Over the past few days, as perhaps you have heard, it has become more or less impossible to get hold of a copy of "Ready to Die" (1994) -- the classic (and prophetically named) debut album by the Notorious B.I.G., a gangster rapper killed in a shooting in 1997.
Well, perhaps "impossible" is overstating things. But expensive, anyway. Secondhand copies of the CD, recently selling for $6 each on Amazon, now fetch $40; and the price is bound only to go up from there. "Ready to Die" was withdrawn last week after a jury found that one of the tracks incorporated an unlicensed sample from a song originally recorded in 1992 by the Ohio Players -- the band best remembered for "Love Roller Coaster," a disco hit of the late 1970s. (Also, for an album cover featuring a naked woman covered in honey.)
Learning about the court case, I was, admittedly, shocked: Who knew the Ohio Players were still around? The Washington Post called them "funk dignitaries." Somehow that honorific phrase conjures an image of them playing gigs for the American Association of Retired Persons. They will be splitting a settlement of $4.2 million with their lawyers, which probably means a few more years on the road for the band.
Apart from that, the whole matter came very close to being what, in the journalistic world, is called a "dog bites man" story -- a piece of news that is not really news at all. Digital technology now makes it very easy for one musician to copy and modify some appealing element from another musician's recording. Now lawyers hover over new records, listening for any legally actionable borrowing. Such cases are usually settled out of court -- for undisclosed, but often enormous, sums. The most remarkable thing about the "Ready to Die" case is that it ever got to trial.
More interesting than the legal-sideshow aspect, I think, is the question of how artists deal with the situation. Imitation, allusion, parody, borrowing stray bits of melody or texture -- all of this is fundamental to creativity. The line between mimicry and transformation is not absolute. And the range of electronic tools now available to musicians makes it blurrier all the time.
Using a laptop computer, it would be possible to recreate the timbre of Jimi Hendrix's guitar from the opening bars of "Voodoo Chile (Slight Return)" in order to color my own, rather less inspired riffs. This might not be a good idea. But neither would it be plagiarism, exactly. It's just an expedited version of the normal process by which the wealth of musical vocabulary gets passed around.
That, at least, would be my best argument if the Hendrix estate were to send a cease-and-desist letter. As it probably would. An absorbing new book by Joanna Demers, Steal This Music: How Intellectual Property Law Affects Musical Creativity,published by the University of Georgia Press, is full of cases of overzealous efforts to protect musical property. Some would count as implausible satire if they hadn't actually happened: There was, for example, the legal action taken to keep children from singing "This Land is Your Land" at summer camp.
Demers, an assistant professor of music history and literature at the University of Southern California, shows how the framework of legal control over music as intellectual property has developed in the United States. It began with copyright for scores, expanded to cover mechanical reproduction (originally, via player-piano rolls), and now includes protection for a famous performer's distinctive qualities as an icon. Today, the art (or whatever it is) of the Elvis impersonator is a regulated activity -- subject to the demands of Elvis Presley Enterprises, Inc., which exercises control over "not only his physical appearance and stage mannerisms but also the very quality of his voice," as Demers notes. "Impersonators who want to exhibit their vocal resemblance to Elvis can legally do so only after paying EPE."
What the King would say about this is anybody's guess. But as Demers reminds us, it probably wouldn't make any difference in any case: It is normally the corporate "content provider," not the artist, who now has discretion in taking legal action. The process of borrowing and modifying (whether of folk music by classical composers or Bootsy Collins bass-lines by hip-hop producers) is intrinsic to making music. But it is now increasingly under the influence of people who never touch an instrument.
It is impressive that so trim a book can give the reader so broad a sense of how musical creativity is being effected by the present intellectual property regime. The author's note indicates that Demers, apart from her academic duties, serves as "a freelance forensic musicologist" -- one of those professional sub-niches that didn't exist until fairly recently. Intrigued by this, I asked her about it.
