Revolution Lullabye

June 8, 2009

Logie, Peers, Pirates, and Persuasion

Logie, John. Peers, Pirates, and Persuasion: Rhetoric in the Peer-to-Peer Debates. West Lafayette: Parlor Press, 2006.

Logie addresses through rhetorical historicism five terms used to describe sharing in the peer-to-peer debates (hacking, theft, piracy, sharing, and war), arguing that in order to understand the basis of the arguments on both sides of the debate, we must throughly investigate the language through which those arguments are being made. He believes that current copyright restrictions, including DMCA and the TEACH Act, are limiting the potential of people to create new culture and ideas. Logie argues that the composition classroom, where students are taught about the social nature of composition, plagiarism, individual authorship, and intellectual property, is an important place to talk with students about the rhetoric, language, and arguments behind these debates and to teach them how they might argue for a copyright law that allows for the creative potential the Internet promises.

Quotable Quotes

“And while the stakes of intellectual property debates ultimately devolve to who gets paid how much and when, the mechanism for assuring fair compensation—a limited monopoly right—has profound consequences for the circulation and availability of cultural artifacts.”(8)

“Digital media offer opportunities to efficiently archive and access the bulk of artistic and intellectual work created since the dawn of humanity.

This is not an overstatement. The potential intellectual and social utility of these now-hypothetical archives is staggering. Our challenge is to engage in a principled argument about how best to achieve this goal. ” (21)

“[RIAA and other big media corporations] had persuaded most Americans that the act of downloading copyrighted material from the Internet—whatever the context and purpose—was illegal. This victory was achieved in large part because of the successful rhetorical strategies of the content industries. And once these industries had persuaded Americans that downloading was criminal, the logical next step was to ensure that it was perceived as

violent crime.” (66)

“The past decade’s major legislative amendments to copyright—in particular the Copyright Term Extension Act, the Digital Millennium Copyright Act, the No Electronic Theft Act, and the TEACH Act—collectively constitute a disastrous appropriation of rights, privileges, and opportunities formerly understood to belong to the public at large. At the very moment that the most powerful cultural tool in human history—the networked personal computer—has become both widely available and largely affordable, the U.S. is busily drafting laws that reinforce a copyright model optimized long ago for the circulation of print-based media.” (141)

Notable Notes

how ethos and pathos play into both sides of the debate, Burkean identification

no statistical significance on the economic effect of P2P sharing on record companies…Napster failed to show how most of its activity was not the theft of protected commercial property, but rather sharing of free culture for the public good

piracy = theft by force, kidnapping, murdering, violence

Napster, P2P file sharers aren’t targetted for downloading but for uploading – for distribution

sound quality of MP3 and CD – two different purposes

limits ability of cut and pasting with purchased Adobe e-books

Lessig, Free Culture

Lessig, Lawrence. Free Culture. The Penguin Press, 2004.

Lessig argues that current copyright law, coupled with digital technologies that allow big media corporations to regulate how their copyrighted content is used, is quickly eroding the public commons and our national tradition of a free culture. He uses an anecdotal, qualitative approach in this book intended for a general public audience, centering his argument on how piracy and property are defined and argued about. He focuses on peer-to-peer file sharing, showing that only a percentage of the P2P sharing that occurs actually is copyright infringement. Lessig argues that copyright law must adapt to the new technology of the Internet and be reduced in term and scope. He has lobbied (unsuccessfully) for the adoption of the Eldred Act, an act that does not change the long length of copyright protection given in the Sonny Bono Copyright Act of 1998, but does require copyright holders to register and pay a nominal $1 fee to renew their copyright. Lessig argues that copyright law with more formalities (digital registration and renewal), required renewal periods, a reduced term and scope for derivative protection, and a regulated compensation system to pay artists through P2P sharing is a copyright law that will restore the balance between protection and freedom, a balance that has been lost. He also advocates for authors and other creators of IP material to choose to protect their work under a Creative Commons license, a license that allows creators to extend the fair use of their work by others.

