Adventures in copyright

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A few events took place that affirmed for me that pushing forward with the agenda to rid our room of copyright violations and plagiarism is the right course of action.

I'll say this first: it'll be a long journey and this project was just a start. I'm certain we've got some accidental plagiarists and copyright violators in our room. That's OK, though. Really. This is a safe place for us to fail. I've been reading David Perkins's book Making Learning Whole and I feel good about this project we're finishing up and the one we're starting tomorrow. We're doing what Mr. Perkins refers to as Junior Varsity games. Students are researching, synthesizing, and creating--and doing all the parts involved in that process--but at a small scale. We haven't taken anything out of "the game"; instead, we're practicing the whole game over and over. The point is that if some has plagiarized or violated copyright, we'll be able to learn from it. They won't get kicked out of school or flunk my class. We'll be able to evaluate what went wrong and where we can go right in the future.

So, their projects are due tomorrow, but many students were done today. Perfect. We had time, then, to look through what they planned on turning in. "Where did you get this information?" "Was this picture CC licensed?" If they didn't know, hadn't written it down, or the images were copyrighted, one of our class mantras came into play: don't be lazy. There are no more thoughts of, "Oh well, just dock my grade." We're at the point where grades aren't on anyone's mind. We're about the process. "Fire up a laptop and let's find some CC pictures!" We have 3 computers in my room, but with so many students using them for the same reason--finding images--they were working 3 or 4 to a computer.

While talking about CC images, one of my students just could not wrap her head around why someone would not want other people to be able to use their images. Most of the other students agreed with her. I'm right there, too. I guess I can see someone whose job it is to take pictures not wanting other people make money off their work, but that's what the CC 3.0 license is for. I don't know. I'm sure there are cases I'm just not seeing.

One student had found the perfect image of some Egyptian jewelry, but when we went to the site she had written down, it had an "all rights reserved" tag at the bottom. We went digging for a CC licensed image, but couldn't find anything (they're researching Ancient Egypt.) Let's roll the dice I thought.

"Hey, there's an email address on this page. It wouldn't hurt to send them an email and ask if we can use their image."

"Guys! Mr. G's going to email this web site!"

Two hours later, I got a response giving us the go-ahead. I can't wait to tell my kids tomorrow.

After school got out, I had to zip across the street to the public library. While I was there, I figured I'd ask some of the questions my kids had about copyright to the librarians. While they couldn't provide much for answers besides "It's education so you should be good to go," they were extremely impressed that I'm digging into copyright with my kids and not just pretending like it doesn't exist. Besides just feeling like it's hard to "teach" my kids about copyright because I don't know much about it and there seems to be so much gray involved, I hadn't thought about how I would be doing them a disservice by ignoring it altogether.

Today really convinced me that I need to trudge on. Besides these two projects this quarter, we're going to hit research really hard fourth quarter. I think by then, the kids will really be ready to embrace creator rights. My goal is for them to choose their own CC licenses for whatever it is they create.

This article was originally posted at Learning is Life and is reprinted with permission.

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Russ Goerend
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Russ Goerend is a sixth grade language arts teacher in Waukee, Iowa. Currently in his third year teaching, he works to make his classroom as authentic as possible for his students.
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Unidentified | January 20, 2011
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If you aren't teaching the children THEIR rights under copyright law, you are doing them a real disservice. "Fair use" (for EDUCATIONAL purposes, like the librarians told you) is enshrined in law and precedent.

Learn their rights first. Then help them use them.

There is no reason, no reason at all, to restrict their legitimate rights under copyright law.

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Jesse | January 20, 2011
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According to the *IAA and the AP there is no such thing a fair use.

second - EVERYTHING is copyrighted by default now. And being
unable to identify the copyright owner still doesn't give you the
right to use it.

The default is ALL RIGHTS RESERVED. And that includes fair use.

EVEN IF YOU THINK it is fair use, you can't tell. Only a court can
definitively say if it is fair use.

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Unidentified | January 20, 2011
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Fair Use rights cannot be reserved by the copyright owner--they are not his to do anything at all with. Fair use rights are the privilege of the public. The vagueness in the law works both ways--a copyright owner cannot tell you something is NOT fair use, only a court can do that. The courts have acknowledged the importance of pursuing fair use rights in court: it is a public service.

