Ben Kuebrich
A conversation with Ben Kuebrich, author of “‘White Guys Who Send My Uncle to Prison’: Going Public within Asymmetrical Power.” (15:14)
Ben Kuebrich is assistant professor of English at West Chester University. He recently completed his dissertation, titled “Against Making a DIfference: Community Publishing, Organizing, and Power,” at Syracuse University.
Meeting Date: Weds. April 6, 2011
Location: Atlanta, Georgia
In April, the Intellectual Property Caucus met in Atlanta, GA at the annual Conference on College Composition and Communication. Open to all registrants at the conference, the yearly meeting of the caucus provides an opportunity for participants to learn about intellectual property (IP)-related developments during the previous twelve months as well as to join in roundtable discussions about continuing or pending IP issues likely to affect instructors and students.
Summary of Roundtable Discussions
Among the roundtables this year was one at which participants discussed the implications of the Digital Millennium Copyright Act (DMCA) for teaching and learning. Participants at this roundtable agreed that it is necessary to advocate for the extension of current exemptions that allow university and college instructors, as well as and film and media studies students, to bypass encryption in order to make fair use of video clips. They also resolved to advocate for the extensions of those exemptions to K-12 students and teachers, as well as to all college and university students regardless of whether they are enrolled in film or media studies courses. To these ends, caucus members will need to respond to upcoming calls for comments and testimony on the DMCA and to encourage their colleagues to do likewise.
In terms of reaching out to their colleagues, caucus participants set two additional goals: to inform educators and administrators of their current rights under the DMCA and to legally point them in the direction of tools that allow users to bypass digital protection in order to make fair use of videos for educational purposes. Finally, DMCA roundtable participants set a long-term goal: to advocate for a change in the law that restricts the dissemination of information about how to defeat encryption. This is an important goal since the current law is rather paradoxical: while current exemptions allow users to break digital codes (in order to make fair use of video clips for educational purposes), there is no clearly stated exemption for the dissemination of information about how to defeat encryption. As a result, instructors and students may desire to make fair use of video clips but lack the necessary tools. Roundtable participants agreed that the right to make fair use of resources is meaningless without the means to do so.
Another roundtable discussed the relationship between students’ rights to their own writing and to the writing of others. In questioning how new media technologies (listservs, blogs, wikis, social networking sites) complicate traditional conceptualizations and definitions of IP, the participants of this roundtable found themselves looking carefully at the ways in which plagiarism policies are articulated institutionally and nationally. Participants agreed that there may be a need to revisit and revise such plagiarism policies and statements so that they are responsive to new media technology. Participants were also interested in how best to respond to institutional pressures to use plagiarism detection software as well as the general trend toward “surveillance mechanisms” in course management tools. In thinking about the recent conflict over access to a university professor’s emails in Wisconsin, these kinds of questions are not only relevant but of great importance to our profession.
Among the issues discussed by other roundtables were how best to teach IP issues to our students, to understand the implications of current open access/fair use court cases to our work in the classroom, and to identify and utilize the current research and publications on IP issues. Each of these tables addressed the need for educators to advocate for and implement open source software solutions, as well as to address the fact that plagiarism, fair use, and “remix” are often introduced as restrictions in the writing classroom, rather than as concepts to be explored and understood. In particular, the participants at the “Teaching IP with RiP!” roundtable looked at the ways in which Brett Gaylor’s documentary RiP: A Remix Manifesto can be used to help students understand the landscape of IP and the corresponding ways in which they can compose and create in that “contested” space. Those participants tracking the open access/fair use court cases were most interested in the Cambridge University Press et al. v. Georgia State court case as its ruling will have far reaching implications in terms of the form (print/online) and amount of material that teachers can use (fairly) in their courses. Caucus participants reiterated the need for educators to provide unrestricted access to data through the creation of open access archives where both scholarship and student work could be deposited. To that end, participants suggested a number of specific IP resources that could be created, such as a “web style guide” written specifically for student use. Members of the caucus will continue to follow the process by which the federal government develops its intellectual property enforcement strategy in hopes of keeping the needs of students and educators in the forefront. This will become especially important in the coming months, as the DMCA tri-annual rulemaking hearings are just around the corner (2012).
Next Year’s CCCC-IP Caucus – St. Louis, Missouri 2012
Caucus members are in the process of preparing proposals for roundtables for the 2012 caucus, which will take place in St. Louis, Missouri . Coordinating the proposals is the new senior chair of the caucus, Martine Courant Rife, a professor of writing in the English Department at Lansing Community College, Michigan, who has been teaching online, face-to-face, and hybrid freshman composition, argumentation, technical and business writing, and advanced writing for over ten years. In addition to chairing the caucus, Martine has served for the past two years as Editor of the NCTE- IP Committee/Caucus Inbox Project. Anyone with questions about the caucus and/or the plans for its annual meeting in 2012 can contact Martine at martinerife@gmail.com
Submitted for the CCCC-IP CaucusTraci A. Zimmerman Ph.D., Senior Chair of the IP Caucus
Associate Professor
School of Writing, Rhetoric & Technical Communication
James Madison University
This year is the tenth anniversary of the CCCC-IP Annual, a publication created to fulfill the CCCC Intellectual Property Committee’s charge to keep the Conference on College Composition and Communication’s membership informed on key events and developments in intellectual property that took place over the previous year. Archives can be found at /cccc/committees/ip.
As 2014 nears its end, we are looking back on what happened over the course of the year in copyright legislation, fair use cases, open access publishing, and notable high-profile plagiarism cases. Developments regularly challenge our notions of what these terms mean, and we engage these developments in a timely manner each year in the CCCC-IP Annual. Typically, each article explains a particular development in intellectual property and analyzes its implications for teachers and scholars of rhetoric and composition. For example, the 2012 Annual contains an analysis of the rise of MOOCs written by James Porter.
