ethical applications of free culture applied to art education: piloting chinavine as an interactive...
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ETHICAL APPLICATIONS OF FREE CULTUREAPPLIED FOR ART EDUCATION:
PILOTING CHINAVINE AS AN INTERACTIVE MODEL
by
JONATHAN E. LEDERMAN
A thesis submitted in partial fulfillment of the requirementsfor the Honors in the Major Program in Philosophy
in the College of Arts and Humanitiesand in The Burnett Honors College
at the University of Central FloridaOrlando, Florida
Fall Term 2010
Thesis Chair: Dr. Kristin Congdon
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2010 Jonathan Lederman
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ABSTRACT
Throughout the 20th century, copyright duration has been extended fourteen times.
Depending on the nature of the copyrighted work, these extensions allow copyright
duration to last the life of the author plus seventy years. Copyright extension has allowed
arbitrary and coercive institutions to unethically inhibit the human need for free creation.
The rise of the internet has given unprecedented visibility to the derivative nature of
creative work. By disallowing copyrighted material to be used in derivative works except
under the ambiguous fair use doctrine, the fundamental human need for free creation is
inhibited.
The purpose of this thesis is to demonstrate how intellectual property ownership
by coercive institutions can be unethically abused for greedy and destructive purposes.
The research examines legal precedent for abuse of intellectual property legislation,
including the fair use doctrine, in artistic and educational environments. Furthermore,
subversive behavior toward unethical practices of coercive institutions is revealed
through a critical analysis of internet communities, or intermunites. Intermunities such
as ChinaVine, in conjunction with the Creative Commons, enable educators and students
to bypass unethically inhibiting practices of intellectual property owners allowing for free
creative inquiry and free creation.
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DEDICATION
For the Reader: Without you this thesis would receive no reaction.
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ACKNOWLEDGEMENTS
My thesis would not be possible without the continued support of my committee,
parents and friends.
I am forever grateful to those on my committee: Dr. Kristin Congdon, Dr. Harry
Coverston, Dr. Terri Fine and Dr. Donald Jones. The feedback I have received has been
tremendously helpful and on point throughout the semesters. I am honored to have
worked with such incredible professors (and to have flaws in my argument pigeonholed
before the thesis was read).
I would like to acknowledge myparents unconditional love and commitment to
help me through this project. Even if I find my arguments to be completely wrong later in
life, their passion and support will continue to guide my way.
And all my dear friends, peers and everybody else who endured my ranting even
when it reached the point of pounding tables so hard the drinks spilled.
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TABLE OF CONTENTS
INTRODUCTION .............................................................................................................. 2
A Need for Creativity ...................................................................................................... 3
Focus ............................................................................................................................... 9
An Ethical Approach to Open Source Education .......................................................... 12
Problems of Licensing Freedom ................................................................................... 13
Ideas about Ethical Responsibilities ............................................................................. 19
Walt Disney, Inc. Creativity .......................................................................................... 21
A Deep-Seated Dilemma .............................................................................................. 25
CONTENT AND THE CREATOR ................................................................................... 27
Definitions .................................................................................................................... 27
What is Intellectual Property? ....................................................................................... 28
Copyright, Patents, and Trademarks ............................................................................. 29
Code of Content ............................................................................................................ 35
The Abuse of Content Rights ........................................................................................ 37
(Un)Ethical Applications of Content ............................................................................ 45
Ethically Subverting Intellectual Property Law ............................................................ 51
Progressive Returns ...................................................................................................... 57
THE RISE OF INTERMUNITY ...................................................................................... 59
Defining Community .................................................................................................... 59
The Rise of Intermunity ................................................................................................ 60
Communities in Cyberspace ......................................................................................... 62
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Maintaining Intermunity ............................................................................................... 65
Intermunity Technicalities ............................................................................................ 67
Emergence of Social Intermunity ................................................................................. 68
Loss of Individuality through Anonymity .................................................................... 71
Affinity Spaces as Positive Examples of Intermunity .................................................. 77
ETHICAL APPLICATIONS ............................................................................................. 87
Ethical Theories of Learning for Emerging Technologies ............................................ 87
Implementation with ChinaVine ................................................................................... 89
Conclusions ................................................................................................................. 102
APPENDIX: COMMUNITIES IN CYBERSPACE ....................................................... 106
Works Cited..................................................................................................................... 108
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"The rise of semiotic figuration in late twentieth-century art and theory must berecognized in order to accept the legitimacy and social value of Appropriation. Tounderstand Appropriation as transcending re-use or plagiarism one must accept that oursocial environment is increasingly determined by simulated signs, and that the realm of
the 'imaginary' has supplanted that of the 'real' in determining our sense of self andnature. As a result, artists now represent beer cans and coke bottles as readily as theyonce did apples and oranges.
"The semiotic basis of Post-Modern art is precisely what makes Appropriation bothcentral to and unavoidable in contemporary representation. The referent in Post-Modernart is no longer 'nature,' but the closed system of fabricated signs that make up ourenvironment. In the nineteenth century realistic painters from Thomas Cole throughClaude Monet strove to accurately represent nature as it appeared to the eye, divorcedfrom the cultural biases that had built up for hundreds of years. In the present century,culture functions as the ideal artistic referent. Consequently, contemporary artists likeJasper Johns, Andy Warhol, or David Salle should be free to reproduce our 'nature,' evenif some of it is made from commercial signs and imagery that are protected by copyrightand trademark." Excerpted from Naomi Abe Voegtli's Rethinking Derivative Rights, 63Brooklyn L. Rev. 1213, 1221-1222 (1997)
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INTRODUCTION
In 1935, Walter Benjamin wrote in reference to the invention of lithography in
The Work of Art in the Age of Mechanical Reproduction that "Pictoral reproduction
accelerated so enormously that it could keep pace with speech" (19). At that time, he had
no knowledge of the awesome power that would be unleashed by the internet and other
modern technological inventions. Benjamin also writes "reproduction has captured a
place of its own among the artistic processes" (20). Andy Warhol proved this statement
throughout the 1960s with works such as Campbell's Soup Cans andEight Elvises.
Today, artistic reproduction is increasing at a feverish pace, perhaps beyond anything that
Benjamin ever imagined.
The ability to communicate and reproduce information is greater than at any time
in the history of humankind. As students and educators, our epistemic responsibility
resides in our ability to harness and control that information in an ethical manner for
educational purposes. Creative inquiry, or the ability to read, write, and remix, is a critical
part of modern pedagogical methodology. Without creative inquiry, it may be that we all
become rote learners and function more like machines than human beings.
