Whether we’re aware of it or not, the doctrine of “fair use” built into copyright law is one of the most important protections available to scholars, librarians, and students. Every time you quote from someone else’s work, every time you photocopy an article for a student, every time you read a passage aloud to your class, you are technically in violation of copyright.
The reason that an army of publishers and FBI agents aren’t smashing down your office door is that U.S. jurisprudence has long understood that a totalizing approach to copyright would be disastrous. Fair use is the only way we as individuals can together do what is fundamentally a collective endeavor, scholarship, in an information ecology that otherwise lives and dies by the intensely individualizing force of the marketplace.
But fair use has been carrying a heavy load lately, and it’s starting to show its limitations. Over the last few decades and especially amid the recent “copyright wars,” a powerful new philosophy has emerged: Rather than seeing copyright as a careful balance between the interests of private owners and the public, powerful content industries have argued that robustly protecting private interests is always the best way to serve the public. It’s the trickle-down theory of knowledge: Give the power to the producers and get out of the way, and it will eventually get to everyone who needs it. And digital technologies have handed copyright owners further power to regulate the use of their work, to further commodify information in ways never before imagined.
While most of us in higher education are little content industries ourselves, we should not be seduced into forgetting our role first and foremost as the keepers, distributors, and developers of our society’s body of public knowledge. We must fight for the promise copyright made to the public: All these economic rights are only in the service of intellectual progress. However, our rhetorical arsenal in this battle seems to be only to trot out fair use, i.e. the right to violate copyright for progressive reasons. Technical copy protection? Don’t forget about fair use. Restricting peer-to-peer networks? Don’t forget about fair use. Suing our students for downloading? Don’t forget about fair use. Automatic permission systems in educational courseware? Don’t forget about fair use. It’s a wonder the poor statute can barely stand, considering how often it is invoked as defense, criticized as folly.
This dependence on fair use, to somehow safeguard all of the myriad “public interest” elements of copyright’s balance, risks crushing it altogether -- no more so than in the pending battle around Google Book Search.
For those who don’t know, the search engine giant recently announced its aspiration to digitize every book ever printed. To do this, it partnered with the university libraries of Stanford, Harvard, Michigan, and Oxford, and with the New York Public Library. Together they have already begun the process of digitizing works whose copyright protection has run out -- right now, those published before 1924. These books would be full-text searchable and could be read in their entirety online, for free. For more recent books still protected under copyright, Google intends to digitize and make them searchable as well; however, the text returned in response to the search query would only be a short excerpt around the located word or phrase. Publishers who don’t want their work to appear at all can opt out of the system. Links will lead users to vendors where the book in question can be purchased.
To be clear, Google’s project does require making copies of numerous copyrighted books, and an unauthorized copy at that. Google says this copy is a fair use. And in lawsuits brought in September and October of 2005, the Author’s Guild ( complaint) and the Association of American Publishers ( complaint) argue it is a violation of their rights, and an attempt to unfairly capitalize on their work.
Unlike battles around digital music that have occupied the courts’ attention of late, this case will be of vital importance for the academic community. What is at stake is the possibility of a digital database of all written knowledge, and the question of who gets to produce it and under what conditions. Some think this is the Library at Alexandria finally realized; others think it's risky to have just one company running the stacks. But the case will live or die not on the question of the value of such a database to users, but on the narrower legal question of whether Google has the right to scan the books to begin with.
Perhaps this case will settle -- Google certainly has the funds to do so if it chooses. If it does get heard by the courts, what is of greatest importance, I believe, is how well the doctrine of fair use can carry the weight of this particular dispute. Lawrence Lessig has argued that fair use is being stretched thin because copying is so fundamental to the digital environment; uses that never even rang copyright’s bell, because they now require a copy to be made in the process, find themselves under legal scrutiny. I believe this is true. But fair use has already been pulled in too many directions, well before the Internet stretched it to its breaking point.
Fair use has a century-long history in U.S. courts, as a handy way for judges to stave off copyright claims when the use in question is socially valuable. At first, it was a way to protect small amounts of copying for the sake of criticism; as Justice Story noted in Folsom v. Marsh (1841), “no one can doubt that a reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purposes of fair and reasonable criticism. On the other hand, it is as clear, that if he thus cites the most important parts of the work, with a view, not to criticize, but to supersede the use of the original work, and substitute the review for it, such a use will be deemed in law a piracy.”
As such, one of the important criteria used by the courts to judge a use fair has been whether the new work is “transformative,” rather than merely replacing the old. The most famous of these is Acuff-Rose v. Campbell (1994), in which a surprisingly culturally savvy Supreme Court found that 2 Live Crew’s sampling of the Roy Orbison classic “Pretty Woman” was a kind of parody, however crude, and should be protected as fair -- it “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”
However, when fair use was finally codified in 1976, the primary motivation was not to protect criticism or parody but to accommodate the increasing use of the Xerox machine, particularly in education. University libraries did not want to risk liability when they made copies of journals and book chapters for faculty and students, and aggressively lobbied Congress for some legal protection to do so. When fair use became law, it included the four factors that had developed through court precedent, but also specified “multiple copies for classroom use” alongside parody, criticism, journalism, and scholarship as the likely contexts for the use to be considered fair.
Making multiple copies of an article for use in the classroom does not claim to produce a new work, in the way that sampling Orbison’s tune does. The value of the use is not that it is “transformative,” but that it is “distributive.” Now fair use is saddled with two aspirations. If the first understands that new work often needs to lean on and borrow from existing work, the second understands that the market mechanisms and distribution technologies that circulate work do not always achieve the scope and access we would like, or that other socially valuable activities require.
The courts have since used fair use in this ‘distributive’ sense, allowing cable TV to retransmit copyrighted broadcasts to audiences who could not otherwise receive them, prohibiting Kinko’s from producing course packets without paying a fee but leaving open the possibility that universities could do so as long as they do not enjoy direct commercial gain, and most notably in Sony v. Universal (1984), granting VCR manufacturers immunity to copyright penalties because some VCR users do make unauthorized copies of protected movies. The court argued that users have the right to record shows in order to watch them at other times, that this in fact “enlarges the television viewing audience” -- even the beloved Mr. Rogers testified that he wanted public school teachers to be able to tape his show and show it in class the next day. Again, these fair uses are not transformative, but distributive.
Is Google’s book search project fair use? This was the question vigorously debated, but by no means settled, at the recent “Battle over Books” debate at the New York Public Library and the blog-off that followed. Most copyright watchers largely agree that, if it makes it to court, the legal answer will come down to a battle of precedents. (See, for example, Jonathan Band’s “The Google Print Library: A Copyright Analysis.”) Google will come out on top if the court sees the case as akin to Kelly v. Arriba-Soft (2003), which allowed an image search engine to copy images from the Web so as to make thumbnail versions available to user queries.
The publishers and authors will likely triumph if the court turns to UMG Recordings et. al. v. MP3.com (2000), where MP3.com was found to be infringing when it made single copies of 400,000 CDs in order to stock a digital locker from which users could stream music they could prove they already owned. Google needs fair use to accommodate an activity that is neither “transformative” in the classic sense, or “distributive” in the Sony sense. Neither precedent did either, and the solutions were work-arounds to force the square pegs of searching and streaming in the oddly-shaped hole fair use offers them.
Let’s give fair use a break by sending in a legislative relief pitcher, one that can better allow for the role search engines play in facilitating the circulation of digital information. If fair use has been protecting both ‘transformative’ and ‘distributive’ uses, today we need a statute that can cover the kind of “indexing” uses that Google is after.
If we recognize that the Internet offers us the chance to make much more of our society’s culture and knowledge available to more people, and we recognize that to make this massive resource most useful requires ways to navigate and search it, and we further recognize that search engines like Google need to make copies of that work in order to make it searchable, then we have a genuine and reasonable public interest in ensuring that that they and others can do so. At the same time, we should also ensure that doing so doesn’t undercut the possibility of selling these works, and ideally should help their sales.
The publishers’ concern is not that Google shouldn’t make books searchable, but that they should have to pay a fee to do so. Such a fee represents the compensation not for lost sales, but to match what they might have earned had they provided this search function themselves. So let’s imagine that they do just that; Harper & Collins has already announced that it will develop a digital database of their books, following the lead of academic journal publishers like Sage. We could decide that this is a reasonable exploitation of one’s copyright, and forbid Google from building a library.
What this is likely to produce is a bunch of different, publisher-specific archives, all searchable under different criteria in different ways, all with different rules for how much text you can view and under what conditions -- and price. Smaller publishers will be less able to afford to do any of this, so once again we will be incidentally privileging those represented by the larger publishers when what we want is all work to be as available as possible.
And all publishers will be in a position to exclude some of their works from public view, for whatever idiosyncratic (or, more likely, financial) reasons they fancy. Perhaps someone would develop a meta-search that could query many of these archives simultaneously and return the results together -- in all likelihood, it would be Google. But this does not solve the systemic problem posed by letting publishers also govern access to their content.