Starting this year, we are encouraging multiple genres, such as short (1000-1500 words) scholarly articles, listicles (“7 Things Rhetoricians Need to Know about the Frontiers in Innovation, Research, Science and Technology (FIRST) Act”), and infographics.
Some articles for the 2014 Annual have already been planned and are in progress (a working table of contents appears below this CFP). Ideas for additional submissions are listed immediately below, but we welcome additional ideas.
Please write to Clancy Ratliff if you are interested in contributing to this year’s Annual by writing about one of the above topics or other current events in copyright, authorship, and intellectual property. Manuscripts will be due February 28, 2015, for publication about one week before the CCCC convention.
Working Table of Contents, 2014 CCCC-IP Annual:
Once again the CCCC Intellectual Property Committee announces the publication of the Conference on College Composition Communication Intellectual Property Annual—the seventh issue since 2005. That this Annual has maintained this degree of longevity bespeaks our discipline’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. This year’s Annual engages this rhetorical situation as well as developments in the circulation of scholarly publications.
In the annual’s first article, “The Defeat of the Research Works Act and Its Implications,” Mike Edwards traces the introduction and short career of the Research Works Act (RWA), a proposal that would have rolled back free and open access to government-funded research and placed that access under the control of publishers. After the publishers who backed the bill met considerable public criticism, the representatives who had introduced the Research Works Act announced that they would no longer attempt to bring the bill to a vote, and the proposed act died in committee. The abandonment of support for the Research Works Act is a significant victory for those in academia who support free and open access to research, especially research paid for by the American taxpayer.
The second article, “Open Access Initiatives,” was contributed by Annette Vee. Recently, the Princeton University Faculty Senate approved an “open access” policy for faculty research, adding the university’s name to a growing list of research institutions opting for such policies. Harvard University adopted a similar policy in 2005 (the first of such kind in the United States) and MIT did in 2008. Following the lead of these elite institutions, many others have adopted or are considering adopting open access policies, both in the United States and elsewhere. This move in “open access” from buzzword to policy affects the publication, circulation, and readership of our scholarship, and this article outlines trends in open access initiatives, some of their recent precedents, and a few of the most salient implications for our scholarship.
The next article, “One Step Forward, Two Steps Back: What Golan v. Holder means for the Future of the Public Domain,” was written by Traci Zimmerman. For a time, one surety in the complex world of copyright law and IP regulations was this: that once information passes into the public domain, it is free for all to use. But a recent decision by the Supreme Court casts even this knowledge into the realm of uncertainty. At issue in the case of Golan v. Holder was whether Congress has the right to retroactively restore copyright to foreign works in the public domain, works that may have “slipped into” the public domain while still copyrighted abroad. A bill adopted in 1994 had placed foreign works back under the shield of copyright protection in order to align U.S. policy with the Berne Convention, an international copyright treaty. For conductor Lawrence Golan, who initiated the case, the removal of works from the public domain meant that he suddenly had limited access to pieces that he had been playing freely for years. The implications of the ruling will extend far beyond the realms of sheet music and scores. Throughout academia and in libraries and archives, students, scholars, and the public at large will find themselves affected by Golan v. Holder.
The Golan v. Holder article reports on litigation over a bill that is on the books; the next article in the Annual reports on the battle over proposed legislation that did not move beyond the committee stage. “Sentence First—Verdict Afterwards”: The Protect IP and the Stop Online Piracy Acts,” submitted by Kim Gainer, describes two bills that were introduced into Congress that had the potential to restrict the growth and development of web services. The intent of each was to prevent the use of the web to link to or transmit copyrighted material without permission or compensation of copyright holders. Both bills in particular targeted foreign “rogue websites,” but the web’s nature is such that numerous companies and organizations based in the United States would have been affected by the bills—including many that were not themselves copyright infringers. Less than a year after the introduction of the first bill, both had been withdrawn, having been vigorously opposed by powerful corporations whose business models depend upon an open web, by organizations and individuals that raised questions about the impact of the bills on First Amendment rights, and by organizations and individuals concerned about the cultural and educational impact of the bills.
In addition to opposition from the constituencies described above, both bills met with opposition from consumers/creators of content that copyright holders laid claim to. The mobilization of these consumers/creators is a phenomenon dealt with in Laurie Cubbison’s article in this issue of the Annual: “A Dark Day on the Internet Leads to a Sea Change in Copyright Policy.” The “Dark Day” of the title refers to January 18, 2012, when Wikipedia went black and a black bar replaced the Google logo. In addition, many other Internet sites, including Reddit, Boingboing.net, and Wired.com, also went dark, all in order to protest consideration of the two bills. As the protest included sites commonly used by students for online research, teachers and students were made aware of copyright and intellectual property issues in a new and startling way. Students often serve as producers of content for such sites and so are also affected by copyright legislation that seeks to restrict user-created content that incorporates copyrighted material, such as videos that include copyrighted music or images. In leading a challenge to these bills, the Internet companies changed the discourse around copyright and intellectual property law in the 21st century. At one time the major media conglomerates who run the movie, television and music industries dominated copyright policy, but in 2012 Internet companies and consumers defeated legislation championed by these media conglomerates, indicating that copyright policy may no longer be dominated by content owners.
The last article in this year’s Annual, “Occupy Trademark: Branding a Political Movement This Intellectual Property,” examines the emergence of trademark applications and disputes associated with the Occupy Wall Street (OWS) movement. The article provides a detailed overview of the ongoing trademark disputes associated with the political movement by tracing the initial applications to register OWS as a trademark and documenting the competing claims by different parties that are attempting to assert ownership of terms, slogans, and branding associated with OWS. The article describes a case in which member of the broader OWS movement was subjected to threats of legal action for appropriating the trademark of another entity, and it outlines the implications of such examples for the discipline of rhetoric and composition.