In 1971 during a debate titledHuman Nature: Justice versus Powerwith Michel
Foucault, Noam Chomsky states "If it is correct, as I believe it is, that a fundamental
element of human nature is the need for creative work, for creative inquiry, for free
creation without the arbitrary limiting effect of coercive institutions, then, of course, it
will follow that a decent society should maximize the possibilities for this fundamental
human characteristic to be realized (Chomsky.info 2010). In keeping with Chomsky's
ideas, the purpose of this thesis is to demonstrate and justify the ability for free cultural
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creation through ethical use of emerging information technologies in art education
environments.
A Need for Creativity
The notion of humanity without creative expression is a dreadful thought.
Chomskys belief thatA fundamental element of human nature is the need for creative
work... is necessary for a vibrant, expressive life (Chomsky.info 2010). InArts Inc., Bill
Ivey argues for necessary changes in the United States required to cultivate this need.
Ivey begins his argument with The Cultural Bill of Rights. Among other rights, Ivey
states that all people should have The right to an artistic lifethe right to the knowledge
and skills needed to play a musical instrument, draw, dance, compose, design, or
otherwise live a life of active creativity (ix). The right to an artistic life is an example of
what can be provided when free and open source ideas are applied to art education. In
turn, the need for creative work which is arguably a fundamental aspect of human nature
can be satisfied.
One might think that in order to be effective, art education would have to exist all
throughout school. Ivey explains More than 90 percent of public and private elementary
schools offer at least basic programs in music and visual art (107). Furthermore, Ivey
shows these programs continue to exist in more than three quarters of America's high
schools (107). On the surface, this seems like a good start for art education in America.
However, this is not the entire story. Bill Ivey states Although the numbers
suggest that nearly all U.S. high schools emphasize both music and visual art, it's music
that emerges as the 'big dog' of America arts education. (Ivey 108) In other words, the
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specific educational options which do not exist outside of the typical high school band do
not exist in many of America's high schools that claim to emphasize music and visual art.
To continue, Ivey believes high school bands are Frequently linked more closely
to the athletic department than the academic program (hence the revealing lack of
connection to mainstream academics) (109). Luckily for students in states such as
Florida, legislature has been passed that requires all public schools to factor art course
grades into student's GPAs (Ivey 109), but that does not stand for the entire country.
Often art courses are pushed to the outskirts of high school curriculum. In places
that are unlike Florida, art courses in high schools are considered elective. In many cases
advisors will push students who are striving for widespread college acceptance to take the
courses are that are more related to topics such as that covered on the FCAT (Florida
Comprehensive Assessment Test). The 2009 FCAT Test Design Summary states These
are courses are strictly limited to reading, writing, mathematics, and science. In turn,
scaffolding for arts education is pushed to the wayside.
In Convergence Culture, Henry Jenkins states "In a participatory culture, the
entire community takes on some responsibility for helping newbies find their way" (178).
This process is called scaffolding. In a classroom, scaffolding is most often provided by
the teacher, whereas in an online forum, scaffolding is provided by the community
(Jenkins 178).
There are other problems involved in providing scaffolding for arts education. To
better understand a key concern in providing creative thinking, the term 'free and open
source' must be defined. Free and open source most often refers to a specific ideology.
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This ideology is normally advocated by groups that support free and open source
software (FOSS) like Linux based operating systems. Unlike proprietized software, free
and open source software allows users to access the source code, i.e., the computer code
which makes the software function. However, free and open source is not just limited to
software, nor is the term completely unified in its origin and meaning.
The use of the word free, as in 'free and open source' is often incorrectly
associated to mean, [p]rovided without, or not subject to, a charge or payment, as in
free parking, or a free sample (Dictionary.Reference.com 2010). Yet in this context the
word 'free' means something quite different. Richard Stallman is best known for starting
project development on the GNU1 operating system (now commonly associated with
Linux) and establishing the Free Software Foundation. He defines free software as, A
matter of liberty, not price. To understand the concept, you should think of 'free' as in
'free speech', not as in 'free beer' (GNU.org 2010).
'Free and open source' is not a unified term because 'free software' and 'open
source' have fundamentally different backgrounds. With these different backgrounds
come two specific ethical perspectives. Originally, there was just free software. Around
1998, a branch of free software advocates split off and adopted the term 'open source'.
The decision to split was made since 'free' can have an ambiguous meaning.
Over time, the term 'open source' came to embody a method of development,
rather than a system of ethics applied to software rights. Rather than be given the full
1.GNU is a recursive acronym standing for GNU's Not Unix.
2. While these words are commonly attributed to Voltaire in the aforementioned letter, it has been argued
that they were first used by Evelyn Beatrice Hall under the pseudonym Stepen G Tallentyre in The Friends
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benefits of the freedom described by Stallman below, open source connotes the ability to
develop together, such as in grassroots political campaigning, or students collaborating on
an art or software project. Open source essentially means access to development for all.
In some cases, that may be access to computer code, a canvas, or the text file in
development. In 1710, near the origination of copyright through the Statute of Anne, most
often the source was the text. This has changed in 2010. No longer is the source code for
how a tool works able to be studied. Tools like Adobe Flash, Microsoft Windows, and
Adobe Photoshop are not transparent, i.e., they are proprietary. In many situations, you
may be breaking laws governing the rights of intellectual property by looking into the
code which makes these programs work.
Today, free and open source commonly carry the same meaning and intention.
While this is not always the case, it is important to remember the ethical values instilled
in free software, and in the big picture, free culture. Stallman defines the foundation of
this ethical system as containing four essential freedoms:
The freedom to run the program, for any purpose (freedom 0). The freedom to study how the program works, and change it to make it do
what you wish (freedom 1). Access to the source code is a precondition for
this.
The freedom to redistribute copies so you can help your neighbor (freedom 2).
The freedom to distribute copies of your modified versions to others (freedom
3). By doing this you can give the whole community a chance to benefit from
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your changes. Access to the source code is a precondition for this (GNU.org
2010).
Remember, these freedoms need not apply solely to computer code. They can be applied
to educational sources, specifically the arts where creativity is of utmost importance. The
ability to create, share, and learn must not be suppressed.
Chomsky claims inHuman Nature: Justice versus Powerthat this fundamental
human need for free creation should not be hindered by The arbitrary limiting effects of
coercive institutions... (Chomsky.info 2010). What exactly are these coercive
institutions and how are they limiting free creation? Corbis Corporation is the perfect
example of a coercive institution. Katie Hafner effectively sums up Corbis in her April
2007New York Timesarticle, A Photo Trove, a Mounting Challenge.She wrote, In all,
Corbis represents or owns the rights to more than 100 million images, including some of
the most famous photographs everArthur Sasses photo of Einstein sticking his tongue
out and Marilyn Monroe on the subway grate. And Corbis handles the licensing of
millions of other images on behalf of thousands of photographers" (NYTimes.com 2010).