The term "is definitely over the top," she admits, "but I can't take credit for it. It just refers to music specialists who assess borrowings and appropriations, sometimes in the courtroom but most often before any lawsuits are filed." The American Musicological Society provides a referral list of forensic consultants, which is where potential clients find her.
She's been at it for three years -- a period coinciding with her first full-time academic post. "As far as I know," she says, "I don't get any credit at USC for this type of work. I'm judged pretty much solely on research and teaching plus a bit of committee work. I do have a few colleagues at USC who've also done this sort of work. It's a nice source of extra revenue from time to time, but as far as I know, there are only two or three folks around the world who could survive doing this alone full-time."
Demers is selective about taking on freelance cases. "Some are legit," she says, "while others are sketchy, so I try to be choosy about which cases I'll take on." At one point, she was contacted "by a person who was putting together a lawsuit against a well-known singer/songwriter for plagiarizing one of his songs. His approach was to begin by telling me how serious the theft was, but he wanted me to commit to working for him before showing me the two songs. Needless to say, we ended up not working together. Most cases, though, are preemptive in the sense that producer or label wants to ensure that materials are 'infringement free' before releasing them."
There is an interesting tension -- if not, necessarily, a conflict -- between her scholarship and her forensic work. "The challenge for me in consulting," as Demers puts it, "is that I have to give advice based on what copyright law currently states. I don't agree with many aspects of that law, but my opinion can't get in the way of warning a client that s/he may be committing an actionable infringement."
In reading her book, I was struck by the sense that Demers was also describing something interesting and salutary. All the super-vigilant policing of musical property by corporations seems to have had an unintended consequence -- namely, the consolidation of a digital underground of musicians who ignore the restrictions and just do what they feel they must. The tools for sampling, altering, and otherwise playing with recorded sound get cheaper and easier to use all the time. Likewise, the means for circulating sound files proliferate faster than anyone can monitor.
As a geezer old enough to remember listening to Talking Heads on eight-track tape, I am by no means up to speed on how to plug into such networks. But the very idea of it is appealing. It seems as if the very danger of a cease-and-desist order might become part of the creative process. I asked Demers if she thought that sounded plausible.
"Yes, exactly," she answered. "I don't want to come out and condone breaking the law, because even in circumstances where one could argue that something truly creative is happening, the borrower risks some pretty serious consequences if caught. But yes, this has definitely cemented the distinctions between 'mainstream' and 'underground or independent' in a way that actually bodes better for the underground than the mainstream. Major labels just aren't going to be attractive destinations for new electronica and hip-hop talent if this continues. And if there is a relatively low risk of getting caught, there are always going to be young musicians willing to break the law."
The alternative to guerilla recording and distribution is for musicians to control their own intellectual property -- for one thing, by holding onto their copyrights, though that is usually the first thing you lose by signing with a major label. "What I like to tell undergrads passing through USC," says Demers, "is that the era of mega-millions-earning stars is really coming to a close, and they can't expect to make large sums of money through music. What they should aim to do is not lose money, and there are several clever ways to avoid this, like choosing a label that allows the artist to retain control over the copyrights."
One problem is that artists often lack a sense of their options. "The situation is better than it used to be," Demers says, "but still, most artists are naive about how licensing works. They come with ideas to the studio and then realize that they must take out a loan in order to license their materials. Labels don't license samples; artists do. And if a lawsuit develops, most of the time, the label cuts the artist loose and says, 'It's your problem.' "
There is an alternative, at least for musicians whose work incorporates recontextualized sound fragments from other sources. "The simple way around this," she continues, is for an artist who uses sampling to connect up "the millions (there are that many) who are willing to let their work be sampled cheaply or for free."
But as Steal This Music suggests, the problem runs deeper than the restrictions on "sampladelia." Had the Copyright Term Extension Act (CTEA) of 1998 been enacted 50 years earlier, you have to doubt that anyone would have dared to invent rock and roll. The real burden for correcting the situation, as Demers told me, falls on the public.