This year’s Intellectual Property Annual will be available at this link: /cccc/committees/ip. Previous Annuals are available at this link as well.
IP Annual Editor:
Clancy Ratliff, assistant professor, Department of English, and Director of First-Year Writing, University of Louisiana at Lafayette
Contributors to this year’s Annual:
Timothy R. Amidon, Ph.D. student and teaching assistant, English and Writing Departments, University of Rhode Island
Laurie Cubbison, Director of Writing, Radford University
Mike Edwards, assistant professor, Department of English and Philosophy, United States Military Academy at West Point
Kim D. Gainer, professor of English, Radford University
Annette Vee, assistant professor of English, University of Pittsburgh
Traci Zimmerman, associate professor, School of Writing, Rhetoric, and Technical Communication, James Madison University
This column is sponsored by the Intellectual Property Committee of the CCCC (/cccc/committees/ip) and the by CCCC-Intellectual Property Caucus (http://groups.google.com/group/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.
Introduction to the 2016 Annual
Clancy Ratliff
Needless to say, 2016 was a humdinger of a year. We will remember it primarily as the year that Donald Trump shockingly received more electoral votes than Hillary Clinton in the
presidential election, and the year we lost many talented artists, including David Bowie,
Prince, George Michael, Carrie Fisher, and the very next day her mother, Debbie Reynolds.
It was also the year that the largest number of Indigenous tribes in a century gathered for
months at the Standing Rock reservation to protest the construction of the Dakota Access
Pipeline, a struggle that continues in the courts. Intellectual property developments
continued as always, as the eight excellent articles in this year’s CCCC-IP Annual show. Read on (full report).
| Table of Contents | |
| 1 | Introduction to the 2016 Annual Clancy Ratliff |
| 3 | Plagiarism in the Age of Trump Camryn Washington, Joseph Myrick III, and Steven Engel |
| 11 | Corruption, Higher Ed, and Russians (Oh My!) Craig A. Meyer |
| 16 | What’s in a Meme? Cristina Hanganu-Bresch |
| 24 | Snaps Without Props: Snapchat’s Blatant (Mis)Appropriation of Makeup Artistry Devon Fitzgerald Ralston |
| 30 | Fair Use and Feminist Critique: That’swhatshesaid’s (Copyright) Commentary Chris Gerben |
| 34 | A Case of Cruciverbal Coincidence, Carelessness, or the Great #Gridgate Scandal? Wendy Warren Austin |
| 40 | Cultural Property versus Intellectual Property: The Cultural Appropriation Debate Kim Gainer |
| 48 | Shades of Things to Come? Apple Patents Technology to Remotely Disable iPhone Cameras Traci A. Zimmerman |
| 52 | Contributors |
Craig A. Meyer, Ohio University
Incidents of intellectual property seem to be becoming more common, especially in academic circles. For me, one event sticks out: the dissertations of Chuck Boening and William Meehan. In the first half of 2009, news broke about a plagiarism case involving a university president, Meehan of Jacksonville State University (JSU). The charge was brought by R. David Whetstone, who believes Meehan and JSU took unjustified control of “some 55,000 plant specimens” that he insists are his (Stripling). In bringing the accusation of plagiarism, Whetstone hoped to demonstrate Meehan’s propensity “of taking academic work done by others” to the courts and somehow get control of the plants (Associated Press).
Even though the court case about a bunch of plants was the primary story, it soon took a backseat to the charge of plagiarism against Meehan, who appears to have, at the least, improperly used Boening’s earlier dissertation. In short, Boening’s dissertation related to sabbatical leave at the University of Alabama. Meehan, using Boening’s dissertation as a “model,” also studied sabbatical leave but at JSU (Boening). The allegation by Whetstone, which was picked up by major media markets, created online buzz. Websites soon began showing highlighted verbatim portions of the two dissertations (still commonly found by searching online for “what does plagiarism look like”).
At this point, I heard about the story, and I figured instead of taking the media as fact, why not e-mail Meehan? So I did. Meehan responded quickly about the allegation against him; he writes, “I disagree with the allegation” (“Re: Inquiry”). (I highlight that he does not deny the allegation, merely that he disagrees with it, but perhaps I’m splitting hairs.) Meehan continues to point out how the allegation is merely “an attempt to receive financial benefit” from JSU, which seems reasonable if Whetstone was not getting the plants (5 Aug. 2009). Further, Meehan explained, “our attorneys have asked I be circumspect” about the case, and his dissertation committee also “disagree[s] with the allegation” (5 Aug. 2009). At this point, I let the matter rest.
Then a few months later, I got to wondering about the outcome and contacted Meehan again. In a follow-up e-mail (24 Jan. 2010), Meehan directed me to the Alabama Supreme Court’s decision about including the charge of plagiarism with that of the plant specimens case; the court concluded that the allegation of plagiarism is “irrelevant” to the original case and “would serve only to embarrass and annoy Meehan” (Whetstone). And thus, they did not entertain the plagiarism, and the case seems to fizzle out.
Now, I do not know if Meehan plagiarized his dissertation, but the visuals (and commentary) online make it look as though he did. Conversely, Boening, also an academic, has been mostly silent about Meehan and the charges related to his (Boening’s) dissertation. So, once again, I went to the source and e-mailed Boening. Like Meehan, Boening was kind enough to respond; he writes, “I have nothing terribly official or insightful to say” (Boening). But he does have some insightful comments about the comparison between the two dissertations: “when one pores over the actual writing, it gets troubling” (Boening). Further, he explains how he has compared the two, and if a student turned similar work in, he “would not hesitate to turn the matter over to our dean” because of the similarities (Boening). Like me, Boening admits he does not know “if the alleged plagiarism was intentional,” but he does report, “[a]t the very best, it was very sloppy on his [Meehan’s] part, and certainly lazy.”