What does ownership of images portend for the rest of us who dont own, but
want to utilize an image to enhance our communication? As it turns out, ownership of
images has its rewards and Corbis is the beneficiary. Corbis arbitrarily limits the ability
for free creation and inquiry by charging exorbitant fees for non-owners to use most
intellectual property they own. The photos in Iveys bookArts, Inc. are included to help
illustrate ideas and concepts, and the majority are licensed and owned by Corbis. To
make a point, inArts, Inc. Ivey includes the licensing fee charged for any photo,
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including those not owned by Corbis. Readers quickly become aware that Corbis images
are expensive, limiting the number of people who can afford to create with them.
To further develop this message, Ivey includes the famous photo of JFK Jr.'s
salute at his father's funeral. That photograph is a cultural icon depicting a very young
son offering a final tribute to his dad, the President of the United States. This image is
owned by Corbis and the image has a $330 price tag attached for a quarter-page sized
placement on the inside of the book. Not only is this image of cultural heritage a
corporate asset, but it's an asset that costs over $300 for use. If you agree with Ivey, as I
do, the need to have the right to freely explore and learn about our historically important
cultural heritagefree of exorbitant fees is necessary.
According to Chomsky, It will follow that a decent society should maximize the
possibilities for this [need for free creation and free inquiry as a] fundamental human
characteristic to be realized (Chomsky.info 2010). One way of accomplishing this is
through the Creative Commons. According to their website, the Creative Commons is a
non-profit organization working to increase the amount of creativity (cultural,
educational, and scientific content) in 'the commons'the body of work that is available
to the public for free and legal sharing, use, repurposing, and remixing"
(CreativeCommons.org 2010). In essence, the Creative Commons has established the
modern foundation for free culture.
Lawrence Lessig is credited as a founder of the Creative Commons. In Lessig's
book, Free Culture,he defines the Creative Commons as A non-profit corporation
established in Massachusetts, but with its home at Stanford University. Its aim is to build
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a layer ofreasonable copyright on top of the extremes that now reign. It does this by
making it easy for people to build upon other people's work, by making it simple for
creators to express the freedom for others to take and build upon their work (282). This
layer of reasonable copyright is built by shifting the baseline protections of copyright
from 'All Rights Reserved', to 'Some Rights Reserved'.
Focus
This thesis will focus on the existence of the concept of free culture applied to
education as exemplified by the ChinaVine research project. ChinaVine is maximizing
possibilities of open and free education by providing original and academically sound
research that is licensed with the Creative Commons through an online medium,
chinavine.org. ChinaVine's goal is to make information available for anyone who wishes
to learn about the material and intangible culture of China through an interactive, on-line,
educational resource. This is how free culture can be ethically applied to art education.
Plagiarism is a common concern warranted in today's academic environment.
Along with the great ability to communicate and disseminate information comes the
necessary concern of how to do so ethically. Modern technologies allow for digital
transmission of intellectual property with great ease. As soon as an author or inventor
signifies original expressive content to be protected by copyright, the content remains
protected for the life of the author plus seventy years. This thesis will demonstrate that
licensing content under a free and open source ideology does not attribute to the unethical
use of content. Rather, through open source access, educational information is provided
to many more to whom this was not previously available.
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Although this thesis is focusing specifically on chinavine.org as a medium for free
creative inquiry to flourish within, many other organizations and projects are also
promoting the same ideology. Organizations such as OpenEducation.net, the Electronic
Frontier Foundation, the Creative Commons, and MIT's OpenCourseware are just a few
examples of the vast array of emerging programs being developed for the benefit of
humankind's need for a free and vibrant expressive life. For the most part, all of these
organizations have licensed their material with the Creative Commons.
Is this surge in the ability of emerging technologies to be used for learning,
communication, and reproduction healthy? Jaron Lanier believes that the emphasis on the
role of the crowd is dehumanizing when juxtaposed to individual thought. Does it
promote education and a breadth of knowledge amongst students; or is it merely creating
us to be tools in the shed? Lanier believes that Web 2.0 communities such as Facebook
and 4Chan cause us to function like cogs in a machine, rather than individual people. He
is partially correct. When people become caught up in the flow of popular opinion, in
some ways loss of freedom of thought can occur, and thus the uniqueness that makes us
all individuals.
In his bookYou Are Not a Gadget,Laniers concern is with the drove of internet
noise and nonsense on message board websites such as 4Chan.org. It is these websites
that exhibit the surging trends of popular internet culture, often referred to singularly as
an internet meme. Lanier argues that contributors to spaces like 4Chan.org lose
individuality by joining the herds of participants, thus becoming more like gadgets or
inventions, rather than freely creative human beings. Message boards on 4Chan.org are
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more like playgrounds of the internet. They have absolutely every right to exist, but no
one should be spending all of their time at the playground.
Yet the question begs to be asked: is the loss of individuality through anonymity
really what is happening in society? Are we simply becoming each others' tools with no
master blueprint to follow as Lanier alludes? Perhaps the emergence of remixed culture
as a new form of expression should be fine tuned by educators to establish and evolve
student's minds to their fullest potential. Henry Jenkins writes in Convergence Culture
that because of participatory aspects of the internet such as discussion boards and forums,
also known as affinity spaces students are able to become better writers and thinkers in
formal educational environments (177). When one adds constructive criticisms that can
now be provided through feedback and peer review, these spaces can arguably emerge as
very powerful tools for learning and teaching.
The multitude of opportunities for expression generally accompanied by incorrect
opinion in many informal affinity spaces still deserves attention. John Stuart Mill writes
in On Liberty that "If all mankind minus one were of one opinion, mankind would be no
more justified in silencing that one person than he, if he had power, would be justified in
silencing mankind" (33). Mill continues to write "He who knows only his own side of the
case knows little of that. ...[If] he is equally unable to refute the reasons on the opposite
side, if he does not so much ask now what they are, he has no ground for preferring either
opinion" (33).
Again, educators need to recognize the ethical and epistemic responsibility
necessary to demonstrate that incorrect opinions exist. More so, educators need to
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diligently stand up and correct, indeed prove those opinions wrong in the minds of the
pupil with proper factual evidence supporting truth and wisdom. As Voltaire wrote in a
letter to M. le Riche on February 6, 1770, "I detest what you write, but I would give my
life to make it possible for you to continue to write" (WikiQuote.org 2010).2
The same
way of thinking applies to the freedom of expression empowered by the internet. Now in
ways unprecedented in the past, scholars and educators can provide experience and
wisdom by utilizing the very same means some people believe are corrupting youth.