What I think we’re after is something more straightforward, but nearly impossible to achieve. In this dream scenario, every author would make his or her work available in a digital form that is searchable but cannot be redistributed, in a widely compatible format, marked with the same kinds of metadata. We wouldn’t need Google Book Search, because these book “footprints” would all be online and available for searches just as Web sites are. But this is certainly an unreasonable and prohibitive request to make of authors, at least right now. For all intents and purposes, this is what Google seems willing to provide for us, with the promise of some ad revenue in return. As a less than perfect version of that ideal, it’s quite good.
Waiting for fair use to shield this expanding range of uses is slowing the innovation in information, knowledge, and culture the Internet seems ready to facilitate. And every time it does, we risk a court setting a retrograde precedent that cements digital culture into place for good. We need a new statute that acknowledges and accommodates the common sense recognition that search is good, that it requires incidental copying, and that it should not be left to individual, competing publishers to make their work part of the public trust.
In a moment when we are handing content owners much more control not only over the use of their work but over access to it, we need to make a parallel commitment to ensuring and expanding access of a different kind, as an aggregate collection of all things thought and written that can be easily explored. And, we need to let fair use protect the activities it’s designed to protect, instead of letting it fray as it stands in as the only protection against a locked and licensed digital world.
Tarleton Gillespie is an assistant professor in the Department of Communication at Cornell University, and a Fellow with the Stanford Law School Center for Internet and Society.
I’ve heard many a student excuse for missing class: flu of one type or another, early escape to Mexico the day before spring break, the old high school’s homecoming, even a stint in jail. But recently one surprised me, not so much in its originality -- a car fire, though that was a new one -- but in the evidence offered.
Terry is a grad student at my university who drives 130 miles each week from Interlochen Arts Camp to Grand Rapids for a night class. One Monday he e-mailed that a car problem might result in his absence the next day. Attached to his text was a series of numbered digital photographs taken just hours before: No. 127, his car, smoking alongside the highway; No. 128, from 20 yards further back, the burning car, flames engulfing the left side; No. 142, a firefighter, gazing at the blackened shell; and No. 143, in a creative denouement, the burned-out car being hoisted by a wrecker.
Clicking through Terry’s sheaf of jpegs was a welcome diversion from the steady stream of more mundane e-mails that fill my day, and the break prompted reflection on the Internet’s effect on daily academic life. Ask most faculty about the general impact of computers on their teaching and you will still hear more reports of in-class technology disasters than grumbles about e-mail; of electronic malfeasance (everything from easy plagiarism to text-messaging during an exam); of fears about being replaced by online instructors; or, if they are virtually savvy and have authored their own online curricular materials, of having their intellectual property appropriated by the university.
But read a batch of evaluations by current students, and you will find complaints about Professor Luddite never answering e-mail. Who cares anymore about seldom-kept office hours? Faculty are now expected to be on-call electronically -- if not quite 24/7, like transplant surgeons, then certainly far more than under an old paradigm that assumed availability to students only during class and office hours, scheduled or by appointment. It is e-mail, finally, that is the main engine behind ever-burgeoning demands.
Not so long ago you could display your techno-awareness just by printing an e-mail address on a syllabus. Want to impress your students today? You’d better send immediate answer to e-mails arriving sometime during Jay Leno’s monologue. (They’re probably watching Jon Stewart or playing online poker, but that’s a topic for another essay.) Outside readers of Professor Luddite’s course evaluations, though, should interpret student gripes skeptically. Or do I alone receive late-night messages from students posting second messages sent at 2:32 a.m. anxiously asking whether I had received the first, sent at 11:45 p.m.?
Even the most ordinary academic tasks have taken on new levels of complexity. A once-innocuous instruction, “Your final paper is due in my office by 5 p.m.,” now unleashes floods of e-mails with attachments, all bearing pleas to assure the senders that you received the papers. My answers often generate subsequent messages of “thanks” and requests for final grades. And recently I have had to warn students that the university’s spam filter, which has spared me thousands of offers for penny stocks and generic Viagra, may also weed out their messages from Yahoo or Hotmail.
“Be sure to make a copy of your essay,” my teachers from another century sagely advised. Occasionally I inflicted eye strain on those last-century academics via faded typewriter ribbons that have happily dissolved into the past. Today, I print off student texts on a networked laser printer, texts that are visually sharp, however fuzzy the thinking.
If I’m distracted, though, or if I’m tired, there’s a chance that otherwise-convenient attachments will be virus- or worm-ridden, making life hell for days, even weeks. Student codes drone on about punishments for plagiarism. To my mind purveyors of malicious computer code (however innocent they may be) also deserve draconian treatment. Caning might be sufficient, though confiscating the offender’s X Box would be more effective and better fit the crime.
As student e-mails grow more frequent and address increasingly trivial matters, professors are less able to keep up with the volume. I don’t personally know any faculty who use instant- or text-messaging with their students -- “DO WE ND 2 RD CH 6 FOR QZ 2MORO?” -- or who print their cell phone numbers on a syllabus. I suppose some of my Gen X colleagues might. Like enthusiastic young professors at small colleges who say, “Here are my home number and address. Drop by anytime to talk,” they’ll learn to regret it.
The effect on faculty life of this new communications urgency can be felt across many arenas, even those that serve as escapes from the ever-growing demands of student-consumers.
Fifteen years ago the most animated discussions at faculty cocktail parties were about computers. Simply mentioning your new “machine” would override the usual academic gossip. Now I envision hosting a party with a laptop visible on a table: conversation bubbles, Pinot Noir flows. ... How long, I wonder, before someone asks about wireless access and decides to check her e-mail?
Even brief escapes to professional conferences have been spoiled by new pressures to monitor overstuffed virtual mailboxes. For several years now at Modern Language Association conventions, technolust combined with an obsessive need to “check in” has shortened lines at the bars but created long queues at e-mail kiosks. At least the wireless Internet currently available in most hotels has improved the electronic comfort level. One can loll on a king-sized bed, cocooned in the hotel’s terry cloth robe, sipping coffee while fielding queries from anxious students and e-mailing friends at the same conference. Or, if you are in certain trendy disciplines, you can “attend” a conference online -- though that would force you to stay home, deprived each night of turndown service and the before-bed mint.
The next technological wave promises podcasting of our lectures and discussions, and some schools have already contracted with Apple’s iTunes. “Our students are digital natives,” says one University of Missouri official. “We seek to meet our students where they are and iTunes is the interface with which most of our students are already familiar.”
Where once it seemed students would be content only when they could park their cars inside the classroom, today they want faculty (and the knowledge conveyed in their classrooms) as available as 24-hour cable.
Of course, regular e-mailing between faculty and students fosters overfamiliarity, chipping away at the deference many academics used to take for granted. A dean at Georgetown recently told The New York Times that the tone students often take in e-mail is “pretty astounding, with a familiarity that can sometimes border on imperative.” (He may have meant “impertinent,” but no contemporary university administrator would dare use that term, holdout from the British Empire that it is.) One might also argue that annual tuition in excess of $25,000 fuels a sense of student entitlement. In this world, faculty are the “servants”; but the trend is not limited to private universities and pricey colleges.
This e-mail frazzled academic can rationalize one consolation. When my students receive nearly immediate e-response, they are at least one step away from the impersonal world of much university education. The contact may be virtual, not face-to-face, but the effects can still be impressive. If your college uses a program like BlackBoard, try the online chat option for real-time “conversation,” especially near a paper due date. After one of these sessions you’ll see a marked improvement in the quality of work submitted.
Late-night virtual office hours are not so bad occasionally when you are at home and sipping on a beer. And however tempted I am to curse an ever-full e-mail box, I often wonder how we managed without it. How else would I have been able to stay in contact with a student who recently missed several classes because she and her teammates were busy winning the NCAA Division II basketball championship? Talk about athlete-students. She e-mailed me about the course on the very afternoon of her final game.
Yet unrelieved e-communication with our students eats into time we need for intellectual recharge, thinking and writing. Enticing digital waters can also drown us. Be it from the clutter of my study or from the comfort of a high-end hotel, every time I respond to student e-mail during “off hours” I may be writing the script for my own obsolescence. How long, I wonder, before a collective of ambitious Ph.D.s in Calcutta is both willing to teach all my classes online and to remain available 24/7 fielding queries about the next day’s assignment -- like the revolving “Mikes” who help resolve my wireless network problems? Is this the end of the virtual path upon which I blithely trod?
Such musings, I suppose, are born less from genuine fear than from computer fatigue, despite my new LCD screen. Yes, our students are now and will remain “digital natives.” But I’m confident that, much as we try to “interface” with them, we won’t easily surrender the face-to-face pleasures of the seminar room and the office. After all, how else could I have witnessed Terry, when he actually did find his way to class that Tuesday night, regaling his peers with fresh prints of his fiery adventure -- from Nos. 127 through 143.
Rob Franciosi is professor of English at Grand Valley State University, in Michigan.