It would, however, be tragic if someone in a president’s position at a university did plagiarize because that sets a troubling example for today’s students and faculty. With the ability to Google words, phrases, and sentences, plagiarism has taken a rightfully heavy toll on those that have plagiarized, but even those that have made sloppy mistakes with no intent to use someone else’s work without proper acknowledgement have been caught up in such allegations. Moreover, the number of software programs available to uncover plagiarism (or similar concerns) continues to increase. Yet in my experience, I’ve noted a few students still want to take shortcuts, for whatever reason or reward, in producing work for classes. I believe we must acknowledge that some students do, in fact, want to pull the wool over our eyes, while others simply make mistakes. And then there are some that only care about getting to the next level, and once they are there, the ends justified the means. Although I do not like the potential of any one taking material from someone else without proper citation or acknowledgement, if the universities, chairs, and even those that have allegedly been plagiarized decide not to act, investigate, and follow up, I must also be acquiescent and do nothing either. There is, however, one final note that I find interesting: “Meehan turned in his dissertation on June 28, 1999, four days before he officially became president at JSU” (Jones).
Associated Press. “Alabama College President Accused of Plagiarism.” USA Today. Gannett. 2009. Web. 24 Jan. 2010.
Boening, Chuck. “RE: Plagiarism.” Message to Craig A. Meyer E-mail. 27 Jan. 2010. E-mail.
Jones, Adam. “Prof Denies Contact Regarding Plagiarism.” Tuscaloosanews.com. Tuscaloosa News, 8 May 2009. Web. 24 Jan. 2010.
Meehan, William A. “Re: Inquiry.” Message to Craig A. Meyer E-mail. 5 Aug. 2009. E-mail.
—. “Re: Inquiry.” Message to Craig A. Meyer E-mail. 24 Jan. 2010. E-mail.
Stripling, Jack. “In Living Color.” Inside Higher Ed. Inside Higher Ed. 3 Jun. 2009. Web. 24 Jan. 2010.
Whetstone v. Meehan et al.. 1081413. Supreme Court of Alabama. 2009. Alabama Appellate Watch. Lightfoot. 2010. Web. 25 Jan. 2010.
Laurie Cubbison, Radford University
J. K. Rowling’s Harry Potter series has generated an active, global fan community eager to purchase not only the novels and films but also products associated with the series. To that end, Rowling has also published books mentioned in the novels – Quidditch Through the Ages and Fantastic Beasts and Where to Find Them—with proceeds going to charity. The series’ popularity has led fans to create websites on which they share ideas, information, and their own creative work inspired by the series with scant regard to issues of copyright infringement. Fans’ high interest in generating their own materials and their willingness to buy associated products has resulted in the Harry Potter series becoming the focal point of the copyright issues connected to fan communities populated` by both children and adults . After licensing the Harry Potter films, Warner Brothers sent cease-and-notices in 2000 to websites whose domain names featured some aspect of the series . The resulting fan backlash convinced Warner Brothers to back away from enforcing copyright against amateur websites so as not alienate the built-in audience for its films and other Harry Potter products.
One popular fan-generated website was The Harry Potter Lexicon created by Stephen Vander Ark with the eventual aid of nine other fans . The website is typical of encyclopedias generated in relation to fantasy and science fiction series. Such series engage in world-building: the construction of a setting with its own history, geography, literature, and sciences. Encyclopedias, whether fan-generated or licensed by the author, help readers keep track of the “fictional facts” that provide the context for the narrative. In 2007, with anticipation for the final Harry Potter novel running high, Roger Rapoport of RDR Books approached Vander Ark to develop the website into a print publication that would incorporate information from Harry Potter and the Deathly Hallows, as well as the other novels. The book was to be limited to the website’s encyclopedia sections, with entries organized alphabetically, and to be published by October 2007. Rapoport began marketing the proposed book. While Rowling’s attorneys had been willing to ignore the fan-generated websites, a published book that might compete with an encyclopedia prepared by Rowling was a different story; therefore, they sent a series of cease-and-desist letters and then filed suit.
The case hinged on whether the manuscript for the proposed book qualified as a fair use of Rowling’s work, including not only the seven novels, but also the two companion books, as well as other products (Famous Wizard cards and The Daily Prophet newsletters). An important point to be made is that the lawsuit did not address the website, which is still available online; it only covered the book to be published for profit. Thus, the legal status of online fan-generated materials remains murky.
As Judge Patterson balanced the fair use criteria against each other, he asserted that in its function a reference guide to a creative work qualifies as fair use. However, the status of this particular manuscript involved more than its intended purpose; it also involved the extent to which Vander Ark and his co-authors used Rowling’s language in creating The Lexicon. Patterson ruled that the manuscript drew not only “fictional facts” but also Rowling’s own language from the source texts through extensive quotation, sloppy paraphrasing, and inconsistent citation. Information from the two companion books was judged to be particularly problematic, as those two books served a similar reference function to The Lexicon, and the high quantity of information drawn from them could harm the market for them. In his ruling Patterson did not consider the potential market harm to an encyclopedia prepared by Rowling herself to be a sufficient argument against The Lexicon, stating that “Notwithstanding Rowling’s public statement of her intention to publish her own encyclopedia, the market for reference guides to the Harry Potter works is not exclusively hers to exploit or license, no matter the commercial success attributable to the popularity of the original works.” He added that “While the Lexicon, in its current state, is not a fair use of the Harry Potter works, reference works that share the Lexicon’s purpose of aiding readers of literature generally be encouraged rather than stifled” .
