8, 2008, from http://www.centerforsocialmedia.org/resources/publications/statement_of_best_practices_in_fair_use/.

Herrington, T. K. (1998).The interdependency of fair use and the first amendment. Computers and Composition, 15(2), 125-143.

Hobbs, R., Jaszi, P. & Aufderheide, P. (Oct. 2007). The Cost of Copyright Confusion for Media Literacy. Retrieved on November 9, 2007 from http://www.centerforsocialmedia.org/resources/publications/the_cost_of_copyright_confusion_for_media_literacy/.

Logie, J. (1998). Champing at the bits: Computers, copyright, and the composition classroom. Computers and Composition, 15, 201-214.

Logie, J. (2006). Peers, pirates, & persuasion: Rhetoric in the peer-to-peer debates. Indiana: Parlor Press.

Porter, J.E. (2005). The chilling of digital information: Technical communicators as public advocates. In Michael Day and Carol Lipson (Eds.). Technical communication and the world wide web in the new millennium (pp. 243-259). Mahway, NJ: Erlbaum.

Reyman, J. (2006). Copyright, distance education, and the TEACH Act: Implications for teaching writing. College Composition and Communication, 58(1), 30-45.

Walker, J.R. (1998). Copyrights and conversations: Intellectual property in the classroom. Computers and Composition 15, 243-251.

Webb, S. (2008). The composer. In DeVoss and Webb: C & W Online 2008 Grand Theft Audio. Retrieved on March 8, 2008, from http://www.digitalwriting.org/cw/.

Westbrook, S. (2006). Visual rhetoric in a culture of fear: Impediments to multimedia production. College English, 68(5), 457-480.

Woodmansee, M. & Jaszi, P. (Eds.). (1994). The construction of authorship: textual appropriation in law and literature. Durham and London: Duke UP.

Woodmansee, M. & Jaszi, P. (1995). The law of texts: Copyright in the academy. College English, 57, 769-787.