Quotable Quotes

“the future will be controlled by this dead (and often unfindable) hand of the past” – the problem with long copyright terms with uncertain owners, no one wants to risk expensive litigation.

“That while the Internet has indeed produced something fantastic and new, our government, pushed by big media to respond to this ‘something new,’ is destroying something very old” (13) – the tradition of free culture, copyright law and balance

“Free cultures are cultures that leave a great deal open for others to build upon; unfree, or permission, cultures leave much less” (30).

Notable Notes

importance of balance

allow for copyright protection for works that have commercial value. Since most of the works that are currently covered do not have value, free them up for cultural use

we need to teach our students to be producers of culture, not just consumers – this is hard in an increasingly copyrighted American world

copying – a central theme of both copyright and plagiairsm

corporations are using their political power to change copyright law in order to stifle Internet-based creativity, which will democratize the creative process and competition

43 million Americans do P2P sharing. Are they all criminals? The four different kinds of piracy, of P2P file sharing. HOw can it be good?

anticircumvention provisions of DMCA is restricting how we use content and be creative

May 31, 2009

Fisher et al, The Digital Learning Challenge: Obstacles to Educational Uses of Copyrighted Material in the Digital Age

Fisher, William, et al. “The Digital Learning Challenge: Obstacles to Educational Uses of Copyrighted Material in the Digital Age.” Berkman Center for Internet & Society at Harvard University. 9 August 2006. http://cyber.law.harvard.edu/publications/2006/The_Digital_Learning_Challenge.

This white paper explores how educational initiatives that use digital technology have been hampered or shut down due to copyright restrictions and common, usually conservative attitudes about  copyright regulations. After explaining some of the many challenges to using copyrighted digital technology in the classroom (TEACH Act restrictions, DRM technology, unclear fair use laws, costly rights or licenses, and cautious gatekeepers), they show how these challenges have specifically held up four different educational initiatives that they treat as case studies. The white paper concludes with some suggestions for reform, including opening up technology restrictions and access, developing educator best-practice guidelines that interpret fair use, and legal reform. The white paper is the end product of a year-long study with scholars, librarians, lawyers, and educators who investigated the relationship between education and copyright law.

Notable Notes

DRM – digital rights management (also TPM – technological protection measures) – technological encypting that allows manufacturers, publishers to control how their digital data is used, reproduced

case studies – 1. network for new history teachers to share lessons & materials (problem with the copyrighted works used in the creation of those lessons) 2. DRM technology interfering with how professors of film studies can use and select scenes from DVDs to screen in their classrooms 3. the creation of a database of American music (New World Records), subscribed to by libraries, meant to increase access and 4. new ways of distributing for public broadcasting stations don’t jive with their copyright allowances, which give them greater freedom to broadcast on TV

for digital technology to transform education, copyright law needs to be revisited.

different zones of the globe have different DRM encryptions so DVDs can’t be watched in other countries, allowing for movies to be released on DVD and in the theaters at the same time in different places.

May 29, 2009

American University Center for Social Media, The Cost of Copyright Confusion

American University Center for Social Media. “The Cost of Copyright Confusion for Media Literacy.” September 2007.

This code is designed to educate teachers and administrators about their right to appropriate fair use of copyrighted materials. Because fair use is misunderstood and there is a rampant fear of copyright litigation, educators don’t utilize all the possible resources they could when teaching and creating media literacy curriculum and limit their students’ own educational and creative, critical and productive projects. The authors of the code argue for teachers to educate themselves about their fair use rights and to create codes of best practices that can be used as guidelines for media literacy educators (hence the NCTE one.)