I am a digitally-enabled, network-ready scholar. I check e-mail and browse the Web. I read RSS feeds. I leverage Web 2.0's ambient findability to implement AJAX-based tagsonomy-focused long-tail wiki content alerting via preprint open-access e-archives with social networking services. I am so enthusiastic about digital scholarship that about a year ago I published a piece in my scholarly association's newsletter advocating that we incorporate it into our publications program. The piece was pretty widely read. At annual meetings I had colleagues tell me that they really like it and are interested in digital scholarship but they still (and presumably unlike me) enjoy reading actually physical books. This always surprised me because I love books too, and it never occurred to me that an interest in digital scholarship meant turning your back on paper. So just to set the record straight, I would like to state in this (admittedly Web-only) public forum that I have a deep and abiding passion for paper: I love it. Love it.
It's true that there is a lot of stuff you can do with PDFs and the Web that you can’t do with paper, but too often people take this to mean that digital resources "have features" or "are usable" while paper is just, you know, paper. But this is not correct -- paper (like any information technology) has its own unique form of usability just as digital resources have theirs. Our current students are unused to paper and attribute the frustration they feel when they use it as a mere lack of usability when in fact they simply haven't figured out how it works. Older scholars, meanwhile, tend to forget about paper’s unique utility because using it has simply become second nature to them.
Some of the features of paper are well known: Reading more than three pages of text on a screen makes your eyes bleed, but I can read paper for hours. You can underline, highlight, and annotate paper in a way that is still impossible with Web pages. And, of course, in the anarchy after The Big Electromagnetic Pulse the PDFs will be wiped clean off my hard drive but I will still be able to barter my hard copy of Durkheim's Elementary Forms of the Religious Life for food and bullets.
But my passion for paper is about more than preserving the sociological canon in a post-apocalyptic future. Using paper is embodied in a way that using digital resources are not. Paper has a corporeality that digital texts do not. For instance, have you ever tried to find a quote in a book and been unable to remember whether it was on the left or right hand side of the page? This just a trivial example of way in which paper’s physicality is the origin of its utility.
And of course professors have bodies too. This is another way that scholarship is embodied -- we often do it while in libraries. Here our bodies are literally in a vast assemblage of paper with its own unique form of usability. And as scholars achieve total communion with the stacks, they find books based not just on catalog number, but on all of their senses. The fourth floor of the library I wrote my Ph.D. in sounded and smelled differently than the second did. How many of us -- even the lab scientists -- with Ph.D.'s will ever be able to forget the physical layout of the libraries where we wrote our dissertations? Or our undergraduate libraries? I find books in my current library by comparing its floorplan with the layout of the college library where I first studied.
And catalog systems! I am a DU740.42 man myself, although I freelance in B2430 at times and of course retain a broader competence in G and GN. I was visiting a colleague at Duke once and went into its library to see what sort of GN treasures it might have stored away only to find that the library used Dewey Decimal -- a fact I experienced with surprisingly raw sense of betrayal.
The very fact that libraries can’t buy every book is a form of utility, not a disadvantage. True, there is tons of hubub about Web sites that provide users "personalized recommendations" based on their preferences and the preferences of people in their social networks. But in practice all this has boiled down to the fact that after years of using Amazon.com, it has finally figured out that since I enjoyed reading Plato's Republic, I might also be interested in Homer's Iliad. But every book in my library has been "filtered" by my librarian, and browsing through stacks arranged by subject allows "discovery" of "resources" in a non-metaphorical pre-Internet way.
At Reed, where I went to college, the library had a disused, musty room dubbed the "multiple copy room." Not surprisingly, it was where all the multiple copies of books were stored. The librarians at a small liberal arts college like mine did not buy 10 copies of a book unless they sure that it was a keeper, worthy of being taught for eons, its wisdom instilled into countless generations of students who would value it so much that they would weep when bartering their own copies of it for food and bullets after The Big Electromagnetic Pulse. Browsing through and reading from those shelves was the best "filter" for "content" that I ever had. So much for "the long tail."
And of course browsing doesn't just happen in libraries. Amazon may have a bintillion books for sale out in the ether of the ethernet, but there is no better place to take the pulse of academic publishing that a good used book store near a university. Bookstores mark the life cycle and disposition of the community where they are physically located -- the end-of-the year glut of books dumped by students eager to rid themselves of dead weight like Anna Karenina in order to spend more time tinkering with their MySpace page is itself a good indicator of what a university has been assigning.
Bookstores also connect us to the larger scholarly community. Remainders -- books that are being sold at discount prices because publishers want them out of their warehouses -- are a remarkable measure of what fads have just passed in scholarly publishing or what is about to come out in paperback. And of course just being in a good bookshop can be therapeutic. A good friend of mine worked his way through college at a Walden Books. After work he would spend a half hour in the aisles of our local used book store, staring at the covers of Calvino novels until he had recovered from eight hours of selling people copies of The Celestine Prophecy.
The used book store is the horizon at which our human finitude and our books intersect. I have actually been turned on to the work of scholars based solely on the fact that I've purchased so many books from their collections. One book store I frequent actually put a picture of one recently deceased professor in the window to advertise that his library was on sale. Some find the practice morbid, but for me this sort of thing is the academic equivalent of the life-affirming musical number in The Lion King about how we are all part of the circle of life. Roscher and Knies costs $180 off the Internet and is scarcer than hen's teeth, but in that magical, electric moment that I found it used for 20 bucks I knew that in cherishing and loving it I would not only be honoring the memory of the previous owner, but perpetuating the hopelessly over-specialized intellectual lineage which we both cared about so deeply.
What I am trying to say is that owning and reading books is about our lives as scholars in a way that e-journals are not. Our libraries are furniture. They are decoration. They threaten the breathable air to paper ratio in our apartments and offices. Books spill over my shelves. They crowd my kitchen table. We are what we read. On my bedside I currently have one Hawaiian language textbook, Dan Simmon's science fiction novel Hyperion, Jonathan Lamb's Preserving the Self In The South Seas: 1680-1840, Eugene Genovese's Roll Jordan Roll and Jean-Luc Nancy's The Inoperable Community. In this combination I find elemental solace.
Our collections of physical, paper texts do not only help explain who we are to ourselves, they signal this to our visitors. When my guests first enter my apartment and make a beeline to my shelves they are actually learning more about me. When they admire my copy of Roscher and Knies I am learning something about them. When they spot my first edition of Ricky Jay's Cards as Weapons or Scatological Rites Of All Nations I know that I have found a true soul mate. I am convinced that this is somehow more important than finding out that the professor in the office next to me reads the same cat blogs that I do.
It is easy to see that paper will continue to be used by academics for a long time to come purely on the basis of its utility as an information technology. But we are not passionate about paper because it is a good research tool. We are passionate about it because of the way that it smells and feels. Our love of paper springs from the way it insinuates itself into not only our career, but our souls. This is why, after The Big Electromagnet Pulse, I won't be working desperately on some computer somewhere trying to resurrect my metadata. I’ll be fortifying the multiple copy room and trying to figure out how few copies of The Andaman Islanders I’ll have part with to keep alive until someone manages to turn the power back on.
Alex Golub finished his dissertation in anthropology at the University of Chicago in 2005 and is now an adjunct professor at the University of Hawaii at Manoa. He blogs at Savage Minds, a group blog about cultural anthropology.
Opening up The New York Times last week, I stumbled across an article that outraged me. "Colleges Chase as Cheats Shift to Higher Tech" detailed the struggle of some academics against new, high-tech forms of "cheating" that are based in Internet use, iPods, cellphones, and PocketPCs. The tone of the article was one of dismay at the collapse of morality in education. As I watched the article climb the "most e-mailed list" on the Times Web site through the day, my outrage increased.
Few would want to be caught defending "cheating," especially in academe, especially in a time when we in education struggle with everything from steroid abuse, to massaged college applications, to fraudulent journalism, to high-profile plagiarism. And no one really wants to encourage or even condone most dishonesties -- in the classroom or out. There is, however, always a scale of potential harm on which we measure human sin, and for me, the most apparent dangers mentioned in this article were not any student behavior described, but the fact that one journalism professor quoted in the article is using valuable college course instructional time to give spelling tests (the article says that he “caught students trying to use spell check in an exam partly testing spelling ability") and that so many American university faculty and administrators are failing to see where the actual problem lies.
As a graduate student, as a course instructor, I have come to the conclusion that I welcome the arrival of the world -- in the form of ubiquitous contemporary technology -- into the stultified environment of higher education. I must also welcome these new methods of cheating because, perhaps, only under the pressure of this now powerfully armed student revolt will high school teachers and college professors finally begin to adapt to new realities and begin to actually teach and facilitate learning and assess students in real and relevant ways.
This one instructor’s spelling tests are an easy target, but he is not unusual. In classroom after classroom, all across the nation, students are being asked to memorize and regurgitate trivia at the expense of time spent learning what is essential in the 21st Century. As one letter to the Times editors asked, "In today's information age, where a body of information in all but the narrowest of fields is beyond anyone's ability to master, why aren't colleges teaching students how to research, organize and evaluate the information that is out there?" Why, one must ask, would a journalism professor in 2006 be testing skills from the Remington typewriter and linotype era? Reporters I know use tape recorders, PocketPCs, and laptops, enter their stories electronically via software that has spell-check, and send it to their editors. If the journalism professor in the Times article is teaching spelling (and if he is not teaching spelling why would he be giving a test assessing that skill?), he is not using that time for skills – knowing how to set up spell-checkers, how to use and not use grammar checkers, how to properly refine auto-correct and word prediction software -- that will be essential to his students’ survival.