Proper understanding of how to ethically utilize the numerous and powerful
communicative tools empowered by the internet can lead to a better participatory learning
environment.
Jenkins argues that "A good pedagogical process works in a step-by-step fashion,
encouraging kids to try out new skills that build on those they have already mastered,
providing support for these new steps until the learner feels sufficient confidence to take
them on their own" (178). With the rapid rise of the internet, and subsequently its online
communities, the ability to learn from communities which are doing this ethically and
responsibly is what must be demonstrated in contemporary classrooms.
An Ethical Approach to Open Source Education
A portion of this thesis focuses on providing scaffolding in classrooms for online
communities. The mission of the arts education website, chinavine.org, is To educate
English-speaking children, youth, and adults about the material and intangible culture of
2. While these words are commonly attributed to Voltaire in the aforementioned letter, it has been argued
that they were first used by Evelyn Beatrice Hall under the pseudonym Stepen G Tallentyre in The Friends
of Voltaire (1906). A definitive answer has yet to be established.
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China (chinavine.org 2010). The official content and research provided on
ChinaVine.org is licensed under the Creative Commons. Creative Commons Founder
Lawrence Lessig states inRemix that "The Creative Commons has shifted the copyright
baseline through the voluntary acts of copyright holders" (17). In this manner, content on
chinavine.org is allowed freedom to be redistributed not permitted since 1774 in
Donaldson v. Beckett where by ruling of the British House of Lords "Continued existence
of a perpetual common law copyright..." was denied, and, in the words of Lessig "the
works of Shakespeare werefreed (Lessig 2002).
This thesis will demonstrate how the ethical use of emerging information
technology results in epistemic responsibility that can and should, indeed must, be taught
to current and future students. Ethical uses of emerging technology must meet the same
standards which exist in academia today such as expunging cheating, plagiarism, and data
fabrication. This is being practiced by members of the ChinaVine research team who are
striving to build a quality and scholarly community around the content that has been
researched and documented on traditional Chinese folk art and cultural heritage. By
building a community around the foundation that ChinaVine has established, students,
scholars, and adults and children alike can come to a creditable, academic, online
resource for information on Chinese culture. Through this community, people will be able
to establish friendships and networks both at home and abroad, whilst educating
themselves from an academic online source on all things pertaining to the intangible
culture of China.
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Problems of Licensing Freedom
In Thomas Friedman's 2000 publication, The Lexus and the Olive Tree, he
discusses the democratization of information as a major factor toward understanding
globalization. While the focus of this thesis is not specifically on globalization,
Friedman's story involves critical factors that demonstrate troubles with the same
situation contemporary academic systems are facing.
Due in part to the internet, satellite dishes, and other telecommunications tools,
Friedman believes we can now [s]ee through, hear through, and look through almost
every conceivable wall (59). This is especially true in countries such as China, where
there is governmental regulation on internet traffic. During a recent trip to China, one of
the questions I heard most frequently is, Do you know about Freegate?
In short, Freegate is a program that allows people to access the internet through a
server that is located outside China, even if they are in mainland China. By doing this,
anyone using the program in China can access websites which might otherwise be
restricted by the Chinese government. In essence, the server provides unregulated internet
access to anyone with a connection, as long as they are connecting with the Freegate
program.
Yet Friedman's story does not talk about censored internet access, but the inability
to have access at all, at least within legal boundaries. Friedman tells a story relayed by
John Burns, who was theNew York Times bureau chief during the late 1990s in New
Delhi. Burns was stationed at a friend's home with four satellite dishes on the roof costing
thousands of dollars per year. These satellites provided cable television, but not all of it.
Unfortunately, despite what was nearly an entire up-link station on the roof of the house,
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the Indian television channel broadcasting the World Cup was still unable to be received.
Allegedly, it had something to do with the weather interfering with satellite reception.
One morning, Burns complained to Abdul Toheed, a friend who has lived in India
since he was a boy. He protested about his inability to watch the World Cup even with all
of the satellites and technology sitting on the roof. Toheed explains to him he has all the
channels on his TV, and invites him back to his quarters. To Burns' surprise, Toheed's
wife is listening to the BBC. Knowing that she didn't speak English, Burns asked Toheed,
What is she doing? Toheed responded, She's learning.
What is enabling Burns' Indian friend to have this access? Burns relates [Toheed]
has just gotten some friend of his who has his own pirate cable system to run a cable
along the telephone wires and into his house behind my house. It was all unofficial and
illegal, but he now lives in the wired world and his wife is learning English. Meanwhile,
I'm still struggling to get Indian television (60).
To reiterate, this story took place in 1998. Within it lies an excellent example of
the democratization of cable television, as well as the means to obtain that technology.
Yet the means taken to obtain that content are illegal. They are illegal by the same
principle China sets as precedent for its internet usage policy. The methods Chinese
people have to take in order to receive content on the internet often requires subversive
behavior to reach the content they desire. Yet, regardless of legality, people will often go
to any means necessary to obtain information they need, whether it's ethical or not.
Before I went to China, I didn't have knowledge of Freegate, or how many
Chinese actually used the program. When I returned home, I made contact with many
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Chinese students I met who live in Hangzhou, Shanghai, and Beijing on Facebook. For
the record, Facebook is completely censored in China along with websites such as
YouTube, and nearly anything that claims to be a blog. The fact of the matter is that the
internet has pushed this democratization of information and technology far above and
beyond anything technology that has thus far been to the aid of human beings.
Internet censorship in the Peoples Republic of China (PRC) is a contemporary
subject surrounded by heated debate. For many people, free speech is considered an
unalienable right - one which cannot be suppressed by an agent outside of the individual.
However in some countries such as China, this unalienable right comes with arguably
unethical restrictions.
It has been stated that the first priority of the Chinese Communist Party (CCP) is
to keep the Chinese Communist Party in power. In turn, ideas and opinions against the
CCP are generally disallowed in regions governed by the CCP. This includes censorship
of many outlets for free creation and expression on the internet such as YouTube,
Facebook, and any personal blogs. Websites such as WordPress.com, host to hundreds of
thousands of personal blogs, are banned across the PRC.
This policy was first enacted in 1993 and updated in 1997 by the Temporary
Regulation for the Management of Computer Information Network International
Connection. Article four of this policy states No unit or individual may use the Internet
to harm national security, disclose or to take part in criminal activities (LehmanLaw.com
2010). Furthermore, Article five states No unit or individual may use the Internet to
create, replicate, retrieve, or transmit the following kinds of information
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1. Inciting to resist or breaking the Constitution or laws or the implementation ofadministrative regulations;
2. Inciting to overthrow the government or the socialist system;3. Inciting division of the country, harming national unification;4. Inciting hatred or discrimination among nationalities or harming the unity of the
nationalities ... (LehmanLaw.com 2010).