Quotable Quotes

different explanations of copyright protection and restrictions = “copyright folklore” – you need to know the law yourself and make your own judgments

Notable Notes

co-principal investigators are the same as those on the NCTE Code of Best Practices: Renee Hobbs, Peter Jaszi, Pat Aufderheide

Principles of media literacy education:

  • “All messages are constructions, created by authors for specific purposes.”
  • “People use their knowledge, skills, beliefs, and experiences to construct meaning from messages.”
  • “Different forms and genres of communication use specific codes, conventions, and symbolic forms.”
  • “Values and ideologies are conveyed in media messages in ways that represent certain world vies, sharing perceptions of world reality.”
  • “Media messages, media industries, and technologies of communication exist within a larger aesthetic, cultural, historical, political, economic, and regulatory framework”

fair use is an extension of 1st amendement rights; is critically important to educators

2 ways teachers cope with copyright and fair use: deliberate ignorance; hiding & trangression; hyper-compliance

methodology: interviewing teachers, producers, administrators, organizational leaders. All their names are in the back of the document.

NCTE, Code of Best Practices in Fair Use for Media Literacy Education

NCTE. “Code of Best Practices in Fair Use for Media Literacy Education.” November 2008. http://wwwdev.ncte.org/positions/statements/fairusemedialiteracy.

This guideline asserts educators’ and students’ rights to use all types of media for critical, transformative purposes. It defines fair use as a right, a right that is currently underused and understood because of fear of litigation at the administrative and individual teacher level. The code outlines five principles and allowances for fair use by teachers and students: 1. using copyrighted material in media literacy lessons; 2. using copyrighted material in preparing curriculum materials; 3. sharing those curriculum materials; 4. student use fo copyrighted material in their own academic and creative work; and 4. expanding who the audience can be for student media literacy work. The code argues that since fair use has not been strictly interpreted by the courts, teachers themselves can use their judgment for appropriate fair use.

Quotable Quotes

“Fair use is flexible; it is not unreliable.”

Notable Notes

fair use is that space between copyright and the commons

Peter Jaszi on the committee that wrote hte document

May 28, 2009

CCCC Caucus on Intellectual Property, Use Your Fair Use

CCCC Caucus on Intellectual Property. “Use Your Fair Use: Strategies toward Action.” CCC 51.3 (Feb 2000): 485-488.

Teachers often don’t use the entire scope of their fair use privileges because they are afraid of legal action against them and because their universities and printshops, also fearful of legal action, develop policies that are far more strict than copyright’s fair use allowances. The CCCC Caucus on IP argues that compositionists need to learn about copyright and fair use, lead discussions on their campuses and with their print shops about the purposes and scope of fair use, and encurage teachers to use fair use to enrich their pedagogy.

Lederman, Pushing the Envelope on Copyright Exemptions

Lederman, Doug. “Pushing the Envelope on Copyright Exemptions.” Inside Higher Ed. 30 Dec 2008.

Congress granted film studies professors permission to copy and assemble scenes from DVDs for use in their classrooms so they did not need to waste time skipping from scene to scene. Now, there is a move to expand this right (which is not allowed under current media copyright restrictions) to all teachers, regardless of field or level, for pedagogical purposes. Teachers are arguing that as literacy education becomes increasingly multimodal, it is essential for them to have the right to prepare the best materials for teaching their students.

May 26, 2009

Kolko, Intellectual Property in Synchronous and Collaborative Virtual Space

Kolko, Beth E. “Intellectual Property in Synchronous and Collaborative Virtual Space.” Computers and Composition 15 (1998): 163-183.

Kolko discusses the challenges of citing conversations from MOOs (like chat rooms.) These conversations are inherently responsive and recursive (making it impossible to pull one comment out of context), sit on the border between the private and the public (making it questionable whether the person is publishing their words to the whole world, and thus whether or not you can use it), are a hybrid of writing and speaking (also making it difficult to know how and if to cite this material), and have no stable author (use of pseudonyms.) Kolko tries to define how to cite MOOs (which she does in her paper) and what can be used for research through the framework of copyright law, but then, at the end  of her piece, argues that we need to stop using copyright law to determine how we treat these sources, instead looking at the nature of digital MOO collaborative conversations first.

Quotable Quotes

“Definitions of ownership and property fracture when we rethink the relationship of an individual contribution to a larger social space” (164).