It has long been academe's dirty little secret that bad instructors and bad assignments create cheating. If knowledge of a meaningless list of facts is being assessed, if spelling is being measured, if memorization of equations is the goal of a course, students can and will cheat. Perhaps they should cheat. As a John Jay College instructor, Daniel Newsome, said in a letter about the Times article, "In the real world, we use cheat sheets all the time. Why not in school? Life is too short to fight against the real world and constantly be disappointed with the outcome. Embrace cheating ... but perhaps give it a new name." If, however, processing information is the issue, if creative solutions are being sought, if students are being asked to develop new syntheses, then cheating will be much rarer, and much more difficult, technology use will become essential, and learning will be far more relevant.
We need to face the facts. If I need a quick answer outside of school and can't quite remember what I need to know, I will Google the topic, or I will call someone, or text someone, or e-mail someone. One of these sources will, if I know how to operate this technology efficiently and effectively, provide me with the essential information. That's not cheating, that is life. Only in a classroom is this considered "wrong." Everywhere else it is viewed as "intelligent," because we all know that we cannot know everything.
Outside the classroom, cell phones, PDAs, PocketPCs, Internet access is everywhere because we need it and use it in our information driven lives. But inside the classroom, the very skills humans need to succeed are discouraged and viewed with alarm. So schools do not teach effective use of Google, of text-messaging, of instant-messaging. They don't teach collaboration. They barely teach communication outside the stilted prose only academics use. No wonder students are prepared for nothing except more school.
"If they'd spend as much time studying" as they do cheating, a University of Nevada at Las Vegas dean says in the Times article, "they'd all be A students." The question for the dean is, what would they have an "A" in? Rewriting Wikipedia to please a professor? Spelling? Regurgitating information that any competent search engine user could find in thirty seconds? Perhaps the skills the "cheaters" are learning are the far more valuable ones. These skills will carry them forward in ways memorization of spelling, quadratic formulas, scientific terms and historical dates simply will not.
What must be learned through education is the processing of this instantly available information. How do you find what you are looking for? How do you check for quality and accuracy? How do you cite sources and avoid plagiarism? How do you investigate the sources of others or determine when others have plagiarized? Just three days after publishing the "Cheating" article the Times itself had to publish a lengthy retraction of a front page story. The prominent printing of false information could have been avoided, the newspaper's Public Editor noted, had the news staff simply Googled its own articles. Nothing could illustrate the changing needs of curriculums more clearly.
There is also the issue of educational discrimination. When schools fight against technology, they are fighting access to education for people who learn and function differently. Technology, from computers to calculators to classroom cellphones, enables a wide variety of students who would otherwise be left out to participate and succeed. Technology in the hands of all students allows disabilities and functional deficits to be invisibly accommodated so that knowledge can be developed, nurtured, and evaluated on terms fair to everyone.
So, no, the problem is not cheating. The problem is firmly one of instructional and evaluation technique. It will not be solved until teachers and professors figure out that understanding and the ability to work with knowledge is what counts, and that anything you can instantly Google, or store in your calculator, or retrieve via quick text-message or phone call need not be remembered, nor tested, because, obviously, you will always be able to instantly Google it, or store it in your cellphone, or get someone to text it to you.
Ira Socol is a special education technology scholar in Michigan State University's College of Education.
This afternoon, in a Congressional office building, Rep. Howard Berman (D-Calif.), chairman of the House of Representatives Judiciary Subcommittee on the Courts, the Internet, and Intellectual Property, will convene a public hearing about digital piracy on college and university networks. Berman is Hollywood’s man in Congress -- literally! His Los Angeles Congressional district is home to many major movie and music studios.
Today’s hearing is the latest in a continuing Congressional review of digital piracy -- both on and off college networks. Digital piracy -- be it copy shops in Asia churning out thousands of counterfeit copies of CDs, DVDs, and computer software, or individuals downloading music, movies and software from the Internet -- involves big bucks. A recent report by the Los Angeles Economic Development Corporation suggests that all forms of digital piracy and counterfeiting (including counterfeit clothing) cost Los Angeles area companies some $5.2 billion in lost revenue in 2005, and state and local governments $483 million in lost tax revenue. The development corporation reports that digital piracy and product counterfeiting cost Los Angeles 106,000 jobs in 2005.
There can be no posturing about the core issue: Copyright is a good thing. Copyright protects the rights of individuals and organizations that create and distribute music, movies, and other kinds of digital content and resources. Piracy is theft. Piracy is bad. Piracy is illegal.
That said, while there is no question that digital piracy -- by copy shops or college students -- is wrong, so too is the underlying assumption of today’s hearing: that college students are the primary source of digital piracy affecting the music and movie industries, and that campus officials are implicitly complicit in the illegal downloading done by college students.
Late last month, Cary Sherman, president of the Recording Industry Association of America and point person in the entertainment industry’s campaign to stem the tide of digital piracy, particularly among college students, sent a letter to some 2,000 college and university presidents, delivered via e-mail by David Ward, president of the American Council on Education. Sherman offered a pro forma acknowledgement that there has been some progress regarding “illegal file trafficking of copyrighted content on peer-to-peer (P2P) systems,” stating that the RIAA and others in the entertainment industry are “grateful for the proactive work of many institutions.” But Sherman’s letter also stated clearly that because “the piracy problem on campuses remains extensive and unacceptable,” the RIAA felt “compelled to escalate [its] deterrence” efforts, as reflected in a new wave of lawsuits under the Digital Millennium Copyright Act, announced earlier in February.
(Meanwhile, there’s also some back room speculation around Washington that Mr. Sherman and others in the entertainment industry would like Congress to deal with digital piracy in the long-delayed reauthorization of the Higher Education Act. Who knows: Perhaps violations of copyright law will join drug convictions as cause for students to be ineligible to participate in government financial aid programs?)
The RIAA’s February lawsuits and Sherman’s February 28 letter to college presidents appears to be the first phase of a spring offensive targeting college students and coercing campus officials. The firm but polite language of Sherman’s letter outlines “a reasonable role that college administrators can play” in stemming P2P downloading. The last page of Sherman’s four-page letter identifies four “ways to prevent/reduce student exposure to lawsuits and DMCA notices.”
The RIAA wants colleges and universities to (1) implement a technical network solution; (2) offer an online music service to students; (3) take disciplinary action against students; and (4) provide user education programs about copyright and downloading. Additionally, in his cover letter Sherman suggests that campus officials can “faciliate the [RIAA’s] new deterrence program by forwarding pre-lawsuit letters” to students and others with access the campus network to settle legal claims ahead of RIAA lawsuits
All this smacks of extortion. The RIAA's proposed “remedies” represent an easily inferred threat to campus officials: Do as we “suggest” or we will sue your institution and hold you liable for the activities of your students.
The RIAA cites data that “college students, the most avid music fans, get more of their music from illegal peer-to-peer downloading than the rest of the population: 25 percent vs. 16 percent (percentage of total music acquisition from peer-to-peer downloading).” The RIAA claims that “more than half of college students download music and movies illegally.”
Some of this is simply a numbers game for press releases. The term “college student” generically applies to some 17 million Americans, ages 16-67, who take college courses. In this context, only a small proportion of the nation’s 17 million “college students” depend on campus networks for Internet access, and a far smaller number are downloading digital content. Yes, the downloading may be illegal, but the RIAA’s numbers don’t document some 8.5 million students engaged in illegal P2P activity.
While traditional college students who depend on campus networks for Internet access may, as the RIAA claims, get more of their music from P2P downloading than the general population, the size of the denominator of this college student population -- perhaps some 2 to 2.5 million full-time undergraduates who reside in college dorms and who depend on campus networks for Internet access -- pales when compared to the tens of millions of consumers who purchase broadband services from cable and telecommunications companies such as AT&T, Comcast, Earthlink, TimeWarner and Verizon.
The real numbers suggest that the RIAA has lost sight of the hemorrhaging of digital content via consumer broadband services as it focuses its legal campaign and PR efforts on college students. (In 2005, concurrent with the Supreme Court’s Grokster decision, a billboard in Los Angeles promoting SBC/Yahoo's DSL service used the tag line "faster downloading of music, movies and stuff." Of course the billboard did not say anything about how to pay for "this stuff.")
Additionally, the RIAA's numbers on “John Doe” lawsuits filed in 2004 and 2005, culled from its own press releases, indicate that college students accounted for just 4 percent (329) of the more than 8,400 “John Does” targeted in RIAA filings. In other words, “consumer piracy” represents a far greater threat to the music industry than does the admittedly inappropriate and illegal downloading and file sharing activity of college students on campus networks. Moreover, while the RIAA’s February 28 news release asserts that “college students are the most avid music fans,” the RIAA’s 2005 Consumer Profile reveals that college students (ages 18-24) account for approximately a sixth (roughly 15-17 percent) of the music buying population; in contrast, consumers aged 25 and older purchase two-thirds (66.9 percent) of all recorded music.