"I am pretty confident that content providers will continue to lobby for extending the copyright term," she says, "The CTEA passed because of the pressure that Disney and Time Warner put on Congress, and was abetted by the fact that the public was largely silent. But we're at a different point than we were in the late 1990s, and organizations like Public Knowledge and Creative Commons and scholars like Lawrence Lessig have done a good job of spreading the word about what extending copyrights does to creativity. Next time Congress has a copyright extension bill in front of it, I hope that voters will get busy writing letters."
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.
We’ve all heard the stories of various professors who warned us of keeping extra copies of our dissertation drafts in a Ziploc bag in the freezer -- just in case something were to happen.
When I wrote my dissertation a few years ago, I never resorted to the frozen dissertation. Instead, I kept one copy on my home computer, another on my laptop, a third on my office computer, and, thanks to the ease of sending files via e-mail, I dispatched a copy to my trusted, long distance friend; I think I had other copies on a local friend’s computer. Additionally, there were multiple disk copies on various (now obsolete) floppies and zip drives kept in a number of locations. I learned quickly to save files with dates embedded in the names so I could tell which version was the most current one. So if my house burned to the ground or my whole town was magnetically tangled in a weird sci-fi meltdown, there would be at least one surviving copy of that dissertation.
Once the dissertation was completed, defended and revised, the fear of losing it subsided. There is, after all, a copy on file with the Library of Congress, and I could always order a copy from UMI dissertation services. The paranoia eased as the nightmares of not really finishing the dissertation and having to start all over again with a new Chapter One began to be a thing of the past. While the dissertation still contains some unpublished chapters that every now and again get glanced at to see if they meet the criteria of a certain call for proposals, new research projects have replaced the one that hung over my head.
So I began to research and write on new items and topics, as most who have gone through the dissertation process will admit to having nervous twitches every time they hear a catchword or phrase from their former project and need to move on. For me, it was “community” (or “the ‘C’ word,” on days I couldn’t even bear to say the whole name). And while I’m still interested in various communities and their connection to writing, writing processes and writers, it was time to move on to bigger and better projects.
I was starting a new book-length project and already had an interested publisher in it. So, after teaching the first half of the summer, I had the rest of the summer mapped out for me. In addition to the book project, I planned on revising a conference paper to expand it to a full length article and send it out for publication. And a chapter of the dissertation was being reworked for a peer reviewed journal.
Once the dissertation was behind me, paranoia about my scholarly work subsided. After all, who besides me would be interested in it (with the exception of my department chair, dean, those who review my work for tenure, and the journals/publications to whom I send my work)? No need for Ziploc freezer bags except to save the blackberries growing in the backyard that I couldn’t eat fast enough before they went bad. No need for multiple copies all over the country on various computers in the age of flash drives, when one could save almost the entire content of one’s computer on a one inch stick of 2 gigabytes, right? Every now and again I could e-mail a copy to my campus PC to have an additional back up, but with a laptop and two flash drive back-ups, I thought I was being overzealous with my system. This way, I could bring a flash drive to the library or my boyfriend’s place and plug in there rather than lug the laptop with me. The ease and portability of flash drive technology must be saving lots of ABDs much anguish and worry over their dissertations and other projects.
But then it happened -- in a flash, so to speak -- and I couldn’t have been more wrong. I returned home from a night at my boyfriend’s place and noticed a light left on and an interior door left open. At first, I didn’t think much of it. I turned off the light and shut the door. Then there were some items knocked over in the bathroom that I picked up and wondered for a minute how it happened, but didn’t really stop to think too long about it. Instead, I returned some phone calls, made some strong coffee, and then decided it was time to get to some writing done. I walked into my home office to turn on my computer and stopped short.
Where’s my laptop??? While it was a functioning laptop, I hardly ever unplugged it from the wall and the DSL modem -- I used it mostly as a desktop, as it was much newer and faster than my dissertation desktop that runs at a dinosaur’s pace. I had sent an e-mail right before leaving the night before, so I know it was there on my desk when I left. But it wasn’t there now. And I stood there dumbfounded.