Publication of the manuscript was thus enjoined. However, that was not the end of the story. Although the defendants’ attorneys appealed the verdict, they later withdrew the appeal. Anthony Falzone, who aided the defense as a representative of the Stanford Law School’s Center for Internet and Society, reported on his blog that following the trial, Vander Ark created a new manuscript that “addressed some of the concerns expressed by J.K. Rowling at trial, and those expressed by Judge Patterson in his thorough and detailed decision,” leaving both plaintiffs and defendants satisfied . The Lexicon: An Unauthorized Guide to the Harry Potter Fiction and Related Materials was published in January 2009. In a follow-up to the trial, Robert S. Want has published an overview of the case, complete with court documents and an extensive discussion of fair use , a book that could serve as a textbook in a course with fair use as its theme.
In the introduction and acknowledgements, Vander Ark called it “a new, different book with a new focus and purpose, mindful of the guidelines of the court” . The published book demonstrates that the project changed from one that gathered information and wording indiscriminately from Rowling’s oeuvre to a much more systematic and focused document. Rather than slavishly relying on Rowling’s language as the website does (and as the trial transcript indicates that the original manuscript did), The Lexicon provides a straightforward identification of the term, with comments, allusions, and clarifications placed in italics at the end of some entries. In the process the text moves from being dominated by fannish enthusiasm to becoming professional, even scholarly, in its tone.
And that perhaps is the crux of the issue when it comes to the difference between fan-generated encyclopedias and professionally published reference guides. Fan-generated materials are acts of love requiring many hours of work, prepared according to fan community standards that value a comprehensive supply of information over scholastic citation practices and legal standards of fair use. The remuneration for such work comes in the form of the adulation and appreciation of other fans. But when the work passes from the fan community into the broader arena of commercial products associated with a particular fandom, the rules appear to change. Or perhaps, it is rather that the rules begin to be applied. In my opinion, two significant facets of this case are 1) that only the book project and not the website was included in the case; and 2) that the defendants withdrew their appeal and wrote a new version of the book that met the guidelines established in the trial.
Thus, a lesson that can be gleaned from the case is that the legal process of establishing fair use in relation to particular texts can in fact guide the revision of those texts into ones that are able to serve the same purpose more effectively while still meeting a legal standard. In the process of transforming a fan-oriented text into a professional version, the fan grows as a writer, producing a text that surpasses in quality the earlier copyright-infringing version.
A significant implication for teachers of writing is the role that plagiarism in the form of sloppy quotation and citation played in the determination of fair use in this case, but also how Vander Ark as a writer made the material his own through the production of the published book. Thus, the website, the lawsuit, and the published book become a valuable case study of source use, fair use, and revision.
Falzone, A. (2008, 6 December 2008). Lexicon Resurrected. Retrieved 14 February, 2009, from http://cyberlaw.stanford.edu/node/5960.
Jenkins, H. (2006). Convergence Culture: Where Old and New Media Collide. New York: New York U P.
Murray, S. (2004). ‘Celebrating the Story the Way It Is’: Cultural Studies, Corporate Media, and the Contested Utility of Fandom. Continuum: Journal of Media and Cultural Studies, 18(1), 7-25.
Vander Ark, S. (2000-2008, 20 July 2006). The Harry Potter Lexicon. Retrieved 16 February, 2009, from http://www.hp-lexicon.org/.
Vander Ark, S. (2009). The Lexicon: An Unauthorized Guide to Harry Potter Fiction and Related Materials. Muskegon, Mich.: RDR Books.
Want, R. S. (2008). Harry Potter and the Order of the Court: The J. K. Rowling Copyright Case and the Question of Fair Use. New York: NationsCourts.com.
Warner Bros. Entertainment Inc. et al. v. RDR Books et al., 07 Civ. 9667 (United States District Court, Southern District of New York 2008).
Clancy Ratliff, University of Louisiana at Lafayette
The 2009 CCCC Intellectual Property Annual is the fifth issue published and my third as editor. In it, the contributors continue filling a niche in the research area of the intersection between copyright, intellectual property, and rhetoric and composition studies: articles that combine journalism and scholarship. It is our hope to keep the rhetoric and composition community informed of the latest developments in copyright and intellectual property, as it truly is a global issue with high economic and political stakes, with activists who approach the policies from a variety of perspectives. Universities adopt open access policies, new technologies prompt revisiting of copyright laws, and copyright activists think of new approaches to licensing the uses of creative and intellectual work, more and more alternatives to “all rights reserved.” We continually revisit these ideas in the classroom, too, as they pertain to definitions of authorship and plagiarism.
I have decided to keep the Creative Commons license we have been using for The CCCC Intellectual Property Annual in past years. One noteworthy difference between this issue and those past is that the 2009 issue contains nine articles, by far the highest number we have featured. I am pleased to see that the interest in copyright and intellectual property seems to be growing.
Charles Lowe, Grand Valley State University
The Option Not to Act: The Dissertations of Boening and Meehan
Craig A. Meyer, Ohio University
Copyright in the Hands of Creators: Australasia’s Growing Creative Commons
Carol Mohrbacher, St. Cloud State University
Clancy Ratliff, University of Louisiana at Lafayette
Creative Commons Plus: Increasing Options for Content Creators
Kyle Stedman, University of South Florida
Breaking Free: The Fight for User Control and the Practices of Jailbreaking
Devon C. Fitzgerald, Millikin University
Apple App Store Arbitrates the Cellular Wireless Public Sphere, For Now.
Dayna Goldstein, Georgia Southern University
MIT Will Publish All Faculty Articles Free in Online Repository (2009 Decision)
Charlotte Brammer, Samford University
J.D. Salinger and 60 Years Later: The Struggle between Copyright and the First Amendment
Kim D. Gainer, Radford University
Laurie Cubbison, Radford University
In December 2007, the Center for Social Media, led by Pat Aufderheide and Peter Jaszi of American University, released “Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video”, a study of the use of copyrighted material in videos produced by amateur video producers and posted online to Youtube.com and many other sites. In this study, the authors examine and categorize the ways in which such material is used and argue that Fair Use guidelines can apply to much of the work being produced and posted online.