In addition to such regulations, the Golden Shield Project, also known as the Great
Firewall of China, has been enforced to improve the efficiency and capabilities of the
police.
The Golden Shield Project functions by blocking particular internet protocol (IP)
addresses from being routed into China. Computers that serve internet connectivity to
people in the PRC are programmed to drop connections, or quite literally send users into
time out. The function of a Domain Name System (DNS) is translating a Uniform
Resource Locator (URL) into an IP address in order to make the internet more human-
friendly. Internet users can be subjected to time out when the DNS in use is poisoned to
return invalid translations of URLs for a specific amount of time.
To help understand the nature of the Golden Shield Project, Marco Donnarumma
has created Golden Shield Music, a Multi-channel generative sound installation for
censored Internet Protocol (IP) addresses (MarcoDonnarumma.com 2010). According to
Donnarummas website, This same technology [powering the Golden Shield Project]
has been semantically displaced and re-used by the author to create a generative piece of
music which doesnt focus on the structure or aesthetic of the composition, but simply
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makes a free, creative use of a technology ideated to subtly constrain the freedom of the
Internet as a global Network (MarcoDonnarumma.com 2010).
Such tactics as employed by the Golden Shield Project, sometimes viewed as
wholly unethical in the United States, are the norm in China. Even so, much of the
younger Chinese generation is finding a way around this unethical treatment of free
expression. There are many programs such as Freegate that completely bypass internet
restrictions imposed by the Chinese government, thus allowing Chinese youth to
communicate with their friends across the Pacific Ocean via Facebook. These are not
people who are deliberately subverting government powerthey are keeping in touch
with and establishing relationships for a brighter future. In this situation, which is more
unethical: breaking the law, or having restriction of expression arbitrarily imposed on
human beings?
To bring this concept back home, it's because of programs like Freegate that I can
now freely communicate and share information with my Chinese friends. Of course, there
are alternative means of accessing the internet, and by extension, being in contact with
the Chinese people. However, are the ways and means taken to defy government
censorship ethical? Or is it the government censorship unethical to begin with?
These same questions apply to our current academic environment. From
elementary school through college, students are using computers and the internet to
explore learning opportunities and develop perspectives and ideas about subjects they
previously had not known about. Is it the ability to have complete access to the
information necessary for free creation and creative inquiry unethical? Or is it the
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restriction imposed on the flow of information by coercive institutions such as the
Viacom, the Disney Corporation, Clear Channel, AOL/Time Warner, News Corp, the
Recording Industry Association of America, the Motion Picture Association of America,
the Chinese Government, and the Corbis Corporation that is unethical?
Ideas about Ethical Responsibilities
According to George Reynolds in his publication, Ethics in Information
Technology,Ethics are beliefs regarding right and wrong behavior. Ethical behavior
refers to behavior that conforms to generally accepted social norms (4). Even so,
downloading music and textbooks illegally from the internet is decidedly an accepted
social norm, but it is also widely regarded as an unethical practice. In the end, these
ethical rules are often subjective. Some believe pirating software holds no ethical
violation whatsoever. These people likely make the argument that all computer code is
just numbers, including that which constitutes a music or video file, and numbers cannot
be owned. They say that software patents are of no value. Yet, this view is rather extreme
and easily refutable.
If you're one to agree with Immanuel Kant, you might believe you have a duty to
adhere to ethical beliefs which constitute a highly esteemed good will. This is a will that,
to use Kant's example, exists within the tradesman who never overcharges inexperienced
purchasers. Kant argues that acting in this manner is always a matter of duty (57).
Perhaps it is this matter of duty and good will inherent to humans that allows for
the successful editing of millions of Wikipedia articles. Or the perpetuating existence of
thousands of discussion boards and websites supporting the betterment of education and
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knowledge, such as ChinaVine, OpenCourseware, and OpenEducation.net, i.e.,
educationally geared free and open source operating systems such as Edubuntu3.
Even so, for the most part, Kant would probably agree with the current system for
intellectual property established in the United States. Copyrights are established to
protect the intellectual property of the creator, thus disallowing misuse and destruction of
their work. In this respect, copyrights are wholly necessary.
That is until copyrights are abused for monetary gain at the expense of creators.
When the Framers of the United States Constitution created copyright protection, they
probably did not envision a power to copy material like the internet has allowed for. The
ability for Congress to establish rights to creative property is set down in Article I, section
8, clause 8 of the United States Constitution. It reads, Congress has the power to
promote the Progress of Science and useful Arts, by securing for limited Times to
Authors and Inventors the exclusive Right to their respective Writings and Discoveries"
(Cornell.edu 2010). Initially, these rights did not specify any duration or content medium.
The only specification made is a word: limited.
In 1790, the first law regulating the duration of copyright was established by
Congress. This law established a federal copyright that granted exclusive rights to the
author of a creative work for fourteen years. At the end of the fourteen years, copyright
holders could renew their copyright, extending the term of exclusive rights to twenty-
3. Linux based operating systems are becoming more widely known, especially with thedevelopment of distributions such as Ubuntu and Mint. Canonical software, along with the Ubuntucommunity which consists of millions of users across the planet, has even released special editions ofUbuntu for specific purposes.
Edubuntu is a Linux distribution targeted for schools and other educationalenvironments. Edubuntu contains software specifically tailored to educational purposes such as the KDEEdutainment Suite, Gcompris, the SchoolTool Calendar, and the Linux Terminal Server Project thin client.
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In '65 copyright terms are extended to 61 years. Mickey passes into the publicdomain in 1989.
In '67 copyright terms are extended to 63 years. Mickey passes into the publicdomain in 1991.
In '68 copyright terms are extended to 64 years. Mickey passes into the publicdomain in 1992.
In '69 copyright terms are extended to 65 years. Mickey passes into the publicdomain in 1993.
In '70 copyright terms are extended to 66 years. Mickey passes into the publicdomain in 1994.
In '71 copyright terms are extended to 67 years. Mickey passes into the publicdomain in 1995.
In '72 copyright terms are extended to 68 years. Mickey passes into the publicdomain in 1996.
In '74 copyright terms are extended to 70 years. Mickey passes into the publicdomain in 1998.
In '76 copyright terms are extended to 75 years. Mickey passes into the publicdomain in 2003 (Lessig 2002).