I grabbed the phone but wasn’t sure who to call. I finally managed to remember 911 and got a dispatcher, to whom I told what had happened. The dispatcher connected me to the local police, who asked a number of questions and then wanted to know if I was in the house. “Yes, I’m in the house,” I said— “Should I not be?” I was told I may wish to wait outside for the police to arrive. Given that I’d been in there an hour, if someone was still in the house, I think I would have noticed. Still, I opened up my front door and waited in front of my house for a few minutes until they got there. The two officers went through my house and thought it was odd that someone would come in only to take a laptop that was two years old. My two back-up flash drives were also missing as was the power supply to the laptop. But the person(s) who took my computer were kind to leave me the DSL and printer connections and the other items in my office.
I told the cops that I am an academic and that all of my research was on the computer and flash drives. They asked if someone in the office was “out to get me” or if I had a disgruntled co-worker or student. I had finished teaching two summer classes the week before and all of the students had passed, so I didn’t think a student would attempt to rob me. And if a colleague really wanted to get me, s/he would have his/her chance as I was up for my fourth-year tenure review in a few weeks. As one of two compositionists in my department, I doubt any of my colleagues would want to sabotage my research or career. They’re mostly concerned that I publish in blind peer-reviewed journals.
Upon further examination of my house, the robber(s) stole my checkbook, cash, traveler’s cheques, some small electronics, a majority of my jewelry and watches -- and a pillow case off of my bed to put the loot in as they left. What they didn’t take, they returned to the drawers and closets, so I guess I’m fortunate that I had relatively thoughtful and neat robbers. The police haven’t been very helpful, but I’ve learned that there had been more than 20 robberies in my neighborhood in the previous week or so. The police also told me that fewer than 13 percent of robbery victims ever get any items recovered. While I was devastated that my grandmother’s jewelry was gone, I was sickened that my scholarly research had disappeared without a trace.
In the sleepless weeks following the robbery, I have met more of my neighbors than I had in the previous three years of living here. Some are nice; some seem rather odd; all are scared about becoming the next victim of a burglary. My passport, Social Security card, and birth certificate are locked in a safety deposit box at a nearby bank, which means I can’t decide on a moment’s notice to grab a flight to Paris, but I can live with that. I’ve also had an alarm system installed and no longer think of opening up a window to let in some fresh air. I haven’t been able to sleep more than two or three hours a night—even after the alarm system was installed. I feel violated and angry, and wonder how much therapy it will take before I am able to sleep through the night at home.
It’s hard to go back to the drawing board, so to speak, and start working on the book project and revisions again -- as much of what I did is gone and would have to be started anew. Looming deadlines float over my clouded head.
Perhaps those professors who put their dissertations in the freezer were on to something, though the police said that most thieves look in freezers and refrigerators for valuables. As a writing specialist, I have spent much time dealing with plagiarism. I never really considered someone physically stealing my computer, files -- my work -- as an act of plagiarism, but it is. I’m not sure where it’s safe to put one’s intellectual property. Laptops and flash drives are easy to steal. Thieves look in freezers for cash, jewelry and other valuables. Most non-college educated thieves would probably laugh at seeing an ABD’s dissertation chapters or an assistant professor’s articles under ice. If one can leave it on the university server, that is an option, but our server limits the amount of space available so large texts may not fit there. One can e-mail files to oneself, as I’ve done in the past, but then one must keep track of various drafts, e-mail accounts, and files, and deal with the limited space issue as well.