The study frames the practices of amateur video producers in relation to participatory culture as described by Henry Jenkins, Lawrence Lessig, Yochai Benkler , Rosemary Coombe, Kembrew McLeod and others. The report argues that copyright owners “are shaping the emergent environment with private regulation and legal actions. They are doing so largely without information about creator practices in this unprecedentedly participatory popular culture” . Thus, the goal of the study is to describe the uses of copyrighted material and argue that many of the practices constitute fair use.
The report defines fair use and describes its implications for video production, in particular the aspect of fair use related to whether or not a use is transformative. It also refers to the role of communities of practitioners in developing statements of how to meet fair use guidelines by citing a 2005 report also published through the Center for Social Media: “Documentary Filmmakers’ Statement of Best Practices in Fair Use” by the Association of Independent Video and Filmmakers, the Independent Feature Project, the International Documentary Association, the National Alliance for Media Arts and Culture, and the Washington, D. C. chapter of Women in Film and Video. That statement detailed guidelines for documentary producers who wished to use copyrighted materials for critique, illustration, ambiance, and/or historical significance. The 2005 statement also distinguished between material that must be licensed and those uses which qualified as fair. Aufderheide and Jaszi cite the statement by documentary makers as an example of a community of producers whose claims about fair use have been accepted by copyright stakeholders, and they identify similar uses of copyrighted material among amateur video producers. However, in the more recent “Recut, Reframe, Recycle”, they describe other kinds of practices using copyrighted material that may also be considered fair use, even if using a significant amount of quoted material.
Even though fair use may be applied to the use of copyrighted materials by amateur video producers, Aufderheide and Jaszi point out that producers may fall afoul of the Digital Millennium Copyright Act, since a copyright holder may require a hosting company to remove a user-generated file which contains copyrighted material, even if that material may qualify as fair use. The aim of this report, according to its authors, is to clarify the fair use issues for online video by detailing “the difference between quoting for new cultural creation and simple piracy” while also “clarify[ing] the significance of the legal doctrine of fair use within the online environment” .
According to the report, the study “conducted an environmental scan of online video practices between September and December 2007” for video that had been created by amateurs, posted to the Internet, and which indicated a degree of originality and/or transformation . Sites scanned included YouTube, Revver, Google Video and many others, with researchers using search engines and contributed links to find the materials in question. According to the report, the researchers distinguished between videos with no copyrighted material, those which were exclusively copyrighted and contained no user-generated content, and those “that incorporated copyrighted works into new creations” , the latter category being the subject of the study.
The researchers identified nine categories of use of copyrighted material within amateur online video: 1) parody and satire; 2) negative or critical commentary; 3) positive commentary; 4) quoting to trigger discussion; 5) illustration or example; 6) incidental use; 7) personal reportage or diaries; 8) archiving of vulnerable or revealing materials; and finally 9) pastiche or collage . The report specifies parody/satire as particularly popular, with celebrities, politicians, and popular culture texts such as movies and television shows as common targets. This usage is significant, since courts have consistently supported fair use in relation to parody. Closely related to parody was negative critique, much of which was political but which also included meta-commentary on media texts. Positive commentary included tributes to deceased celebrities such as Steve Irwin as well as fan tributes to particular movies and television shows. The category of quoting to trigger discussion included much evaluative material, with the copyrighted material often being framed as the best or worst within a particular category as specified by the poster. The illustration or example category included copyrighted material in order to support a thesis, and Aufderheide and Jaszi point out the importance of this type of use in the statement by the documentary filmmakers. Incidental use also mapped to the documentary statement in that these videos often contained copyrighted material as a backdrop to other activities. The personal reportage/diary category generally included material in which the video’s producer appeared on a television show or with a performer in a way that featured the producer in the context of someone else’s copyrighted material, as when a fan goes onstage to participate in a concert. The archiving category included videos that the poster perceived as vulnerable to censorship or lack of publication, including various statements by public figures that the posters wish to keep in the public eye. Finally, the pastiche/collage category included a wide variety of materials which may or may not include critique but which juxtapose images and sounds in order to create a specific effect on the viewer.
Although this report specifically addresses online video, its implications for fair use extend to a variety of other practices by “the people formerly known as the audience” , from the creation of fan fiction and fan art to multimedia presentations for the classroom. By categorizing the kinds of use of copyrighted materials and indicating ways in which these uses may or may not meet Fair Use guidelines, “Recut, Reframe, Recycle” frames the conversation about the Fair Use of copyrighted materials in ways that acknowledge the creativity that media consumers apply to the texts they consume. These implications extend to the classroom, where students may construct multimedia presentations that use copyrighted material and then may wish to include them in electronic portfolios posted to the Internet. In fact, it would be worth determining in an additional study how many of the videos in the commentary and illustration categories began as class projects. As yet, however, no actual legal precedents exist to clarify the fair use guidelines of these materials, particularly in the context of the Digital Millennium Copyright Act.
Aufderheide, Pat, and Peter Jaszi. Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video. 2007. Center for Social Media. Available: http://www.centerforsocialmedia.org/resources/publications/recut_reframe_recycle/. March 2 2008.
Association of Independent Video Filmmakers and, et al. Documentary Filmmakers’ Statement of Best Practices in Fair Use. 2005. Pdf. Center for Social Media. 2008 13 March.
Benkler, Yochai. The Wealth of Networks: How Social Production Transforms Markets and Freedom. New Haven, Conn.: Yale University Press, 2006.