Teachers need to be serving the public interest, ESPECIALLY as fair use rights are specifically written to ENCOURAGE material to be used for educational purposes.

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C. Whitman | January 20, 2011
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It's true that the RIAA, MPAA, and to a somewhat lesser extent the AP tend to be extreme about their views on copyright. However, fair use is reasonably well defined in Title 17, and is usually what common sense would tell you.

Even the RIAA recognizes some aspects of fair use. For example, they don't object to people using medium to low resolution images of album or single covers to refer to those recordings because they know that these images help promote the recording involved.

It's true that usually even an image with "all rights reserved" can be placed <em>with proper attribution</em> in an educational document as long as no commercial use is made of the image.

"All rights reserved" definitely does not include fair use. The reason for this is that "all rights reserved" means all rights that can be legally withheld under applicable copyright law are so reserved. Fair use rights cannot be legally withheld from people under Title 17, so they are not part of the rights that can be reserved.

It's true that specifics for exactly what constitutes fair use in any given situation cannot, by the very nature of the principles involved, be clearly defined by the law. The law does clearly state, however, that fair use exists. Usually common sense about how much of the material is used and whether it adds to any commercial value of the new material or detracts in any way from the commercial value of the original material will give you a pretty fair idea of whether it's fair use or not.

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Jesse | January 20, 2011
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But you can't use common sense to identify it.

Because the law is vague, fair use is strictly an opinion.

When made by students/instructors/public, that counts as "uninformed opinion". Even lawyers will avoid giving an answer - the closest they will give is a "should be", "could be", or "can be" but they will not give "is".

Which is worthless for a defence.

The instructor is taking the best way he can. And I think that is the most commendable path.

The only think I would add to the usage, is a "used with approval" and make sure a lawyer has a written approval notice for anything used.

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Rebecca Fernandez | January 21, 2011
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Russ is writing from the perspective of a *teacher*. Perhaps he's thinking in terms of teaching students about copyright in the real world, not in the world of education. In their daily lives and in the future, they will not be able to rely on fair use for most projects. They'll need to learn about copyright at some point, and it looks like Russ is starting now with laying down those real-world expectations.

Most of us can't claim fair use most of the time. So we need to use Creative Commons, license material, or request permission to use it. I think it's great to show kids the benefits and drawbacks of each approach.

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EricSt | January 21, 2011
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Ms. Fernandez, I certainly agree with your main point, that it is a question of "What should be taught about copyright?"

I guess I just do not like the notion that we start from a place of extreme deference to rights holders. At its core, copyright is a <strong>tradeoff</strong> between the rights of the holder of the copyright and society at large. We, the society, permit a <strong>limited</strong> monopoly <strong>for a purpose</strong>. It's a form of social contract, really. Copyright is not inalienable in its essence.

I am not sure about your statement "Most of us can't claim fair use most of the time." I think that most of us, in our real-world ordinary private lives, probably can properly claim fair use much more of the time than we are commonly led to believe. As a simple example, I do not believe I violated your copyright in quoting a portion of what you said for the purposes of this discussion. That's fair use. [Yes, I realize it's actually potentially a more complicated issue because of this website's additional Terms of Use]

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Rebecca Fernandez | January 21, 2011
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<< I do not believe I violated your copyright in quoting a portion of what you said for the purposes of this discussion. That's fair use. [Yes, I realize it's actually potentially a more complicated issue because of this website's additional Terms of Use] >>

In fact your comments at opensource.com fall under the CC by SA license. :)

I suppose what I was thinking of is that he's training the kids to create reports and the like. If I'm creating a report for my job, I can't typically grab an image off the web and claim fair use. (Admittedly I don't know a whole lot about fair use, so maybe I'm mistaken. But every time I've tried to figure out if something is fair use, the criteria always sounds so subjective.)

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C. Whitman | January 21, 2011
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"If I'm creating a report for my job, I can't typically grab an image off the web and claim fair use."