I’m not sure I have a better answer. I can honestly say that it never occurred to me that someone would think to break into my house and rob me. (After all, I was in grad school for nine and a half years; what could I possibly have that someone would want?) The laptop and flash drives are long gone, I’m sure. I just hope whomever took them wiped out the drives, as there’s also a concern now not only of intellectual property loss but of identity theft. I will never attempt to do my own taxes online, as I did on my laptop this year. Credit bureaus have been notified and watches were issued to my accounts; new credit card numbers and bank accounts were also issued, too. There’s a lot of paperwork victims of robberies must muddle through. Trying to remember PINS and passwords to reset bills to internet services and EZ-PASS was a nightmare.
I can’t totally protect myself from becoming a victim of another crime.
So do I contemplate putting my research on ice? Maybe I should resort to an obsolete computer no one would want or—better yet—a typewriter may be worth considering. While I’m not the most technically advanced person in my field, I don’t think I’m ready to abandon technology—I cannot fathom revision without a computer. I like the idea of flash drives. Unless there’s a fire, flood, theft, or one manages to run it through the washer/dryer, flash drives offer portability, but as technology becomes smaller, it is easier to steal or misplace. Laptops are also convenient. But I will no longer resort to only having my research at one location—home, office, or elsewhere. E-mailing files is probably the best way to make sure one has access to them in a flash, so to speak, when one’s flash drive goes missing.
Risa P. Gorelick
Risa P. Gorelick is an assistant professor of English at Monmouth University and co-chair of the Research Network Forum at the Conference on College Composition & Communication.
My corner of the Internet has been abuzz over a muckraking article that recently appeared in The Guardian on the subject of Facebook. Tom Hodgkinson, the highly principled slacker behind The Idler and author of How to Be Free, makes some familiar complaints: online friends are a pale imitation of face-to-face relationships, Facebook encourages high-schoolish obsession with popularity, it prompts its members to reveal too much about themselves, and it uses that information for commercial gain. But the article goes further. Facebook is not just an American-owned company with global ambitions. According to Hodgkinson, it’s highly influenced by a “neocon activist” board member and funded by a venture capital firm that has ties to the CIA. Their ultimate aim: “an arid global virtual republic, where your own self and your relationships with your friends are converted into commodities on sale to giant global brands.”
Ironically, The Guardian helpfully provides a “share” link so you can send the article to all of your Facebook friends.
One of the most interesting responses to this article bubbled up on A-Librarians, a forum for anarchist and radical librarians. (Yes, I am, in case you’re wondering. And “anarchist librarian” is not an oxymoron. Look it up.) While other lists were debating whether the article’s claims were credible, or whether Facebook is valuable regardless, the members of this list were getting down to philosophical basics. Why does the concept of property so thoroughly infuse our understanding of rights? Are our conceptions of privacy dependent on owning one’s individual “self”? If we own our identity, is our public persona a form of intellectual property, as a trademark is?
I don’t know the answers to those questions, which relate not only to Facebook, but the debates over Google’s project to digitize great university library collections, and the fights over access to journal articles written by professors whose institutions can’t afford to gain access to them. But as a librarian who is in favor of sharing ideas freely, these debates made me rethink the fundamental relationship between the individual’s desire to share their thoughts and experiences with others and the commercial entities that provide the distribution channel for that act of sharing. It seems to me the crux of the problem is that the profit motive influences both sides of the equation – differently.
Corporations like Google and Facebook are worth a lot of money, which is a bit odd. They don’t create their content, and what’s there, they give away for free. They mediate the space where we go to express ourselves, and where find out what others think. Sure, we have to put up with a bit of advertising, but that’s just a minor irritant for something that’s free.
But there is a cost.
These corporations provide us with a space to play, engage with others, and make connections. We get to build our own identities in a public way. In return, we give them (perhaps without realizing it) a panopticon view of our lives, a chance to gather data on what we think, do, read, say, enjoy, and with whom we associate -- our "communities of interest" in the parlance of the FBI, or "friends" in Facebook’s lexicon. It’s exceedingly valuable information because it can be sold to companies who want to follow trends and focus their advertising dollars on just those individuals most likely to respond. The more people involved, the more valuable the data.