Sherman asserts that while “many schools have worked with [the RIAA] to recognize the [P2P] problem and address it effectively … a far greater number of schools … have done little or nothing at all.” Not so! Data from the fall 2006 Campus Computing Survey indicate that the vast majority of colleges and universities have acceptable use policies to address copyright issues and digital piracy. A small but growing number of institutions are following the Cornell model of requiring network users -- students, faculty, and staff -- to complete an online user education tutorial about copyright, P2P, and acceptable use policies before they gain access to their campus e-mail accounts and the university network.
And many institutions punish students for inappropriate and illegal P2P activity. Poking fun at both campus officials and students, a 2003 "Doonesbury" cartoon highlighted the efforts of campus officials to pursue “digital downloaders.” More importantly, this past week the Educause CIO online discussion list has had an active conversation among campus officials about sanctions their instituitons impose for DMCA violations. In contrast, consumer ISPs provide no active user education on the P2P issue and do little or nothing to address digital piracy.
These numbers notwithstanding, the RIAA has not pursued consumer broadband providers on the copyright/downloading issue. When I raised this issue with an RIAA official in fall 2004, I was told, in essence, that the consumer broadband providers view litigation as a cost of doing business, while, in contrast, the RIAA knows that colleges and universities, when presented with the threat of litigation, will "jump."
The RIAA’s continuing -- and seemingly exclusive, if not myopic -- focus on college students as the primary source of digital piracy stands in stark contrast to the activities of its European affiliate. On January 17, the London-based International Federation of the Phonographic Industries threatened action against consumer broadband Internet Service Providers (ISPs) if they failed to move against users who illegally download digital content. Yes, the RIAA has sued individuals who used consumer broadband services to download or distribute digital content illegally. However, even as the illegal downloading and distribution on consumer networks presents a greater threat to digital content than the inappropriate P2P activity occurring over campus networks, the RIAA seems to focus its major PR (and Congressional) efforts on college students.
The campus community has been largely silent in response to the RIAA’s continuing PR assault. Yes, we in the campus community do care about copyright: the Association of Governing Boards of Colleges and Universities’ list of “Top 10 Public Policy Issues for Higher Education in 2005-6” cites intellectual property as a key policy issue for campus officials, noting that “respect for intellectual property -- created as part of faculty research and teaching or provided as commercial content by the information and entertainment industries -- will help institutions maximize and protect their own resources.” And yes, sadly, an occasional campus official has offered up unfortunate (if not just plain dumb) public comments about P2P on campus networks, saying that they don’t consider it a top campus IT priority.
Of course, no college president condones piracy. Still, it is discouraging, but not surprising, that college presidents have not been willing to challenge the RIAA’s PR campaign. Several have offered up their names and the prestige of their institutions to support the RIAA’s PR efforts. To date, however, none have stepped forward to state firmly that while their institutions are addressing digital piracy via user education and student sanctions, they also will not submit to the bullying tactics of RIAA officials.
Let’s be clear: I'm not condoning digital piracy. I'm on record in a variety of forums and published articles, spanning two decades, that copyright matters. Campuses and college students are an admittedly easy target for the music and movie industries concerned about digital piracy. But we are the wrong target. We in the campus community are doing more about P2P and digital piracy -- and doing it far better -- than the consumer broadband ISPs that provide Internet service to more than 45 percent of American households (more than 35 million homes and small businesses).
The RIAA's singleminded focus on college students -- and easily inferred threats to campus officials -- misses the larger issue: Digital piracy is a consumer market problem, not simply a campus issue.
Kenneth C. Green
Kenneth C Green is the founding director of the Campus Computing Project and a visiting scholar at the Claremont Graduate University.
As many in the higher education community are well aware from news coverage here and elsewhere, the Recording Industry Association of America (RIAA), on behalf of its member labels, recently initiated a new process for lawsuits against computer users who engage in illegal file-trafficking of copyrighted content on peer-to-peer (P2P) systems. In the new round of lawsuits, 400 of these legal actions were directed at college and university students around the country. The inclusion of so many students was unprecedented. Unfortunately, it was also necessary.
In the three and a half years since we first began suing individuals for illegal file-trafficking, we have witnessed an immense growth in national awareness of this problem. Today, virtually no one, particularly technology savvy students, can claim not to know that the online “sharing” of copyrighted music, movies, software and other works is illegal. By now, there is broad understanding of the impact from this activity, including billions of dollars in lost revenue, millions of dollars in lost taxes, thousands of lost jobs, and entire industries struggling to grow viable legitimate online market places that benefit consumers against a backdrop of massive theft.
We have made great progress -- both in holding responsible the illicit businesses profiting from copyright infringement and in deterring many individuals from engaging in illegal downloading behavior. Nevertheless, illegal file-trafficking remains a significant and disproportionate problem on college campuses. A recent survey by Student Monitor from spring 2006 found that more than half of college students download music and movies illegally, and according to the market research firm NPD, college students alone accounted for more than 1.3 billion illegal music downloads in 2006.
We know some in the university community believe these figures overstate the contribution of college students to the illegal file-trafficking problem today. Yet new data confirms that students are more prone to engaging in this illegal activity than the population at large. While college students represented only 10 percent of the sample in the online NPD study, they accounted for 26 percent of all music downloading on P2P networks and 21 percent of all P2P users in 2006. Furthermore, college students surveyed by NPD reported that more than two-thirds of all the music they acquired was obtained illegally.
Moreover, our focus on university students is not detracting from our continuing enforcement efforts against individuals using commercial Internet Service Provider (ISP) accounts to engage in this same behavior. Indeed, we have asked ISPs to participate in the same new process that we have implemented for university network users.
Yet this is about far more than the size of a particular slice of the pie. This is about a generation of music fans. College students used to be the music industry’s best customers. Now, finding a record store still in business anywhere near a campus is a difficult assignment at best. It’s not just the loss of current sales that concerns us, but the habits formed in college that will stay with these students for a lifetime. This is a teachable moment -- an opportunity to educate these particular students about the importance of music in their lives and the importance of respecting and valuing music as intellectual property.
The prevalence of this activity on our college campuses should be as unacceptable to universities as it is to us. These networks are intended for educational and research purposes. These are the environments where students receive the guidance necessary to become responsible citizens. Institutions of higher education, of all places, are where people should learn about the value of intellectual property and the importance of protecting it.
The fact that students continue to engage in this behavior is particularly egregious given the extraordinary lengths to which we have gone to address the problem. Our approach always has been and continues to be collaborative -- partnering with and appealing to the higher motives of universities. We have met personally with university administrators. We have provided both instructional material and educational resources, including an orientation video to help deter illegal downloading. We have worked productively through organizations like the Joint Committee of the Higher Education and Entertainment Communities. We have participated in Congressional hearings.
We have informed schools of effective network technologies to inhibit illegal activity. We have licensed legitimate music services at steeply discounted rates for college students and helped to arrange partnership opportunities between universities and legitimate services. We have stepped up our notice program to alert schools and students of infringing activity. And, of course, we have as a last resort brought suit against individual file-traffickers.
With this latest round of lawsuits, we have initiated a new pre-lawsuit settlement program intended to allow students to voluntarily settle claims before a suit is actually filed. We have asked for school administrations’ assistance in passing our letters on to students in order to give them the opportunity to settle a claim at a discounted rate and before a public record is created. This is a program initiated in part as a response to defendants who told us they would like this opportunity, and we are encouraged by the swift response of so many schools. Lawsuits are by no means our desired course of action. But when the problem continues to persist, year after year, we are left with no choice.
An op-ed writer recently published in this forum described this approach as bullying. There is a big difference between using “bullying tactics” and using a “bully pulpit” to make an important point. Should we ignore this problem and stand silent as entire generations of students learn to steal? Should we not point out that administrators are brushing off responsibility, choosing not to exercise their moral leadership on this issue? This problem is anything but ours and ours alone. If music is stolen with such impunity, what makes term papers any different? Yet we know university administrators very aggressively pursue plagiarism. Why would universities -- so prolific in the creation of intellectual capital themselves -- not apply the same high standards to intellectual property of all kinds? This is, after all, a segment of our economy responsible for more than 6 percent of our nation’s GDP.
Furthermore, a Business Software Alliance study conducted last year found that 86 percent of managers say that the file-sharing attitudes and behaviors of applicants affect on their hiring decisions. Don’t administrators have an obligation to prepare students for the real world, where theft is simply not tolerated? Our strategy is not to bully but to point out that the self-interest of universities lies remarkably close to the interests of the entertainment industries whose products are being looted. And, most importantly, we have sought to do so in a collaborative way.
It doesn’t have to be like this. We take this opportunity to once again ask schools to be proactive, to step up and accept responsibility for the activity of their students on their network -- not legal responsibility, but moral responsibility, as educators, as organizations transmitting values. Turning a blind eye will not make the problem go away; it will further ingrain in students the belief that a costly and illegal pastime is sanctioned, and even facilitated, by school administrations.
