the creeping (digital) death of fair use 11.02.2005, 1:13 PM
posted by ben vershbow
Meant to post about this last week but it got lost in the shuffle... In case anyone missed it, Tarleton Gillespie of Cornell has published a good piece in Inside Higher Ed about how sneaky settings in course management software are effectively eating away at fair use rights in the academy. Public debate tends to focus on the music and movie industries and the ever more fiendish anti-piracy restrictions they build into their products (the latest being the horrendous "analog hole"). But a similar thing is going on in education and it is decidely under-discussed.
Gillespie draws our attention to the "Copyright Permissions Building Block," a new add-on for the Blackboard course management platform that automatically obtains copyright clearances for any materials a teacher puts into the system. It's billed as a time-saver, a friendly chauffeur to guide you through the confounding back alleys of copyright.
But is it necessary? Gillespie, for one, is concerned that this streamlining mechanism encourages permission-seeking that isn't really required, that teachers should just invoke fair use. To be sure, a good many instructors never bother with permissions anyway, but if they stop to think about it, they probably feel that they are doing something wrong. Blackboard, by sneakily making permissions-seeking the default, plays to this misplaced guilt, lulling teachers away from awareness of their essential rights. It's a disturbing trend, since a right not sufficiently excercised is likely to wither away.
Fair use is what oxygenates the bloodstream of education, allowing ideas to be ideas, not commodities. Universities, and their primary fair use organs, libraries, shouldn't be subjected to the same extortionist policies of the mainstream copyright regime, which, like some corrupt local construction authority, requires dozens of permits to set up a simple grocery store. Fair use was written explicitly into law in 1976 to guarantee protection. But the market tends to find a way, and code is its latest, and most insidious, weapon.
Amazingly, few academics are speaking out. John Holbo, writing on The Valve, wonders:
Why aren't academics - in the humanities in particular - more exercised by recent developments in copyright law? Specifically, why aren't they outraged by the prospect of indefinite copyright extension?...
...It seems to me odd, not because overextended copyright is the most pressing issue in 2005 but because it seems like a social/cultural/political/economic issue that recommends itself as well suited to be taken up by academics - starting with the fact that it is right here on their professional doorstep...
Most obviously on the doorstep is Google, currently mired in legal unpleasantness for its book-scanning ambitions and the controversial interpretation of fair use that undergirds them. Why aren't the universities making a clearer statement about this? In defense? In concern? Soon, when search engines move in earnest into video and sound, the shit will really hit the fan. The academy should be preparing for this, staking out ground for the healthy development of multimedia scholarship and literature that necessitates quotation from other "texts" such as film, television and music, and for which these searchable archives will be an essential resource.
Fair use seems to be shrinking at just the moment it should be expanding, yet few are speaking out.
John Branch on November 2, 2005 5:01 PM:
The issue of Google's plans to scan published texts seems similar to Amazon's offering us the chance to search a PDF version of some of the books it sells. I'm pretty confident that this requires Amazon to have scanned every page of the book in question. I admit I haven't actively searched for any discussion of Amazon's practice, and it probably takes place on a much smaller scale than what Google is talking about. But I haven't heard any complaints about Amazon's practice, presumably because the authors, publishers, et al., believe that Amazon's scanning helps sell books. Which leads me to suppose that they object to Google's proposal because it doesn't.
ben vershbow on November 3, 2005 4:42 PM:
The reason no one is upset about Amazon's "Search Inside" is that it's an "opt-in" program: publishers have to specifically request for their book to be scanned. As for the whole books being scanned, I'm not sure that's true in the case of Amazon, which seems to give access to about 30 pages, plus front and end materials.
Google Print has run into trouble because it is "opt-out." In other words, they'll scan your book, without asking, unless you specifically instruct them not to. But in light of the uproar this has caused, they seem to have changed that policy. Google Print's rival, The Open Content Alliance, is strictly opt-in and has received nothing but praise.
Mike Madison on November 3, 2005 8:44 PM:
Some of us are indeed speaking out, but it can be difficult to find an audience.
jholbo on November 6, 2005 3:26 PM:
Thanks for the link and the post, ben. And thanks for the upstream post on the electronic literature collection. Very useful. I'd write longer but we'll be talking soon enough ...