Facebook embarrassed itself last fall by overestimating our enthusiasm for this exhibitionist social contract. They launched Beacon, a service that would send information about one’s online purchases to a Facebook member’s friends unless an obscure “opt out” box was checked quickly before it disappeared from sight. Their assumption was that everyone would enjoy sharing their shopping lists as much as their playlists -- your friend Mike just bought Hanes underwear and thinks you might want to buy some, too! -- but that idea hit an invisible barrier of resistance. Whoa, that’s going too far! We got cold feet when the commercial consequences of our sharing was made visible. The outcry, ironically mobilized through Facebook itself, forced them to back off.
But on the whole, the public is content to go along. Just give me a place to express myself to the world, and you can do ... whatever it is you do.
People trust these playful-seeming corporations to not do evil far more than they trust their government. In 2007, an ACLU poll found a majority of the public opposed warrantless wiretapping. Earlier, tens of thousands of people signed petitions opposing the government’s ability to track what they were checking out of libraries or buying at bookstores.
Libraries have always taken privacy seriously – not because it’s valuable in itself, but because it’s a necessary condition for the freedom to read whatever you want without risk of penalty. When the PATRIOT Act was passed, librarians checked to make sure their databases erased the connection between a book and its borrower as soon as the book was returned. That erasure, however, makes it harder to offer the kind of personalization, such as recommendations based on previous book choices, that the public increasingly expects from online systems. After all, it’s what they get from Amazon.
Suspicion of the government does not extend to corporations running the Web 2.0 playground. Those guys just seem so ... nice. And after all, if they give us the tools to tell people we read a good novel or like a particular band, why not let the company make a little money from it?
The complexities of private/public digital tradeoffs have been debated in many different contexts. Siva Vaidhyanathan has questioned why libraries, a public good, should partner with Google, a private corporation, to digitize their contents; aren’t we concerned that Google will control the most complete library in the world? Others defend the practice because – well, without Google’s deep pockets, it simply wouldn’t happen on so vast a scale. Besides, the books go right back on the library’s shelf once digitized. What’s the harm in sharing?
Let’s set aside the contentious copyright issue for the moment and concentrate on why Google is providing “free” resources. Unlike libraries, Google gets content for free, gives it away for free, and makes its money by being an enormous distribution channel for everything from physics research to 19th century scanned books to the latest YouTube video. By watching the traffic through those channels, they are able to provide highly-specific information on who’s interested in what. The more we use Google, the more information they accrue about what we’re using, and the more valuable that mountain of information becomes.
And, let’s face it: we have selfish motives, too. Social networking blurs self-expression and self-promotion. The idea of property and its exchange has so infiltrated our culture as a defining concept that many people do, in fact, think of their public persona as their brand. It’s important to “be out there.” Their lives grow more valuable as more people recognize and acknowledge their ideas, their tastes, and their interests.
This isn’t just a youthful obsession. Facebook has recently opened its service to everyone, regardless of school or college affiliation. A novelist I know was just advised by her agent to set up a Facebook profile to increase her online presence and engage in “relationship marketing” with potential customers. In other words, she’s expected to act as her own sock puppet so she can sell more books. Make friends and influence people.
Here’s the interesting paradox: The only way to increase the intellectual property value of your identity is to give it away. That’s the only way it can be shared, linked to and recognized by others. Trading a little personal information for a public platform, whether for personal expression or self-promotion (or both), seems a fair exchange.
Does this sound eerily familiar? It should.
As scholars, our ideas gain value as we make them public, and we have been historically myopic about the consequences of trading the rights to our ideas for access to distribution channels. This unexamined practice put us all over a barrel when publishers required the academy to ransom those ideas back through prohibitively expensive journal subscriptions for libraries. The personal advancement attached to making our ideas public only added to the problem; more publications translated into higher prestige. There was just too much stuff for libraries to buy back, and not enough budget. The Open Access movement is on track to significantly change the “terms of service” when it comes to scholarly communication. Though the battle’s far from over, we’ve made real progress.
