If you respond to this post, PLEASE DON'T HIT THE REPLY BUTTON unless
you prune the copy of this post that may appear in your reply down to
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be needlessly resent to subscribers.
In response to my post of 8 March titled "Re: Symposium on Copyright
at a Crossroads" [Hake (2006a)], Irascible Professor Mark Shapiro
(2006) wrote:
"It has been well-established that fair use does not include
widespread distribution of verbatim copies of the entire work. "
But as indicated by Phys-L's high-energy theorist and practicing
attorney Jack Uretsky (2006):
". . . . it's more persuasive to recount the facts of a particular
case, or cases, than to use the blanket phrase (by itself) "It has
been well-established". [The former] approach recognizes the truism
that courts only resolve individual controversies, they do not -
except in a very rough and imprecise sense - set policies. "
So I think it's fair to state that what Mark regards as "well
established" is, at best, problematic.
Nevertheless, Mark goes on to make a good case for NOT copying
material at his site <http://irascibleprofessor.com/> into discussion
list archives. Mark wrote [bracketed by lines "SSSSSSSSS. . . ."]:
SSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSS
". . . several of my guest commentators are professional writers, who
earn at least part of their income from their written work. Under
their agreements with me, they retain copyright to the content of
their commentaries. I allow this specifically so that they can
attempt to publish their work elsewhere after the 10-day exclusivity
period in my contract with them expires. Many of them do just that.
Putting their works in their entirety on the Internet, which is what
happens in practice to the content of many newsgroups and forums,
destroys the market for their work.
SSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSS
However, the Irascible Professor's site
<http://irascibleprofessor.com/> is extremely atypical in its dealing
with authors, and IMHO Mark's arguments are irrelevant to the usual
copying of newspaper and journal articles into discussion list
archives that's been the primary concern of this thread.
For example, in the typical cases I mentioned in my post of 8 March
"Re: Symposium on Copyright at a Crossroads" [Hake (2006a)], namely
"Big gaps appear in state, federal test scores" [Becker (2006)] and
"Proof of Learning at College" [Hake (2006c)], the authors of the
copied articles are, respectively, AP education writer Ben Feller and
an anonymous NYT editorial writer.
As far as I know neither Feller nor the NYT editorial writer: (a)
retain the copyright, (b) receive royalties for their articles, or
(c) suffer income reduction if their articles are copied into
discussion list archives. If anything, as indicated in Hake (2006b),
their incomes tend to be enhanced by the attention and prestige they
receive when their articles or editorials are more widely
disseminated to the academic and education communities.
Some responders to this thread have suggested that instead of copying
news report articles into discussion list archives it would be better
to simply give the newspapers' or journals' URL for the article, thus
avoiding all copyright problems. The difficulty is that most
newspapers give free access to their articles for only a short
period, after which one must either subscribe to the newspaper or
else pay a fee for the article.
For example, today I attempted to access the NYT editorial "Proof of
Learning in College" that appeared in the NYT of 26 February 2006,
and that I had copied into "Proof of Learning at College" [Hake
(2006c)] of 27/28 Feb. I went to the NYT website
<http://www.nytimes.com/>, clicked on "Editorials/OpEd" in the
left-hand column, and scrolled back to 26 Feb. I was not surprised to
find that in order to see the editorial I must either subscribe to
the newspaper or else pay a fee. Furthermore, even if I WERE to pay
the fee, the journalistic editorial, bereft of substantiation, would
not contain the valuable hot-linked academic references that I
supplied in the APPENDIX of my post.
Perhaps ITFORUM veteran Terri Buckner (2006) put the arguments for
open access best. In her ITFORUM post of 8 Mar 2006 titled "Re:
Symposium on Copyright at a Crossroads," Terri wrote [bracketed by
lines "BBBBB. . . "; my CAPS and insert at ". . . [......]. . ."]:
BBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBB
Dr. Hake (and myself) have been told that copying material that is freely
available over the Internet is a violation of a publishers policy. The
material is available to anyone who wants it upon the creation of a
personal account. . .[and is willing to pay for the article after its
free grace period ends - see below]. . . The personal account serves
no purpose whatsoever except marketing. In an international forum, it
can be problematic for some individuals outside of the US to access
those free accounts. So that leaves two choices. We can avoid any
discussion of educational issues that appear in the NY Times, the
Washington Post, or any number of other publications. Or we can
discuss the article among those who can access it.
But why would we leave anyone out? The articles have been completely
referenced so there is no attempt to steal anyone's intellectual
property. The publishers are not paying the authors based on sales or
making money themselves based on sales. Aren't those the basis of
copyright?
THE INTERNET WAS DESIGNED TO PROMOTE THE FREE ACCESS OF IDEAS AND
DIALOGUE. IT'S BEING MORPHED INTO A BUSINESS TOOL. SHOULDN'T WE AS
EDUCATIONAL PROFESSIONAL BE ON THE FOREFRONT OF WORKING TO PROTECT
ACCESS?
BBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBBB
Well said, Terri Buckner !!
Oh, one last thing. I disagree with ITFORUM manager Lloyd Reeber's
(2006) implication that my post "Proof of Learning at College" of
27/28 Feb [Hake (2006c)] was a "blatant infringement of copyright."
On the contrary, as indicated in Hake (2006a), that post appears to
be in compliance with the fair use provision of the U.S. Tax Code,
TITLE 17, CHAPTER 1, paragraph 107, as presented by the Cornell Law
School at
<http://www.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000107----000-.html>,
or more compactly <http://tinyurl.com/3z3r6> [courtesy
<http://tinyurl.com/create.php>. Yes, Jack Uretsky, I know that one
must delve into the legal literature to uncover the relevant cases,
but I don't have the time and, being a poor pensioner, don't have the
money to hire an expensive attorney like yourself.
I hope these contentious matters will be discussed at the 6th Annual
Symposium on Intellectual Property: "Copyright at a Crossroads: The
Impact of Mass Digitization on Copyright and Higher Education"
<http://www.umuc.edu/cip/symposium>, 14-16, June 2006. Adelphi, MD,
hosted by The Center for Intellectual Property at University of
Maryland University College <http://www.umuc.edu/distance/odell/cip/>.
"Conflict is the gadfly of thought. It stirs us to observation and
memory. It instigates to invention. It shocks us out of sheep-like
passivity, and sets us at noting and contriving. Not that it always
effects this result; but that conflict is a sine qua non of
reflection and ingenuity."
John Dewey "Morals Are Human," Dewey: Middle Works, Vol.14, p. 207.
Hake, R.R. 2006b. "Re: Symposium on Copyright at a Crossroads" online
at <http://listserv.nd.edu/cgi-bin/wa?A2=ind0603&L=pod&O=D&P=6224>.
Post of 7 Mar 2006 17:32:46-0800 to AERA-J, AERA-L, ITFORUM,
Math-Learn, Phys-L, PhysLnrR, POD, & STLHE-L.
Hake, R.R. 2006c. "Proof of Learning at College," online at
<http://listserv.nd.edu/cgi-bin/wa?A2=ind0602&L=pod&O=D&P=21791>.
Post of 27/28 Feb 2006 to AERA-L, AERA-J, ITFORUM, Phys-L, PhysLrnR,
POD, and STLHE-L. Evidently DELETED from the ITFORUM archives by
ITFORUM moderator Bev Ferrell.