Then, in 1998, five years before Mickey passes into the public domain, copyright
terms are extended to ninety-five years. This puts the passing of Mickey Mouse into the
public domain into 2023. Following this, in addition to the Walt Disney Company
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lobbying for the Sonny Bono Copyright Term Extension Act, Mary Bono took the floor
of the United States House of Representatives and stated
Actually, Sonny wanted the term of copy-right protection to last forever. I am
informed by staff that such a change would violate the Constitution. I invite all of
you to work with me to strengthen our copyright laws in all of the ways available
to us. As you know, there is also JackValentis proposal for term to last forever
less one day. Perhaps the Committee may look at that next Congress (H9952
CONGRESSIONAL RECORDHOUSE October 7, 1998).
The Sonny Bono Copyright Term Extension Act (CTEA) granted an additional
twenty years to copyright protection. This allowed for Mickey Mouse to be protected by
copyright for a minimum term of the life of the author plus seventy years, and for works
of corporate authorship, one hundred and twenty years. Lessig states, The meaning of
this pattern is absolutely clear to those who pay to produce it. The meaning is: No one
can do to the Walt Disney Corporation what Walt Disney did to the Brothers Grimm
(Lessig 2002). Many works by Walt Disney (and Walt Disney, Inc.) were inspired by the
Brothers Grimm, among many other sources. Comprehensively, the amount of derivative
work created by Walt Disney and Walt Disney, Inc. is astounding. The majority of these
derivative works are Snow White (1937), Fantasia (1940), Pinocchio (1940),Dumbo
(1941),Bambi (1942), Song of the South (1946), Cinderella (1950),Alice in Wonderland
(1953),Robin Hood(1952), Peter Pan (1953),Lady and the Tramp (1955), Sleeping
Beauty (1959), 101 Dalmatians (1961), The Sword in the Stone (1963), The Jungle Book
(1967), andMulan (1998) (Lessig 24).
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As shown by the extension of copyright terms, works existing in the public
domain are essentially limited to before the Great Depression. Derivative works are more
than mere duplication. The important distinction is the amount of difference between the
original and the derivative. In Walt Disney's situation, the difference between works of
the Brothers Grimm and Disney is extraordinary. Disney's remixed old tales with
exceptional talent which enabled his creativity to be enjoyed by millions of families.
Sadly, United States intellectual property law no longer allows for the derivative
creativity Walt Disney masterfully exemplified.
There are many others such as James Gosling who believe principles of patents
and copyright are useful, but can be easily abused. Gosling is a former employee of Sun
Microsystems and the founder of the Java programming language. The ease of obtaining
a relatively absurd patent is expressed clearly by Gosling's in some of his latest blog
posts. He writes,
Sun didn't file many patents initially. But then we got sued by IBM for violating
the 'RISC patent' - a patent that essentially said 'if you make something simpler,
it'll go faster'. Seemed like a blindingly obvious notion that shouldn't have been
patentable, but we got sued, and lost. The penalty was huge. Nearly put us out of
business. We survived, but to help protect us from future suits we went on a
patenting binge. Even though we had a basic distaste for patents, the game is what
it is, and patents are essential in modern corporations, if only as a defensive
measure. There was even an unofficial competition to see who could get the
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goofiest patent through the system. My entry wasn't nearly the goofiest
(Nighthacks.com 2010).
Due to the abundance of copyright term extensions, Gosling's dilemma is shared by
creators throughout the United States.
A Deep-Seated Dilemma
Why are students so apt to blindly copy and paste in the first place? Is it because
this something we are taught to do with paper and glue from kindergarten? I remember
how attentive I had to be during that exercise, lest I cut my finger off. I suppose when
you're in kindergarten, you have a piece of paper with dotted lines that you cut, and
another piece of paper with a spot that's just ready and waiting for the figure inside the
dotted lines to be glued on top.
Extend that exercise 15 years into the future, and now college students can write
papers by cutting text out of the less-visible dotted lines of a published article, and simply
pasting into their own work. Do they know how to properly verify their source? Or are
students cutting blindly through the fabric of the internet, only to skew original meaning,
take paragraphs out of context, and reinsert them without any understanding of what the
original author said? If the former is true, in many cases these students do not do so
properly. If the latter is true and they do not attribute credit at all, they should be learning
how to do so.
Either way, if a student has learned to blindly cut and paste content, they are not
only breaking intellectual property laws, but ignoring academic rules defined by their
school as well. This is an obvious case of plagiarism, and unfortunately it can be seen in
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many papers students are writing. It's an unfortunate situation when a peer reviews a
paper only to find information literally ripped out of Wikipedia. Some can't even be
bothered to cite the source listed in the reference section for any given Wikipedia article.
This is part of the epistemic responsibility for academic institutions to maximize the
potential of a truly amazing tool.
Perhaps it's the school that should be teaching youth to cut and paste in an ethical
manner. Perhaps its the students responsibility to uphold current academic standards and
learn take it upon themselves to properly understand. Or even to understand how to
intelligently use quotes so their paper is truly original. Making a derivative work without
attribution is not ethical. Stealing information from sources without giving proper citation
is not ethical. Obtaining content that would otherwise be sold for a specified value is not
ethical. These are the types of legal violations the aforementioned institutions are fighting
against. However, these problems are being fought in the wrong way. Unlawful
infringement of intellectual property can easily occur when using the internet even as a
pedagogical toolperhaps too easily. In the following chapters, this thesis will argue for
the epistemic and ethical responsibilities required of students and educators to properly
utilize emerging technologies for learning.
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CONTENT AND THE CREATOR
Definitions
The Merriam-Webster dictionary defines contentas something that is to be
expressed through some medium, as speech, writing, or any of various arts (Merriam-
Webster 2010). Also from the dictionary, substantive information or creative material
viewed in contrast to its actual or potential manner of presentation (Merriam-Webster
2010). For the purpose of this thesis, content is primarily creative material.
In order for content to exist there must be a creator. What rights does this creator
have? What are the rights of the receiver of the creator's content? When people exercise
their intrinsic ability for free creation, a natural desire can exist to protect and possibly
control what they have created. The point is for the individual to claim ownership over
their ideas. Intellectual property legislation sets precedence for protection.
The constitutional provision respecting intellectual property, and by extension,
copyright, is Article 1, section 8, of the United States Constitution. It states "Congress
shall have Power ... To promote the Progress of Science and useful Arts, by securing for
limited Times to Authors and Inventors the exclusive Right to their respective Writings
and Discoveries" (US Const., Art. 1, sec. 8, cl. 8.).
From this provision, the umbrella concept commonly known as intellectual
property has developed. Covered under the concept of intellectual property are terms
such as copyright, trademark, and patent. These four terms and very important and need
to be defined, as they precisely (or not so precisely, depending on your perspective)
govern much of what is considered artistic content today. The differences between these
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three terms are often conflated and misconstrued. To prevent this unnecessary confusion,
I will attempt to define these terms succinctly.