But we’ve barely begun to examine the unintended consequences of the Faustian bargain we strike when we share content through privately-owned digital domains of the public sphere.
Tom Hodgkinson says we have a choice: we can help Facebook’s right-wing investors make a lot of money, or we can simply opt out of “this takeover bid for the world.”
But hold on – it’s our world. And we didn’t approach the problems of scholarly communication by ceasing to publish. We started by educating the community about the consequences and renegotiating the terms of our relationship with publishers.
Scholarly work isn’t the only form of communication worth fighting for. The privately owned digital public sphere is a fertile if febrile commons where millions of people play out their identities and share ideas. The bargains we used to routinely accede to in order to get our research published were easy to ignore because we personally benefitted from them. In fact, we didn’t read the fine print, and we didn’t anticipate the consequences. Something very similar is going on in social networking.
Scholars and librarians champion the value of free and open exchange of ideas for the public good. It’s time to take those values beyond the academy. If we made an effort to help the public understand the tradeoffs we make to be part of the digital social sphere, maybe we’d all think more critically about how our public identities are formed and exploited – for what they are worth.
Barbara Fister is academic librarian and professor at Gustavus Adolphus College.
Higher education recognizes patents as indicators of advanced research and innovation and as sources of significant revenue. Today, patents are facing a serious threat from lawmakers on Capitol Hill. The Patent Reform Act of 2007, passed by the U.S. House of Representatives last September and currently under consideration in the U.S. Senate, would raise the costs to obtain a patent, create new uncertainty as to the validity of patents, and place new limits on the damages that may be awarded to patent owners when their patents are infringed. These provisions could have significant adverse consequences for current and future patents and patent applications from higher education institutions.
Why should anyone but lawyers and technology transfer managers care about a seemingly obscure patent bill? Because raising the costs to obtain a patent will force institutions to either increase their cash outlays for patent prosecution or reduce the number of patent applications they file. More research that might have led to revenue streams for universities and inventors will be left unpatented -- simply given away by publication of the research. Reduced revenue inevitably leads to reduced funds available for future research. Fewer startup companies based on such research will exist because it is more difficult to obtain venture capital funding when the underlying research is not protected by patents. Repercussions will be felt by both inventors and administrators.
The bill as currently drafted has provisions that would ultimately improve patent quality by creating a new post-grant opposition period, reduce litigations brought in locations far from the homes of either party, and facilitate research collaborations, all of which are supported by a number of higher education associations, including the Association of American Universities, the American Council on Education, the National Association of State Universities and Land-Grant Colleges, the Association of American Medical Colleges and the Council on Governmental Relations. Despite the potential positive effect of parts of the bill, the overall impact of the legislation, as currently drafted, would be detrimental to colleges and universities.
The five associations noted above -- all representing university interests in patent reform -- have expressed their views to Congress via both formal testimony and numerous other communications. However, a non-university group, the Coalition for Patent Fairness, has circulated documents purporting to present the views of universities while seriously misrepresenting those views. To help maintain the patent system as a successful engine for innovation, college administrators and researchers need to make their own views on the bill clear to their Congressional representatives.
Higher education institutions should be particularly worried by four provisions of the legislation as currently drafted: those with respect to the determination of damages, mandatory prior art searches, a post-grant “second window” in which to challenge a patent, and the diversion of fees away from the patent office. These provisions will reduce the certainty and value of existing and future patents and will cast doubt on the ability of patent holders to receive proper protection for their inventions. This will undermine the ability of universities to bring their innovations to market and into public use.