Coombe, Rosemary, and Andrew J. Herman. “Culture Wars on the Internet: Intellectual Property and Corporate Propriety in Digital Environments.” The South Atlantic Quarterly 100.4 (2001): 919-47.
Coombe, Rosemary J. The Cultural Life of Intellectual Property: Authorship, Appropriation, and the Law. Durham, NC: Duke University Press, 1998.
Jenkins, Henry. Convergence Culture: Where Old and New Media Collide. New York: New York U P, 2006.
Lessig, Lawrence. Code Version 2.0. New York: Perseus Books, 2006.
—. Free Culture: The Nature and Future of Creativity. New York: Penguin Books, 2003.
McLeod, Kembrew. Freedom of Expression: Resistance and Repression in the Age of Intellectual Property. Minneapolis: University of Minnesota Press, 2005.
—. Owning Culture: Authorship, Ownership & Intellectual Property Law. Popular Culture – Everyday Life. Ed. Toby Miller. New York: Peter Lang, 2001.
Clancy Ratliff, University of Louisiana at Lafayette
Two significant events occurred on the open access front in 2008. First, Harvard’s Faculty of Arts and Sciences and Harvard Law School voted to put an open access policy into effect. Second, the American Psychological Association attempted to collect a $2,500 fee per article from authors required by the NIH Open Access Mandate of 2007 to make their article available in PubMed Central. In this report, I will describe both of these developments.
This policy, voted into effect by the Faculty of Arts and Sciences on February 12, 2008 and by Harvard Law School on May 1, 2008, requires faculty to deposit their articles into DASH (Digital Access to Scholarship at Harvard), Harvard’s institutional repository. While faculty still own the copyright to articles they write, the open access policy grants the university a nonexclusive, automatic license to publish faculty members’ articles in their repository. Faculty members are required to deposit the author’s final version or the published version of the article (Office for Scholarly Communication, 2008a).
The open access community cheered when, in 2007, a law went into effect stating that any articles coming out of research funded by the National Institutes of Health must be made open access through PubMed Central, an open-access repository. Although the final version of the mandate allows for the publishers a six-month waiting period to provide a continued incentive to pay to subscribe to the journal for immediate access to the articles, and thus a profit for the publishers, the mandate was a gain for open access advocates.
However, in July of 2008, the American Psychological Association attempted to charge a “deposit fee” to any author required to deposit his or her article into PubMed Central. Within one day, the APA had pulled the policy. Librarian Dorothea Salo (2008b) preserved the language of the policy on her weblog, Caveat Lector:
Authors publishing in APA or EPF journals should NOT deposit, personally and directly, Word documents of APA-accepted manuscripts or APA-published articles in PubMed Central (PMC) or any other depository. As the copyright holder, APA will make necessary deposits after formal acceptance by the journal editor and APA.
[. . .]
In compliance with NOT-OD-08-033, APA will deposit the final peer-reviewed manuscript of NIH-funded research to PMC upon acceptance for publication. The deposit fee of $2,500 per manuscript for 2008 will be billed to the author’s university per NIH policy. Deposit fees are an authorized grant expense. The article will also be available via PsycARTICLES.
For an author to deposit an article into PubMed Central, it is free. The APA, however, declared that for the privilege of being published in one of its journals or those of the Educational Publishing Foundation, the author must agree not to deposit the article himself or herself (for free), but must instead give the APA $2,500 to deposit the manuscript. The authors, or their universities, would have had to buy the right to make the article open access, which is required by law anyway. In addition, as PubMed Central mainly covers biology, public health, and medicine, articles in psychology only make up a tiny fraction of the articles in the repository. The APA, apparently, did not want to make even a small number of articles available on PubMed Central without a hefty fee.
Open-access bloggers and librarians, including Peter Suber, Dorothea Salo, and Stevan Harnad, immediately began posting about the story and emailing faculty members, and the APA experienced pressure from a variety of parties. Suber summarized the absurdity of the APA’s policy thus: “Even after collecting the fee, the APA will not deposit the published version of the article, will not allow [open access] release for 12 months, will not allow authors to deposit in [PubMed Central] themselves (and bypass the fee), will not allow authors to deposit in any other [open access] repository, and will not allow authors to retain copyright” (2008). The next day, the APA removed the language from its site and posted a notice saying that they would post articles of NIH-funded research in PubMed Central in compliance with the open access mandate (Salo, 2008c). Though there is not an easy way to tell which articles in APA journals have been funded by NIH, I strongly suspect that those articles – available free of charge on PubMed Central – still cost $11.95 each as do all articles on APA’s site for their journals, PsycARTICLES.
They are still, however, charging any author whose research was funded by the Wellcome Trust, a charity that funds medical research, a fee of $4,000 per article to make the article open access. The Wellcome Trust has a policy that any articles based on research it funds must be made freely available to the public in PubMed Central or UK PubMed Central. If an article in an APA journal is based on research funded by the Wellcome Trust, APA charges the author and/or the author’s university $4,000 for the right to put that article in PubMed Central, which the Wellcome Trust will reimburse (American Psychological Association, 2008). The APA will also make those Wellcome Trust articles available open-access on PsycARTICLES, the APA’s site for their journals. Whether the APA’s loss for publishing one journal article in PubMed Central and UK PubMed Central equals to $4,000 I leave as an exercise for the reader.
When I first heard about the Harvard Open Access Policy, and the MIT university-wide policy that followed in early 2009, I wondered: what happens if a journal publisher says it won’t publish a paper if an early draft or author’s final version is already published online? This practice, which open access conversationalists call the Ingelfinger Rule, carries no legal weight, as the author owns the copyright at the time the paper is put into an institutional repository, but a publisher’s policy can be quite forceful for professors who are expected to publish to keep their jobs. I thought Harvard and MIT might be effectively forcing their faculty members to play chicken with the publishers: “If you won’t let me publish this paper in my repository, I’ll be forced to send the paper elsewhere – and you’ll no longer have the opportunity to publish a paper by a Harvard professor.”