You're quite correct (well, unless perhaps you're a teacher :-) ). That is, you can't use an entire image at full resolution in a report. On the other hand fair use would cover something like your taking a picture of someone sitting at their computer with the screen in view and a web page with an image on the screen. You may be able to make out the photograph inside of your photograph, but it's not the same as having the original picture.

Also, although fair use has a lot more leeway in education than it does outside of education, I agree that you have a point that making students conscious of this difference by selectively making them adhere to the stricter requirements of a non-educational setting could be of benefit as a teaching tool.

It should also be emphasized that when it comes to writing, the difference between plagiarism and fair use is often attribution or lack thereof.

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Jesse | January 21, 2011
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"We, the society, permit a limited monopoly for a purpose. It's a form of social contract, really. Copyright is not inalienable in its essence."

Yeah sure. life of the author + 70 years.

check http://copyright.cornell.edu/resources/publicdomain.cfm
for a lot more details.

Some "limited monopoly".

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EricSt | January 21, 2011
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The terms of copyright are subject to change. Recent trends toward extending the length of copyright are reversible, if we the public demand it. I, for one, welcome the debate. I believe that current copyright terms are skewed far too heavily in favor of copyright holders, and actually do damage to the stated Constitutional reason for even having copyright laws in the first place: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries".

This also illustrates the difference between so-called "intellectual property" and real property. They are not the same thing at all, under law. Nobody's house or land reverts into the public domain some period of time after they die.

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Russ Goerend | January 21, 2011
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Do you have any links you could share that could help me get a grasp on fair use in my classroom?

One of the reasons I jumped to Creative Commons-licensed materials is because (for some reason) I thought that we could get in trouble in regard to fair use if the students posted their projects online. I thought fair use only applied <b>in</b> the classroom and that once what we were doing left the classroom, we would need permission -- whether in the form of explicit permission from creators of copyrighted material or via CC licenses.

I'm definitely here to learn, so I'd enjoy any information you can give me about what I should be teaching my students in regard to fair use.

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Jesse | January 21, 2011
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And it has references at the end.

http://home.earthlink.net/~cnew/research.htm

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Russ Goerend | January 21, 2011
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I appreciate it. I will start digging through that with my students.

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C. Whitman | January 21, 2011
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If your students are posting projects to a publicly accessible Web site, then the extra leeway for fair use given for educational purposes most likely doesn't apply. If the site is only accessible to students and teachers, then it would still apply.

Fair use does exist outside of educational purposes, but not to the same extent. Here is the relevant portion of US copyright law.
http://www.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000107----000-.html

You can see why people feel that it's vague, yet it seems like it should be clear enough in most situations.

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Russ Goerend | January 22, 2011
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@C. Whitman and EricSt

Thank you for the help.

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EricSt | January 21, 2011
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My personal advice, is to start with the history of copyright, particularly under English law. For example, one of the reasons the Geneva Bible and its later derivatives was so popular here in the early US was because the British Crown owned the copyright on the King James version (still does, for that matter!). This was a pretty big issue in the early US. <a href="http://www.arl.org/pp/ppcopyright/copyresources/copytimeline~print.shtml">This is a good short introduction</a>.

Then, look at the Constitution (Article I Section 8), and what Title 17 of the US Code have to say. <a href="http://www.copyright.gov/laws/">This is a good place to start</a>. Also, specifically, <a href="http://www.copyright.gov/title17/">this</a>.

Lastly, in the practical section, you can talk about <a href="http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-b.html">the four factors</a>. You can <a href="http://en.wikipedia.org/wiki/Fair_use#Common_misunderstandings">take an indirect approach</a> to the subject, since it is so complicated. You can refer to <a href="http://www.eff.org/issues/intellectual-property">public groups doing</a> work <a href="http://www.ala.org/ala/issuesadvocacy/copyright/index.cfm">in this area</a>.

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Jesse | January 20, 2011
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ALL of them have already put out lawsuits for ANY use.

We, as the public/students/whatever, can no longer tell what is fair use. The AP claims even using 5 sequential words is a violation.

Only the court system can determine fair use - and that is an expense that the public/students/whatever can't afford.