Damages. The damages language in the current bill would restrict the ability of courts to apply all of the relevant factors and methods to calculate a proper damages award. Under current law, courts can consider almost any relevant factor under a variety of methods to determine the value of the invention and what damages should be paid to the patentee for infringement. The proposed bill would tell courts what factors to consider under particular circumstances. Despite the occasional headline-making award, courts are quite good at looking at the relevant factors and arriving at a proper damage award. If Congress mandates what factors to consider and what not to consider, courts will be forced to try to categorize inventions and make whatever shape peg is the invention fit into the particular-shaped hole created by the bill. This will result in years of uncertainty and unjustified damage awards as the new law evolves. The cost of such a new law will not only be in unjustified damage awards, but also in increased litigation costs as plaintiffs and defendants demand longer trials to argue about damages and also more appeals on damages issues. This provision will make it difficult for universities to get appropriate compensation when an infringement occurs and will also create tremendous uncertainty as to the value of a patent, thus making patents less valuable overall. Simply stated, the more uncertainty there is as to the value of a patent, the more difficult it is to license the patent and the less revenue a university or inventor will receive for a patent license.
To best represent the interests of colleges and universities nationwide, the damages portion of the Act should be changed so that damages are determined through a case-by-case analysis using appropriate economic factors and valuation methods rather than the restrictive valuation process the bill would impose. Such a change would go a long way toward preserving the economic interests of universities and encouraging further innovation by deterring infringement.
Mandatory search reports. The second problematic provision mandates that patent applicants undertake the expense of prior art searches and submit a search report and relevancy analysis to the patent office (so-called “applicant quality submissions”). While patent applicants are already required to submit prior art known to them, this provision will require an extensive and expensive search by applicants and a report explaining the submitted prior art, thus shifting the costs of such a search from the federal government to the applicants. This burdensome and costly exercise will likely lead to increased charges of inequitable conduct for failure to conduct sufficiently thorough prior art searches and for mischaracterizing the prior art in the relevancy analysis. This will further increase the length and cost of patent trials. By mandating such a search, the Act will make the patent application process even more complicated, more expensive and cause particular harm to non-profit and academic inventors.
Second window oppositions. The third troubling section of the Act relates to the open-ended post-grant review “second window.” The Act calls for a “first window” for post-grant review that allows patent challenges at the patent office within the first 12 months after the patent issues. (This is similar to the European system that provides for such challenges, but during a 9 month window.) However, the Act would also create a “second window” in which to challenge issued patents. This second window will have a detrimental effect on the certainty and value of patents. The second window makes patents susceptible to such challenges throughout the life of the patent, allowing different challengers to file serial challenges that could keep a patent under challenge for many years of its life, thus creating a disincentive for partner companies to license university technologies. It is in the best interest of universities that inter partes reexamination, allowed by the House bill but not by the Senate bill, be available instead of the more costly second window.
Fee diversion. Finally, one of the more troubling aspects of the House bill is the lack of a provision to prevent the diversion of fees collected by the patent office. (The Senate bill includes an anti-fee diversion provision.) Perhaps the single most important factor in improving patent quality is to improve the quality of patent application examination. For many years, the fees collected by the patent office have been diverted to the general treasury. For the past few years, Congress has chosen not to divert fees. However, to build and maintain a sufficiently large and highly qualified pool of experienced examiners, the patent office needs to be assured of consistent funding and not be at the whim of other federal budget requirements from year to year. Anti-fee diversion language should be included in any patent reform bill.
Currently, the full Senate is poised to consider the bill and over a dozen amendments that were proposed last month. But neither the bill nor the amendments remedy the fundamental flaws discussed above.
Lobbying is intense on both sides of the bill and a vote will likely come in the next few weeks. College officials should work to be sure the bill represents the interests of higher education.
Sheldon E. Steinbach and Bruce T. Wieder
Sheldon E. Steinbach is a partner in the postsecondary education practice at Dow Lohnes PLLC, a law firm that specializes in postsecondary education, intellectual property, communications and information technology. The former general counsel for the American Council on Education, he has been practicing higher education law for more than 35 years. Bruce Wieder is a partner at Dow Lohnes, specializing in patent law. A former engineer, he is an adjunct professor at Georgetown University Law Center and is registered to practice before the U.S. Patent and Trademark Office.