The necessary steps are simple. First, implement a network technical solution. Products like Red Lambda’s cGrid are promising as effective and comprehensive solutions that maintain the integrity, security, and legal use of school computing systems without threatening student privacy. Some schools have used these products to block the use of P2P entirely, realizing that the overwhelming, if not sole, use of these applications on campus is to illegally download and distribute copyrighted works. For schools that do not wish to prohibit entirely access to P2P applications, products such as Audible Magic’s CopySense can be used to filter illegal P2P traffic, again, without impinging on student privacy.
Second, offer a legal online service to give students an inexpensive alternative to stealing. One such service, Ruckus, is funded through advertising and is completely free to users. When schools increasingly provide their students with amenities like cable TV, there is simply no reason not to offer them cheap or free legal access to the music they crave.
Third, take appropriate and consistent disciplinary action when students are found to be engaging in infringing conduct online. This includes stopping and punishing such activity in dorms and on all Local Area Networks throughout a school’s computing system.
Some administrations have embraced these solutions, engaged in productive dialogue with us to address this problem, and begun to see positive results. We thank these schools and commend them for their responsible actions.
Yet the vast majority of institutions still have not come to grips with the need to take appropriate action. As we continue our necessary enforcement measures -- including our notices and pre-lawsuit settlement initiative -- and as Congress continues to monitor this issue with a watchful eye, we hope these schools will fully realize the harm their inaction causes them and their students. We call upon them to do their part to address this continuing, mutual problem.
Mitch Bainwol and Cary Sherman
Mitch Bainwol is chairman and CEO and Cary Sherman is president of the Recording Industry Association of America.
College students are flocking to social networking sites on the Internet in stunning numbers, often unaware of the potential dangers that can arise there. These dangers primarily arise from posting personal information online that can be viewed by criminals, potential employers, and school administrators, which can result in identity theft, loss of job opportunities, and violations of school rules. Campus administrators should inform their students about the potential dangers of using social networking Web sites -- but they should be cautious not to do so in ways that could make them liable if the students engage in illegal behavior.
Students view social networking Web sites as private databases that permit them to communicate using a multimedia-based approach, but many don’t realize the potential dangers that accompany this type of activity. Because of this, colleges must provide their students with information regarding three major concerns in sharing information online: (1) the threat of criminal behavior; (2) how they might be seen by potential future employers; and (3) possible violations of their institution’s student code of conduct.
Although many students believe the personal information they share on social networking sites is not viewed by others, that information can provide criminals with enough detail to identify the student. In doing so, a student who posts personal details online can give criminals enough information to commit crimes such as stalking or identity theft. Because of the high risk of such crimes when personal information is posted on social networking Web sites, colleges should advise their students not to share private information online, such as names, addresses, email addresses, birthdates and phone numbers.
Information that students may think is personal could be viewed by potential employers if posted on social networking sites. As a result, colleges and universities should warn their students not to post inappropriate messages or photographs that could negatively influence an employer’s perception. Many employers are aware of social networking Web sites, and some use these sites to check for negative attributes of an applicant.
A recent New York Times article highlighted this concern: “[N]ow, college career counselors and other experts say, some recruiters are looking up applicants on social networking sites ... where college students often post risqué or teasing photographs and provocative comments about drinking, recreational drug use and sexual exploits in what some mistakenly believe is relative privacy.” Because the information posted by students on social networking Web sites is often publicly viewed, colleges should remind their students that the information they post on these sites is not private, and that potential employers could use that information to form crucial first impressions about student applicants.
Much of the information that would create concern among potential employers if viewed on a social networking Web site could also violate a school’s code of student conduct. These student rules and restrictions are often found in a student handbook or similar school publication. The Syracuse Post-Standarddescribed this issue as “a growing trend where officials nationally are paying attention to what their students are posting on the Internet.”
Students have been found guilty of violating these student regulations at numerous schools. At Pennsylvania State University, students created a Facebook group entitled “I rushed the field,” to which students joined and posted photographs and names of people on the field after the school’s win over Ohio State in football. After accessing the Facebook group’s Web page, university police used that information to identify more than 50 students who violated the school’s policy by rushing the field after the football game.
In addition, a growing number of universities are creating policies to regulate their athletes’ use of social networking Web sites. Athletes present a unique public image for the university, and schools could be embarrassed if athletes post information online about participating in illegal activities.
In May 2005, students on Louisiana State University’s swim team were reprimanded after athletic administrators discovered the students belonged to a Facebook group that included disparaging comments about swim coaches. One student transferred to Purdue University to avoid being reprimanded and expressed surprise that administrators had found the postings online. Athletic administrators at Florida State University and the University of Kentucky recently warned their athletes to be careful what they post.
Challenges for Colleges, Too
Just as social networking sites pose a set of potential risks for students, they create a set of questions and potential problems for institutions as well.
Although most colleges do not currently monitor their students’ online activities, university police often investigate tips received about information posted on the Internet. As a result, university police and school administrators may learn about information posted on social networking Web sites that violates the school’s code of student conduct.
Three primary questions arise in the context of monitoring these activities. First, is the college monitoring its students’ online activities regularly? A college that doesn’t monitor its students’ online activities should analyze whether monitoring is necessary.
Second, if the institution monitors this activity, why has it chosen to do so? If a college monitors its students’ online activities to assure that students act in accordance with its mission, such as a military or religious institution, then it may create a “duty of care” toward its students. A duty of care would obligate a college to take all reasonably practicable steps to prevent its students from harm. If a college with a duty of care toward its students does not take all reasonably practicable steps to prevent harm to its students, the college’s actions may be negligent and could expose the college to lawsuits. But colleges that do not regularly monitor their students’ online activities and only investigate tips of potential crimes online may be free to continue periodic monitoring without assuming a duty of care.
Third, has the college informed its students of its policy toward monitoring? A school that informs all incoming students of its policy of monitoring students’ online activities during orientation or posts this information prominently on campus may be more likely to assume a duty of care toward its students. If most students are not informed of a school’s policy of monitoring such activities, however, the school may be less likely to have assumed a duty of care toward its students, because there is likely a lower expectation that the school would monitor these activities.
In addition, the specificity and clarity of a school’s statements informing students of the school’s monitoring policy should be considered. If the school’s policy statement is ambiguous or its scope is unclear, students may be less likely to rely upon schools to prevent illegal acts resulting from online activity. Statements that clearly state the school’s policy of monitoring, including its scope and application to specific online activities, such as social networking Web sites, are more likely to create a duty of care for the school.
Colleges and universities must inform students about the particular dangers they face online. But if schools actively monitor their students’ online activities and students are aware of this policy, they may have a duty of care that includes preventing any illegal acts committed as a result of information posted online.
Thus, schools should inform their students about the potential dangers of using social networking Web sites, but should also be careful not to become liable if the students engage in illegal behavior.
Sheldon Steinbach and Lynn Deavers
Sheldon E. Steinbach and Lynn M. Deavers are lawyers in the higher education practice at the Washington law firm Dow Lohnes
Zotero is a tool for storing, retrieving, organizing, and annotating digital documents. It has been available for not quite a year. I started using it about six weeks ago, and am still learning some of the fine points, but feel sufficient enthusiasm about Zotero to recommend it to anyone doing research online. If very much of your work involves material from JSTOR, for example – or if you find it necessary to collect bibliographical references, or to locate Web-based publications that you expect to cite in your own work -- then Zotero is worth knowing how to use. (You can install it on your computer for free; more on that in due course.)
Now, my highest qualification for testing a digital tool is, perhaps, that I have no qualifications for testing a digital tool. That is not as paradoxical as it sounds. The limits of my technological competence are very quickly reached. My command of the laptop computer consists primarily of the ability to (1) turn it on and (2) type stuff. This condition entails certain disadvantages (the mockery of nieces and nephews, for example) but it makes for a pretty good guinea pig.
And in that respect, I can report that the folks at George Mason University’s Center for History and New Media have done an exemplary job in designing Zotero. A relatively clueless person can learn to use it without exhaustive effort.
Still, it seems as if institutions that do not currently do so might want to offer tutorials on Zotero for faculty and students who may lack whatever gene makes for an intuitive grasp of software. Academic librarians are probably the best people to offer instruction. Aside from being digitally savvy, they may be the people at a university in the best position to appreciate the range of uses to which Zotero can be put.
For the absolute newbie, however, let me explain what Zotero is -- or rather, what it allows you to do. I’ll also mention a couple of problems or limitations. Zotero is still under development and will doubtless become more powerful (that is, more useful) in later releases. But the version now available has numerous valuable features that far outweigh any glitches.
Suppose you go online to gather material on some aspect of a book you are writing. In the course of a few hours, you might find several promising titles in the library catalog, a few more with Amazon, a dozen useful papers via JSTOR, and three blog entries by scholars who are thinking aloud about some matter tangential to your project.
How do you keep track of all this material? In the case of the JSTOR articles, you might download them to your laptop to read later. With material available only on Web pages, you can do a "screen capture" (provided you've learned the command for that) but might well end up printing them out, since otherwise it is impossible to highlight or annotate the text. As for the bibliographical citations, you can open a word-processing document and copy the references, one by one, or use note-taking software to do the same thing a little more efficiently.