What is Intellectual Property?
Intellectual property is defined in the Merriam-Webster dictionary as Property
(as an idea, invention, or process) that derives from the work of the mind or
intellect; also: an application, right, or registration relating to this (Merriam-Webster
2010). Richard Raysman et al., clarifies this definition slightly. He states intellectual
property is Intangible, difficult ofvaluation and quantification (Raysman et al 1-1).
Wikipedia contributors, and by extension Raysman et al., elaborate:
Intellectual property (IP) is a term referring to a number of distinct types of
creations of the mind for which property rights are recognizedand the
corresponding fields of law. Under intellectual property law, owners are granted
certain exclusive rights to a variety of intangible assets, such as musical, literary,
and artistic works; discoveries and inventions; and words, phrases, symbols, and
designs. Common types of intellectual property include copyrights,
trademarks, patents, industrial design rights and trade secrets in some jurisdictions
(Wikipedia.org 2010).
To the careful reader, intellectual property may leave a lot of loose ends. For
example, what if two people have the same idea at the same time in different parts of the
world? Who does it belong to then? Also, how can something of an ethereal nature be
registered as a material item? Thoughts within the human mind are not owned, but the
production that stems from the thoughts can be. What is the essential difference? A
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mental idea cannot be held by human hands. In principle, documents legitimizing
intellectual property face the same questionable nature as how a physical bodily sensation
can be expressed in consciousness.Thoughts, feelings, and expressions of mind are not
items that can be owned. This alludes to the Orwellian notion of thought control. A
thought that exists in a person's mind can rightfully exist in another person's mind, based
on the nature of how people think. This is clearly demonstrated with the calculus
controversy between Leibniz and Newton circa 1699 to 1711 (Guicciardini 1999).
All the same, it is generally agreed that the connection between mind and body
produces action. Richard Stallman believes although the term intellectual property is in
wide use, it should be rejected altogether. He argues
The term intellectual property is at best a catch-all to lump together disparate
laws. Nonlawyers who hear one term applied to these various laws tend to assume
they are based on a common principle and function similarly. Nothing could be
further from the case. These laws originated separately, evolved differently, cover
different activities, have different rules, and raise different public policy issues
(Stallman 2010).
These disparate laws being clumped together exist primarily in the domain of copyright,
patent, and trademark, all which are covered by the umbrella term of intellectual property.
Copyright, Patents, and Trademarks
The Merriam-Webster dictionary defines copyright as, The exclusive legal right
to reproduce, publish, sell, or distribute the matter and form of something (as a literary,
musical, or artistic work) (Merriam-Webster 2010). Title 17 section 102 of the United
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States code states Copyright protection subsists, in accordance with this title, in original
works of authorship fixed in any tangible medium of expression, now known or later
developed, from which they can be perceived, reproduced, or otherwise communicated,
either directly or with the aid of a machine or device. Wikipedia contributors elaborate
on copyright as
A set of exclusive rights granted to the author or creator of an original work,
including the right to copy, distribute and adapt the work. Copyright does not
protect ideas, only their expression or fixation. ... Copyright owners have the
exclusive statutory right to exercise control over copying and other exploitation of
the works for a specific period of time, after which the work is said to enter
the public domain. Uses which are covered under limitations and exceptions to
copyright, such as fair use, do not require permission from the copyright owner.
All other uses require permission and copyright owners can license or
permanently transfer or assign their exclusive rights to others (Wikipedia.org
2010).
17 U.S.C. 102 states that the type of works allowed to be covered by copyright are
(1) literary works;
(2) Musical works, including any accompanying words;
(3) Dramatic works, including any accompanying music;
(4) Pantomimes and choreographic works;
(5) Pictorial, graphic, and sculptural works;
(6) Motion pictures and other audiovisual works;
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(7) Sound recordings; and
(8)Architectural works.
The first enactment of what is now known as copyright protection was the British
Statue of Anne, established in 1709. The Statute of Anne is arguably the origin of
copyright law, being that it was the first to directly protect the rights of authors. To
elaborate, Lawrence Lessig writes in Free Culture, The Statute of Anne granted to
author or 'proprietor' of a book an exclusive right to print that book (87). This Statute
sounds incredibly to copyright according to the aforementioned definition. Lessig
continues, In an important limitation, however the law gave the bookseller that right
for a limited term (87). Today, current legal precedent in American intellectual property
law has severely extended length of protection for intellectual property, with a baseline
term that surpasses even the author's life.
Practical, modern examples of copyright include licensing songs, films, websites,
and innovative design. From a pragmatic standpoint, the ability of an author to copyright
their work allows them to protect others from claiming credit for the point of origin. This
has widespread economic, social, and privatized benefits for the creator.
Copyright is different from patent by not specifically referring to inventions or
discovery. Rather, the careful reader will find that copyright is limited to the strict
protection of the expression or fixation or ideas, rather than the idea itself. This
distinction is where patents become important.
The Merriam-Webster dictionary has four relevant definitions for the wordpatent.
They are:
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1. (1): Secured by letters patent or by a patent to the exclusive control andpossession of a particular individual or party (2): Protected by a patent: made
under a patent.
2. Making exclusive or proprietary claims or pretension.3. Protected by a trademark or a brand name so as to establish proprietary rights
analogous to those conveyed by letters patent or a patent.
4. Of, relating to, or concerned with the granting of patents especially forinventions (Merriam-Webster 2010).
According to the World Intellectual Property Organization (WIPO), A patent is an
exclusive right granted for an invention, which is a product or a process that provides, in
general, a new way of doing something, or offers a new technical solution to a problem.
(WIPO.int 2010). Title 35, section 101 of the United States Code defines patents as Any
new and useful process, machine, manufacture, or composition of matter, or any new or
useful improvement thereof.
Thus, patentgenerally refers to rights granted to the individual or a group of
individuals who discovers or invents a new and useful process. There are three categories
for these patents: design, utility, and plant. According to the United States Patent and
Trademark Office (USPTO), utility patents are the most common, as they are granted to
anyone who discovers any new and useful process, machine, article of manufacture, or
composition of matter, or any new and useful improvement thereof (USPTO.gov 2010).
Following in commonality behind utility patents are design and plant patents.
Design patents are defined as that which May be granted to anyone who invents a new,
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trademarking types. The first is '', which designates an unregistered trademark and is
used to promote or distinguish goods. The second is'SM'',
or an unregistered service mark,
which serves the same function as the unregistered trademark. The difference between the
service mark and the trademark is the service mark designates a particular service rather
than a product.The third type is '', or the registered trademark. This one has special
properties. While there are many benefits, there are three that are of most importance.