You can SAY fair use exists... but unless you verify/validate with a lawyer AND get permission.... you are subject to a lawsuit.

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EricSt | January 20, 2011
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Umm, no. You are subject to a lawsuit regardless of who you consult. Thinking you are in the right, legally, has nothing to do with being subject to a lawsuit. Even *being* right, you are subject to a lawsuit any time a person or some fiction-of-a-person corporation disagrees with you.

So, the question then becomes, do you consider exercising your fair use rights unwise? Personally, I would say that capitulating your proper rights due to fear of powerful interests is a rather dangerous thing to do.

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Jesse | January 20, 2011
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even when you win.

I can't.

I'm sure the school can't (or won't).

I know the instructor can't.

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EricSt | January 20, 2011
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Again, the way the system works, you can be sued for just about any reason whatsoever. To think you can avoid being sued is simply a false premise. To paraphrase (or possibly quote) Benjamin Franklin, "Any society that would give up a little liberty to gain a little security will deserve neither <strong>and lose both</strong>." [emphasis mine]

This is why organizations like the ACLU and EFF are so very important. At least if you actually have a good legal case with value for establishing legal precedent, you might not be defending a fair use case alone. If you do not like the way that the system is being abused by those with power, contributing to the aforementioned organizations is an effective way to keep the monied interests in check. Cutting into the revenue stream of copyright abusers by not buying their product and encouraging others to do the same is another ethical way to starve them of the resources to be abusive.

If one's school and its faculty were unwilling to fight the good fight with respect to fair use in an educational setting, I would say that is cause for very deep concern.

The truth is, in a democracy, both government and corporate interests ought to fear the people. Copyright and other so-called "intellectual property" reforms are coming. The more abusive the system is seen to be in the lives of ordinary people, the more pressure will mount for change.

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Jesse | January 21, 2011
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You cannot travel freely any longer - you can try hitchiking, but not on interstates; you get picked up by the police as it is now illegal.

You have to have travel papers if you are going to fly or go by rail.

You CAN still walk. But not by interstates.

You are subject to arrest without warrant, or probable cause, not allowed to know why, nor are you allowed counsel (the so called "patriot act"). And with the "national security" papers, anyone can be taken on just some bureaucrats memo.

Now back to the subject of copyrights... you are not even allowed (in some jurisdictions) to even tell others WHERE information is without a "copyright infringement" - AP, NY Times. Will the catch you? not always, it depends on whether they think they can get money out of you or make bigger PR noise over it.

Fair use used to include the ability to copy records you owned so that you could preserve the purchase. Not any more. DVDs and the corporations behind it have destroyed that. CDs can still be copied... but not according to the corporations.

Fair use used to include actions that would be infringement if done for profit, but not when done for the purposes of preservation. No longer. Read your windows EULA - there is no fair use. It is no longer possible to make backups (beyond one copy). And if you try to use that backup to recover from a dead system by putting it on an equivalent system... it won't work. You are now a thief.

We no longer have a shared culture - we have a manufactured culture for rent.

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Jesse | January 21, 2011
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You cannot travel freely any longer - you can try hitchiking, but not on interstates; you get picked up by the police as it is now illegal.

You have to have travel papers if you are going to fly or go by rail.

You CAN still walk. But not by interstates.

You are subject to arrest without warrant, or probable cause, not allowed to know why, nor are you allowed counsel (the so called "patriot act"). And with the "national security" papers, anyone can be taken on just some bureaucrats memo.

Now back to the subject of copyrights... you are not even allowed (in some jurisdictions) to even tell others WHERE information is without a "copyright infringement" - AP, NY Times. Will the catch you? not always, it depends on whether they think they can get money out of you or make bigger PR noise over it.

Fair use used to include the ability to copy records you owned so that you could preserve the purchase. Not any more. DVDs and the corporations behind it have destroyed that. CDs can still be copied... but not according to the corporations.

Fair use used to include actions that would be infringement if done for profit, but not when done for the purposes of preservation. No longer. Read your windows EULA - there is no fair use. It is no longer possible to make backups (beyond one copy). And if you try to use that backup to recover from a dead system by putting it on an equivalent system... it won't work. You are now a thief.