In any case, you will end up with a number of kinds of digital files. They will be dispersed around your laptop in various places, organized as best you can. Gathering them is one thing; keeping track of them is another. And if you have a number of lines of research running at the same time (some of them distinct, some of them overlapping) then the problem may be compounded. Unless you have an excellent memory, or a very efficient note-taking regimen, it is easy to get swamped.
What Zotero does, in short, is solve most of these problems from the start -- that is, at the very moment you find a piece of material online and decide that it is worth keeping. You can organize material by subject, in whatever format. And it allows cross-referencing between the documents in ways that improve your ability to remember and use what you have unearthed.
For example, you can "grab" all the bibliographical data on a given monograph from the library catalog with a click, and save it in the same folder as any reviews of the book you've downloaded from JSTOR. If the author has a Web site with his recent conference papers, you can download them to the same project file just as easily.
This isn’t just bookmarking the page. You actually have the full text available and can read it offline. The ability to store and retrieve whole Web pages is especially valuable when no reliable archive of a site exists. I got a better sense of this from a conversation with Manan Ahmed, a fellow member of the group blog Cliopatria, who has been using Zotero while working on his dissertation at the University of Chicago. Articles he read from Indian newspapers online were sometimes up for only a short time, so he needed more than the URL to find them again. (He also mentions that Zotero can handle his bibliographical references better than other note-taking systems; it can store citations in Urdu or Arabic just as well as English.)
Furthermore, Zotero allows you to annotate any of the documents you hunt and gather. You can cross-reference texts from different formats -- linking a catalog citation to JSTOR articles, Web publications, and so on. If a specific passage you are reading stands out as important, it is possible to mark it with the digital equivalent of a yellow highlighter. And you can also add the marginal annotations, just like with a printout -- except without any limitation of space.
When the time comes to incorporate any of this material into a manuscript, Zotero allows you to export the citations, notes, and so forth into a word-processing document.
Zotero is what is called a “plug in” for the Firefox Mozilla Web browser. You can use it only with Firefox; it doesn’t work with Netscape or Internet Explorer. People who know such things tell me that Firefox is preferable to any other browser. Be that as it may, the fact that Zotero functions only with Firefox means you need to have Firefox installed first. Fortunately it, too, is free. (All the necessary links will be given at the end of this column.)
While you are online, using Firefox to look at websites, there is a Zotero button in the lower right hand corner of the browser. If something is worth adding to your files, you click the button to open the Zotero directory. This gives you the ability to download bibliographical information, webpages, digital texts, etc. and to organize them into folders you create. (If a given document might be of use to you in two different projects, it is easy to file it in two separate folders with a couple of clicks.)
Likewise, you use the Zotero button in Firefox to get access to your material when offline. Then you can read things you glanced over quickly at the library, add notes, and so forth.
I won't try to explain the steps involved in using Zotero’s various features. Prose is hardly the best way to do so, and in any case the Zotero website offers "screencasts” (little digital movies, basically) showing how things work. The most striking thing about Zotero is how well the designers have combined simplicity, power, and efficiency -- none of them qualities to be taken for granted with a digital research tool. (Here I am thinking of a certain note-taking software that cost me $200, then required printing out the 300 page user’s manual explaining the 15 steps involved in doing every damned thing.)
There is some room for improvement, however. All of the material gathered with Zotero is stored on the hard drive of whatever computer you happen to be using at the time. If you work with both a laptop and a computer at home, you can end up with two different sets of files. And of course the document you really need at a given moment will always be on the other system, per Murphy's law.
The optimal situation would be something closer to an e-mail system. That is, users would be able to get access to their files from any computer that had Web access. Material would be stored online (that is, on a server somewhere) and be available to the user by logging in.
Aside from the increased convenience to the individual user, making Zotero a completely Web-based instrument would have other benefits. The most important -- the development likely to have a significant impact on scholarship itself -- would be its ability to enhance collaborative work. Using a Zotero account as a hub, a community of researchers could share references, create new databases, and so on. And the more specialized the field of research, I suppose, the more powerful the effect.
All of which is supposed to be possible with Zotero 2.0, which is on the way. The release date is unclear at this point, though improved features of the existing version are rolled out periodically.
But for now, the folders you create on your laptop are stored there -- and remain unavailable elsewhere, unless you make a point to transfer them to another computer. This brings up the other serious problem. There does not seem to be a ready way to back up your Zotero files en masse. In the best case, there would be a command allowing you to export all of the material in Zotero to, say, a zip drive. Otherwise you can end up with huge masses of data, representing however many hours of exploration and annotation, and no easy way to protect it.
Perhaps it is actually possible to do so and I just can’t figure it out. But then, neither can the full-fledged member of the digerati who initiated me into Zotero. And so we both use it with a mingled sense of appreciation (this sure makes research more efficient!) and dread (what if the system crashes?)
For now, though, appreciation is by far the stronger feeling. Zotero does for research what word-processing software did for writing. After a short while, you start to wonder how anyone ever did without it.
If you don't already have Firefox 2.0 on your computer's desktop, you will need to download it before installing Zotero itself. Both are available here. The site also offers a great deal of information for anyone getting started with Zotero. Especially helpful are the “screencast tutorials” -- the next best thing to having a live geek to ask for help.
"While clearly Zotero has a direct audience for citation management and research," according to another commentary, "the same infrastructure and techniques used by the system could become a general semantic Web or data framework for any other structured application." I am going to hope that is good news and not the sort of thing that leads to cyborgs traveling backward in time to destroy us all.
Remember Ronald Reagan? During the primary campaign in 1980 and later his presidential debates with Jimmy Carter, Reagan would offer an admonishing “there you go again” whenever his opponents made statement he deemed to misrepresent his positions.
Clearly we need someone to offer a very public, very stern, and clearly admonishing “there you go again” to Cary Sherman of the Recording Industry Association of American and Dan Glickman, the former Congressman and cabinet secretary who now serves as president of the Motion Picture Association of America. Sherman and Glickman, along with the MPAA and RIAA, have successfully “swiftboated” higher education on the issue of P2P – the illegal downloading, “peer to peer,” of digital content. They have continually and successfully portrayed college students as digital pirates and campus officials as unconcerned about and unresponsive to the use of campus networks for the illegal P2P downloading of copyrighted content, specifically movies and music.
Of course, ample data clearly indicate that illegal P2P downloading is a really consumer market problem, not limited to college students and college campuses. For example, college students accounted for less than 4 percent of the more than 8,400 John Doe lawsuits for illegal P2P downloading filed by the RIAA in 2004-25. Data from my annual Campus Computing Survey confirm that the vast majority of colleges and universities have campus policies to address illegal P2P and to inform students about appropriate use issues related to their access to and activities on campus networks. Moreover, colleges and universities are far more conscientious and concerned about illegal P2P activity than are the consumer broadband providers such as AT&T, Comcast, Earthlink, and TimeWarner, that, at times, implicitly promote P2P downloading as a reason to upgrade to higher speed consumer broadband services.
The latest episode in the MPAA/RIAA swiftboat campaign on P2P unfolded on November 9, via the long awaited legislation to reauthorize the Higher Education Act of 1965. Buried in the legislation, now called “The College Opportunity and Affordability Act of 2007,” are Congressional mandates on illegal P2P activity that take dead aim at colleges and universities.
Section 494 of the bill (on page 411 of the 747 page document) offers provisions to address “Campus-Based Digital Piracy.” In current format, the bill would require any college or university participating in federal student financial aid programs -- meaning almost all, from the nation’s elite research universities to local community colleges, as well as the vast majority of for-profit colleges -- (a) to “make publicly available to their students and employees, the policies and procedures related to the illegal downloading and distribution of copy-righted materials” and (b) to “develop a plan for offering alternatives to illegal downloading or peer-to-peer distribution of intellectual property as well as a plan to explore technology-based deterrents to prevent such illegal activity.”
Give them due credit: Glickman and Sherman deserve points for persistence. As drafted, Section 494 reflects the key points Mr. Sherman pressed in a letter to college presidents distributed by the American Council on Education earlier this year: Buy a subscription service and acquire a “technology solution” to deter illegal P2P activity. And yet these provisions are, in essence, extortion: the message to campus officials, initially in Sherman’s letter and now in the provisions of Section 494, is that you can buy your way out of the P2P quagmire.
Rather than address the proliferation of P2P activity in the consumer market, often aided and abetted by consumer broadband service providers, the MPAA and RIAA have opted to focus on college students, campus networks, and college administrators – admittedly easy (and often unsympathetic) targets. In an era of digital media, are consumers understandably confused by the Supreme Court’s 1978 BetaMax decision that said they could use VCRs (and today, by extension, TIVO and similar technologies) to record “over the air” content for personal use? Probably so. But while the real, long-term solution on illegal P2P activity should focus on user education, the MPAA and RIAA apparently feel that legislation offers a quicker remedy.
Glickman and Sherman have successfully moved the Congressional activity on P2P from public hearings to draft legislation. While at face value these three requirements - to inform students and employees about illegal downloading, to develop plans for offering alternatives (i.e. subscription services) to P2P illegal downloading, and to explore technology deterrents -- seem reasonable, they are really the soft glove that hides the steel fist of federal enforcement. The legislation would implicitly require campuses to spend money for music subscription services such as Napster or Ruckus, and also spend significant sums for “technology-based deterrents” to prevent illegal P2P that experts in both the campus community and the corporate sector have deemed ineffective as a solution to address the problem of P2P in both the campus and consumer market.