Notable Notes

conflation of copyright and plagiarism. Asks two questions: 1. how do we assign rights/ownership to digital Internet conversations (often anonymous/pseudonymous) and 2. how do we cite these conversations – can we?

internet researchers don’t have to go through the same loops as in-person researchers, they can stalk these MOOs and pull off comments and conversations like a fly on the wall, not having to go through all the work

what kind of space is the MOO?

uses feminist theory to talk about the blurring of private and public spaces, collaborative ownership and authorship

Woodmansee and Jaszi, The Law of Texts

Woodmansee, Martha and Peter Jaszi. “The Law of Texts: Copyright in the Academy.” College English 57.7 (Nov 1995): 767-787.

Woodmansee and Jaszi show how the history of modern copyright is aligned with 19th century literary theory that privileges the solitary autonomous author, a theory that is currently outdated. Even though this theoretical foundation has shifted, copyright has not shifted with it, instead becoming even more restrictive. They argue that compositionists need to take the lead on framing and arguing for balance in copyright protection through 1. taking public stances on educational fair use and the extension of copyright protections and 2. changing their pedagogy from one that depends on the solitary author to one that teaches students about the collaborative, social nature of composing.

Quotable Quotes

“What is needed, in short, is an ethos of collaboration which would encourage students to acknowledge their debts, and a corresponding rhetoric of attribution to help them identify and name these debts – in place of the punitive rhetoric that is typically found in the chapter devoted to the research paper in our current composition textbooks and handbooks” (784).

“The intellectual commons on which we may draw freely as writers and readers, scholars and teachers, is shrinking fast” (772).

“The enclosure of the public domain” (772).

fear of “worldwide uncontrolled piracy” (from “Controlling Electronic Rights” Rights 6.2 (1992): 3-4.)

Notable Notes

extending copyright and restricting fair use – Kinkos photocopying case (does not recognize authorship as arranging and selection, Romantic understanding of the author); absolute 1st publication right restricts the use of unpublished materials

academic writers don’t need the protection of copyright for financial reasons, they write books for status, tenure, not direct profit, so they can turn to copyleft protection

May 25, 2009

Kiebowitz and Margolis, Seventeen Famous Economists Weigh in on Copyright

Kiebowitz, Stan J. and Stephen Margolis. “Seventeen Famous Economists Weigh in on Copyright: The Role of Theory, Empirics, and Network Effects.” Harvard Journal of Law and Technology 18 (Spring 2005): 435.

Kiebowitz and Margolis point out the assumptions and weaknesses in the brief 17 notable economists wrote collaboratively to support the Supreme Court case Eldred v. Ashcroft, which challenged the Sonny Bono Copyright Extension Act of 1998. The Court overturned the challenge, and the authors argue that the economists’ argument did not have any hard data to back it up and it did not offer a complete understanding of the purposes of copyright. Copyright is not merely exclusion; it is ownership, and ownership (through copyright) helps regulate production and prevents some of the negative impact of network effects. It isn’t just the copyright owner vs. the public commons good; copyright is more about protection (for the public good) than about exclusions.

Quotable Quotes

“Open access is not a universally preferrable way to manage a resource” (448).

“The copyright owner’s role is similar to the private owner of a natural resource that can be subject to crowding. In both cases, the owner tries to prevent dissipation of value through misuse of an asset. A rational owner would approve derivative projects that maximize his or her profits. Copyright policy must balance beneficial restrictions that constitute stewardship over resources against standard monopoly losses” (449) – then argues for the benefit of allowing paradoies, critiques

“copyright protects expression, not ideas” (449)

“A more complete view requires consideration of the responsiveness of creative efforts to marginal incentives and the function of onwership of intellectual property beyond the incentive to create” (449).

Notable Notes

only a small % of books, movies made from 1920s-1930s have current market value – the law doesn’t affect that many of them

the brief argued two things: 1. copyright extension doesn’t make economic sense, since the authors weren’t not creating because they didn’t have a super-long copyright protection 2. extra incentive has little real effect on the authors (*focused on the economic effect with royalties, not other effects) but imposes new and more restrictions and costs on new authors

the law – 70 years after death, 75-95 years for institutional authors, applied retroactively

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