We no longer have a shared culture - we have a manufactured culture for rent.

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Ian H | January 20, 2011
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In the US people clearly fear government and corporate interests, and fear a legal system that empowers only the rich. So does this mean the US is not a democracy? Government of the people, by large corporations, for large corporations. Just remind me what that system is called again?

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Katherine | January 20, 2011
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Numerous fields of law were purportedly formed to protect creators, and were then used to protect corporate interests.

As an artist you want visibility. In the article the question is asked, "Why someone would not want other people to be able to use their images." When you have the support of parents, a marital partner, or a profitable profession, you can afford to be generous. You can afford to give away your images in order to achieve visibility.

However, not everyone has that kind of support. Many people need more time than a career would give them in order to develop their art. Therefore, it is vital that they receive some sort of financial recompense from people who use and enjoy their creations.

Try living for awhile as a struggling artist and you will understand why the RIAA and MPAA can be so seductive to creators. Very few fields of work practically demand you give your hard work away for free. Do bricklayers build a wall, then hope someone will give them a donation if they appreciate its existence? Do accountants calculate your returns and trust you will decide to give them fair recompense for their time? Even Linux dudes expect to be paid for customising and maintaining their OS on other's computers, even if they are giving away their work on the OS itself.

People clearly enjoy music, images, articles, and stories. We want these things. People who produce these things have to spend many years refining their skills. Just because you can read doesn't mean you know how to structure a plot. Just because you can pick up a pen doesn't mean know how to create pictures with correct perspective and shading. Just because you can hum a tune, doesn't mean you are capable of a vocal trill. Just because you can walk doesn't mean you can execute a grand jete.

It seems easy because artists have worked hard at making it look easy. They have often achieved apparent effortlessness at the cost of time, money, effort, and life. I could send you a list of the many things I have gone without that many people take for granted, in order to serve my art.

We need shared culture. We need to be able to talk about culture as per "fair use". We also need to ensure that artists receive fair pay for their work, if that is what they want.

Tell your students THANK YOU for asking before using things. Many of us appreciate the effort.

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Rebecca Fernandez | January 27, 2011
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Does any of the kids' work count as "fair use," do they get to claim fair use for classroom purposes, do they have to ask permission for practice, etc.? I'd love to hear what you ultimately decided.

And do your kids know their teacher kicked off an Internet debate over fair use and copyright? :)

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Russ Goerend | January 27, 2011
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I'm still wrapping my head around all of the ideas and conversation here.

I shared the link to this post with all my students on Edmodo, but I haven't heard any of them talking about it.

Once I wrap my head around this, I'll stop back and share.

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Jesse | January 27, 2011
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When the work is used in school, it is "nearly always" considered
fair use. If the work is posted outside of school, the result is "sometimes".

The problem is that the school context can be extremely variable: school web site? school class web site? homework web site?... What happens if the same work is published via school web site AND personal web space? Are they both "fair use"?
or neither?

And that makes it nearly impossible to do anything.

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Karsten 'quaid' Wade | February 9, 2011
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This all reminds me of a session I was in at the <a href="http://cue.org">Computer Using Educators (CUE)</a> conference a few years ago. The presenter from <a href="http://iskme.org">ISKME</a> asked the educators about how they source and attribute materials. Based on self-voting on pieces of paper, most people used all manner of resources in their classrooms downloaded from the web, but fewer than 50% of the people agreed with the phrase, "I check copyright to see if I have permission to use a work." Most marked another paper with, "I believe copyright materials can be used in the classroom as fair use," but people who spoke up admitted they didn't know what that really meant.

I've seen some nice analysis tools and presentations on the web, here are a few that are valuable. If I recall any others, I'll post them back to this discussion.

http://www.lib.uconn.edu/copyright/fairUse_Tools.html

http://www.lib.uconn.edu/copyright/index.html

http://cyberlaw.stanford.edu/fair-use-project

Here's one analysis tool that I haven't done more than play with:

http://www.lib.umn.edu/copyright/checklist.phtml

Spend a few minutes hunting around, then a few more reading, and you'll find quite a bit to teach the class.

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