(Speaking at a June 5 Congressional hearing on illegal P2P downloading, Vance Ikezoye, president Audible Magic, one of the firms that provides a “technology deterrent” for illegal P2P activity, acknowledged that “technology will never be the entire solution [to P2P piracy] … just one of the tools.” Adrian Sannier, CIO at Arizona State University, told members of Congress assembled for the June 5 hearing that his campus had spent approximately $450,000 on P2P technology deterrent software over the past six years. Sannier described P2P as an “arms race.”)
Moreover, the draft legislation authorizes (but does not appropriate) funds, controlled by the secretary of education, “to develop, implement, operate, improve, and disseminate programs of prevention, education, and cost-effective technological solutions, to reduce and eliminate the illegal downloading and distribution of intellectual property.” These grants may also be used for the “support of higher education centers that will provide training, technical assistance, evaluation, dissemination, and associated services and assistance to the higher education community [on matters of P2P piracy] as determined by the Secretary and institutions of higher education.”
Come on! Is this really a top policy priority for the Department of Education? Should the Department really be underwriting campus centers to conduct research and develop user education programs at the behest of the music and movie industries?
In current format Section 494 is, in essence, a set of unfunded federal mandates that will provide substantial subsidies to the music industry and to the firms that claim to offer successful “technology-based deterrents” intended to stem illegal P2P activity on campus networks. Of course the cost of these unfunded mandates will be passed on to students, either as increased tuition or as supplemental student fees. And then Members will, of course, complain loudly about the rising cost of higher education, a concern that forms the underlying premise of the overall Higher Education Act bill!
As drafted, Section 494 reflects the continuing efforts of the MPAA and RIAA to seek Congressional remedy for market shifts. For example, more than a dozen years ago Congress enacted a small tax on blank media –think of blank cassette tapes – because consumers were buying and copying music cassettes, perhaps one for their car, perhaps one for a friend. Note that the music industry did not complain to the manufacturers who, beginning in the mid-1970s, flooded the consumer market with dual deck cassette players. Rather, they went to Congress for redress, remedy, and revenue, rather than pursue other avenues toward resolution.
Interestingly and unfortunately, students have been MIA in the public discussions (or public posturing) about illegal P2P on campus networks. Yes, several surveys of full-time undergraduates confirm that students are in many ways ambivalent, apathetic, or uninformed about copyright and P2P issues. They have come of age with VCRs and TIVO and see little difference between recording a television program and downloading music. This has left college officials in the difficult position of condemning illegal P2P activity on campus networks, while arguing that their institutions should not be required to police this activity or provide the names of students allegedly engaging in illegal P2P downloading.
Students should get involved in this issue. If they are unhappy about the RIAA and MPAA lobbying efforts which would lead to Congressional mandates that could result in increased tuition because of the pass-through costs of subscription services and “technology-based deterrents” intended to stem illegal P2P, they can vote with their wallets. For example, what if students deferred their rush to the multiplex when new movies open each weekend? As it happens, the split in box office revenue between studios/distributors and local exhibitors (the companies that manage the multiplex in the mall) shift over time: distributors/film studios get more of the up-front money (i.e., during the first weeks of a release). So if students deferred their rush to the box office from the opening weekend to the third week, the net revenue (box office) might be the same over time, but they could affect the revenue that goes to the studios.
Illegal P2P downloading is a messy issue. But the swiftboating efforts of the RIAA and the MPAA to portray college students as the primary source of digital piracy will not resolve this problem, in either the campus or the consumer markets. Neither will federal mandates that ultimately will mean pass-through costs for students. The long-term solution lies in an aggressive mix of user education and new market models for digital content. The MPAA’s and RIAA’s efforts to secure remedy in the courts and Congress will neither provide resolution nor generate revenue in the market place.
Kenneth C. Green
Kenneth C. Green is the founding director of the Campus Computing Project and a visiting scholar at the Claremont Graduate University.
The concept of aggregating, sharing, and collaboratively enriching free educational materials over the Internet has been emerging over the past several years. The movement has been led by faculty members and content specialists who believe that making lesson plans, training modules and full courses freely available can help improve teaching and make educational resources more dynamic through a cross-pollination of ideas and expertise. The Hewlett Foundation-funded OpenCourseWare initiative and the Institute for the Study of Knowledge Management in Education’s OER Commons offer a glimpse of the potential for open content in higher education.
Unfortunately, the movement to use open educational resources in higher education hasn’t yet realized the full impact that its founders anticipated. Open content is still in its infancy and faces some technical and cultural challenges that affect its widespread adoption.
Interoperability -- the ability of multiple initiatives on different technology platforms to seamlessly share metadata and resources–is at the root of the technical challenge for open education resources. Like many initiatives in education, there is a tangled web of entry. People in higher education are accessing OER using numerous technologies, software applications, and Web sites. Content can be found in dozens and dozens of different formats. Meanwhile, some content is behind firewalls, while other content simply requires the user to create a free account, and some is truly open – like Wikipedia.
While the present lack of interoperability is a challenge, it is also the nature of innovation. For example, there used to be dozens of search engines, each of which produced varying results with different methods. Now there are a few major ones that produce similar results. We can expect that several major open content initiatives will survive on the basis of merit and that this diversity will strengthen the movement as a whole.
An even greater challenge may be the cultural resistance to open educational resources, including the closed-door, “this is mine” mentality and pride of ownership over content that pervades college teaching. Many college faculty members hold on tightly to their syllabi, readings, and lecture notes because this material closely follows a book or article idea that they are in the midst of writing. Or they fear that their ideas will be appropriated by others. Or there may be promotion review on the horizon, and this original scholarship might be their ticket to success. Or they may simply be reluctant to allow people they don’t know and to whom they haven’t given explicit permission to use and share the content of their course materials.
Issues of ownership and intellectual property rights are a related cultural – and legal – challenge. For example, it is unclear in many institutions who really owns faculty-produced content in the first place. Do faculty have the right to give away something that a university has already bought and paid for as part of their salary? Or does intellectual freedom and expression entitle faculty to freely own and license their ideas to others?
Ironically, a countervailing trend – toward openness and collaboration – also inhabits higher education, where the spirit of open educational resources has been prevalent for centuries. An individual instructor might create a syllabus and lecture notes that are then passed along to a group of instructors for a class that is then taught by 10 different people over five years. These economies of scale emerge to increase efficiency, which allows more time for research and professional service. Professors also may gravitate to syllabi and reading lists that elicit the best results from their specific students. In other cases, new faculty will take an old syllabus for a specific course and reshape it to match their own interests, research, or philosophies.
Recently, experts in education, open content– along with alternative-copyright advocates and Internet innovators – gathered in Cape Town to explore how to spark a global revolution in teaching and learning in which educators and students could be much more actively engaged as creators, users, and adapters of content. In their Cape Town declaration, they argued that this transformation can only occur if educators, authors, publishers, and higher education institutions make more materials available and accessible for public use. To speed acceptance of open content, the declaration calls on administrators to incorporate open education into policy decisions, making sharing of educational resources a new prioriity. The document emphasizes that open education is fundamentally about strengthening all scholarship and teaching through collaboration—and developing the technologies to make that happen. Open education should be a “win” for all faculty members and constitutes “a wise investment in teaching and learning for the 21st century.”
Points of debate at the Cape Town meeting focused on the value of licenses that allow for commercial or non-commercial use of content, and on the importance of enabling the modification and adaptation of the content. Other questions arose regarding the messages we were sending: Is the open education movement about practitioners or policies? How “disruptive” should the call to action be? Is this document for teachers and faculty or for others? The Declaration was not designed to articulate consensus. Rather, it communicates a common core of commitments that form the starting point for the worldwide OER movement.
The Cape Town meeting identified OER as a linchpin to a basic right. Just like food, shelter, and clean drinking water, everybody deserves access to education and knowledge.
While many may agree with this sentiment today, for the OER movement to have greater impact on higher education, colleges and universities need to create incentives to reward faculty for sharing their content. This might include developing new types of sabbaticals focused on creating the first generation of open educational resources. Foundations could even fund “remixing communities” focused on expanding and refining open educational resources.
In addition to faculty, whose scholarship can advance immeasurably faster with broad adoption of OER, students stand to benefit enormously. Open education holds the promise of opening the door of higher education to millions. For example, open content can reduce the need to purchase expensive textbooks, which can constitute up to three-fourths of community-college students’ spending. But even these benefits are not the final yield of the OER movement, which holds the promise of nothing less than finally ensuring that access to the highest-quality education is a right of all people, everywhere.
Lisa Petrides is president of the Institute for Knowledge Management in Education, a research institute in Half Moon Bay, Calif., that has developed OER Commons, which was funded by the Hewlett Foundation. Petrides, one of 27 participants at the Cape Town meeting of proponents of open content, is a former professor at Columbia University Teachers College.