On further thought, though, and after I read some material about the policy on Harvard’s Office of Scholarly Communication site, I understood the policy’s power. If a journal refuses to publish an article previously made available via open access, a Harvard faculty member has a few options: she can withdraw the submission and try to publish the paper elsewhere, she can petition for a waiver from Harvard’s Open Access Policy, or she can try to get the publisher to change the contract to allow the repository publication – with the full support of Harvard and its Office of Scholarly Communication, which will help professors negotiate with publishers. Salo offers the following analysis of the policy (2008a):
The Harvard policy puts publishers in an extraordinarily weak position. They can’t denounce it; that’s tantamount to denouncing faculty, which would be utterly suicidal. (Publishers can and do slag librarians. They can and do slag government. They can’t slag faculty, and they know it.) I don’t think they can sue; even if they could win in court (which I rather doubt, though standard not-a-lawyer disclaimers apply), the hideous publicity from suing Harvard would stick like tar. They can’t prevent eager librarians at Harvard from setting up and filling a repository. Even their standard lines of FUD won’t work—they can’t seriously spin this as “a vote against peer review,” because really, is Harvard going to do anything that damages peer review? Of course not! All the publishers can realistically do is plead poverty, and a look at their lobbying budgets and profit margins scotches that argument.
As faculty members, we have more power than we think in negotiating with publishers. I will reiterate here, as I often do, the importance of trying the Scholarly Publishing and Academic Resources Coalition’s Author’s Addendum when asked to sign a publishing contract, even if the publisher is likely to say no. In 2005, members of the Intellectual Property Caucus called this the “Just Ask!” campaign, with the idea that even if the publisher does not allow the author to retain copyright, regain copyright a year after publication, self-archive the paper, or whatever the author is requesting, the publisher will be on notice that faculty members want to do things like this. When an Author’s Addendum is backed by an institution, the message is even stronger. Perhaps 2009 will bring more institutional open access policies, but because we cannot always depend on our institutions to support our desire to self-archive our publications, I argue that as composition and rhetoric scholars, we should organize and write a statement directed specifically to publishers of journals in our field, answering specific language of their copyright contracts and advocating open access of our work.
The first three terms can be found at Harvard’s DASH Repository: Rights and License FAQ:
Author’s draft: a paper that you or I might write – this paper might not have gone through a peer review process yet, or it might have gone through informal review by colleagues you ask for feedback, or you might have gone through blind review and revised it, but not gotten it accepted yet. “Author’s draft” simply means a paper in some stage of revision for which you, the author, still own copyright.
Author’s final version: a paper that’s been accepted by a journal after you’ve revised for peer review comments. You still own the copyright, but you’re probably about to sign it away to a journal publisher.
Published version: a paper in-press. It’s like the author’s final version, except with the copyediting, formatting, and typesetting done by the journal publisher. You probably don’t own the copyright to this version.
Green road to open access: a term referring to authors’ self-archiving, and more specifically to journal publishers that allow these rights (Harnad et al, 2004).
Gold road to open access: scholarship that is open access by default, particularly journals that are open access (Harnad et al, 2004). In rhetoric and composition, we have several of these: Kairos: A Journal of Rhetoric, Technology, and Pedagogy; Enculturation; The Writing Instructor; Composition Forum; Computers and Composition Online; KB Journal; Across the Disciplines; and more.
The Ingelfinger Rule: the policy of some publishers that they do not publish work that has been posted anywhere in the past, even in draft form. The term comes from Franz Ingelfinger, a past editor of The New England Journal of Medicine (Suber, 2004).
American Psychological Association. (2008). Document deposit procedures for APA journals. Retrieved March 30, 2009, from http://www.apa.org/journals/authors/pubmed-deposit.html
Harnad, S., Brody, T., Vallières, F., Carr, L., Hitchcock, S., Gingras, Y., Oppenheim, C., Stamerjohanns, H., Hilf, E.R. (2004). The access/impact problem and the green and gold roads to open access. Serials Review, 30, retrieved March 30, 2009, from http://users.ecs.soton.ac.uk/harnad/Temp/impact.html
Office for Scholarly Communication. (2008). DASH repository: Rights and license FAQ. Retrieved March 30, 2009, from http://osc.hul.harvard.edu/DASH/dash-copyright-faq.php
Office for Scholarly Communication. (2008). Policy FAQ. Retrieved March 30, 2009, from http://osc.hul.harvard.edu/OpenAccess/policy.php#q10
Salo, D. (2008, Feb. 14). Pyrrhic victories. Caveat Lector. Retrieved March 30, 2009, from http://cavlec.yarinareth.net/2008/02/14/pyrrhic-victories/
Salo, D. (2008, July 15). NIH’s acid test. Caveat Lector. Retrieved March 20, 2009, from http://cavlec.yarinareth.net/2008/07/15/nihs-acid-test/
Salo, D. (2008, July 16). Surprise! Caveat Lector. Retrieved March 30, 2009, from http://cavlec.yarinareth.net/2008/07/16/surprise-2/
Scholarly Publishing and Academic Resources Coalition. (2006). Author rights: Using the SPARC author addendum to secure your rights as the author of a journal article. Retrieved March 20, 2009, from http://www.arl.org/sparc/author/addendum.shtml
Suber, P. (2004). Guide to the open access movement. Retrieved March 20, 2009, from http://www.earlham.edu/~peters/fos/guide.htm
Suber, P. (2008, July 15). APA will charge authors for green OA. Open Access News. Retrieved March 30, 2009, from http://www.earlham.edu/~peters/fos/2008/07/apa-will-charge-authors-for-green-oa.html
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