According to the USPTO, the registered trademark
provides several advantages, e.g., legal presumption of the registrant's
ownership of the mark and the registrant's exclusive right to use the mark
nationwide; ability to bring an action concerning the mark in federal court;
and the ability to file the U.S. registration with the U.S. Customs Service to
prevent importation of infringing foreign goods (USPTO 2010).
Furthermore, for a registered trademark to be official, a licensing fee depending on type
is required by the USPTO of up to $400 (USPTO.gov 2010).
Trademarks are generally most valued by those intending to sell products such as
a patented strain of plant. The process may work like this: The salesman has an
agreement with the botanist; the botanist has a patented strain of a newly discovered
plant; the botanist agrees to work with the salesman to sell the patented plant under a
trademark licensed to the salesman. In essence, trademarks have a purely economical
purpose, which is relatively similar to the purpose of a patent. Copyrights on the other
hand, do not have an economical purpose, except in a court of law, but that will be
discussed later.
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All of the above forms of intellectual property protection allow for proprietism to
exist in anything considered to be intellectual content.
Code of Content
Source code in software is called code for a reason. First, it is the source of the
program, much like the United States Code is a source of law within the United States.
Software code consists of lines of programming allowing a piece of software to run
properly. This is called code because computer programming languages are not often
similar to natural human language. A level of representation is required because human
beings do not think in purely mathematical terms like a computer's central processing unit
does. The United States Code, while not purely mathematical and arguably written in
plain English, functions according to the same principle. It is an understandable
document that sets precedence for many topics, including providence over how people
live their lives in the United States.
Aside from the word 'code' being used to describe both, the United States Code
and open source software code share the ability to be changed and ratified. This is in
contrast to proprietary software code. The United States Code is not owned by a
particular person or company like proprietary software is. Examples of proprietary
software are Microsoft Windows, Adobe Photoshop, and the collaborative online
educational tool currently used by the University of Central Florida - Blackboard.
There is another important aspect of the definition of code which must be
examined. In 1790, software code did not exist. The only code, in effect, was the written
word. In order to study Shakespeare, you read the book because the book was the code.
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Today, the same principle holds true for software code. However, unlike studying the
works of Shakespeare in 1790, you cannot look into the code that creates some of the
most brilliant pieces of software because they have become proprietized.
These pieces of proprietary software are tied to a strong notion of ownership
covered by intellectual property legislation, specifically regarding the three
aforementioned concepts of copyright, patents, and trademarks. Therefore, proprietary
software cannot be changed or modified unless given permission by the owner or
distributor of the property rights. The United States judicial system allows monetary fines
to be imposed on violators of intellectual property law. If a person is found guilty of
violating the granted protections, they can be punished with fines determined at the
discretion of the intellectual property owner.
Unlike software code that has been proprietized by intellectual property law, the
United States Code has the ability to be changed by the people of the United States. The
United States Code is maintained by an agency of Congress, as software code is
maintained by agency of the developer. Here is the crucial difference between proprietary
software code and the United States Code: all people of the United States have the
unalienable right to access the code. This right is not granted with software such as
Windows, Photoshop, and Blackboard. If there is something wrong with these pieces of
software, they cannot be changed by anyone except the owner unless given permission.
The same principle extends to all content protected by intellectual property law.
The United States Code is intellectual property. However, unlike intellectual
property such as film and music, the U.S. Code has the ability to be changed through
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many means, such as court rulings and the democratic act of voting. Propriety code does
not lawfully change unless the owner grants permission. The following sections will
demonstrate how this permission is often abused for unethical purposes.
The Abuse of Content Rights
To sum up the differences of intellectual property protection, the concepts are
essentially a matter of economic principles. As Bill Ivey explains,
Copyright is a government-protected righta monopoly of sortsthat allows
artists to produce copies of their creative work while preventing others from
making copies without theirpermission. It coexists with related rights like
those that enable Barry Bonds to earn revenue from the sale of baseball cards
featuring his photograph (personality), protect the secret formula for Coca-Cola
(patent), and make it illegal to sell knockoff duplicates of Coach handbags
(trademark) (12-13).
While some argue for the abolishment of copyright (instead, they advocate what has
become known as copyleft), there is nothing inherently wrong with our conceptualization
of intellectual property, copyright, patent, or trademark. There is something wrong when
the right to any of the above is abused. For example, if greed and money are the primary
motivation of intellectual property protection, destruction of free creation occurs.
The concept of fair use cannot be overlooked. 17 U.S.C 107 states The fair use
of a copyrighted work, including such use by reproduction in copies or phonorecords or
by any other means specified by that section, for purposes such as criticism, comment,
news reporting, teaching (including multiple copies for classroom use), scholarship, or
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research, is not an infringement of copyright. The determining factors of fair use of
content in accordance with the aforementioned clause are
1. The purpose and character of the use, including whether such use is of acommercial nature or is for nonprofit educational purposes;
2. The nature of the copyrighted work;3. The amount and substantiality of the portion used in relation to the copyrighted
work as a whole; and
4. The effect of the use upon the potential market for or value of the copyrightedwork (17 U.S.C. 107).
For the purpose of this thesis, 'teaching' is a very important word to be included in what
constitutes fair use. From this clause, it seems all educational purposes of copyrighted
material may fall within the boundaries of fair use. However, this is not always the case.
In John Tehranian's paper,Infringement Nation: Copyright Reform and the
Law/Norm Gap, he illustrates the unwitting infringement that has become quotidian for
the average American (7). If all eighty-three acts of infringement Tehranian defines are
prosecuted in court, the hypothetical law professor can face up to $12.45 million in
potential damages (Tehranian 10). This amount is according to 17 U.S.C. 504(c) which
states In a case where the copyright owner sustains the burden of proving, and the court
finds, that infringement was committed willfully, the court in its discretion may increase
the award of statutory damages to a sum of not more than $150,000 (17 USC 504(c)
2010). Tehranian further explains If copyright holders were inclined to enforce their
rights to the maximum extent allowed by law, barring last minute salvation from the
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notoriously ambiguous fair use defense, he would be liable for a mind-boggling $4.544
billionin potential damages each year (11). Not all of Tehranian's examples are related
to purely educational purposes.
However, a large portion of the examples are. First, the professor makes
unauthorized copies of emails duplicating someone else's copyrighted text without
permission every time an email is saved or sent (Tehranian 7). It is entirely possible these
emails were being sent to students and colleagues. Then, distributing brand new articles
from the internet presenting analyses of a Supreme Court decision to his students, the
professor has just engaged in the unauthorized reproduction of three literary works in
violation of the Copyright Act (Tehranian 8). Following this line of thinking, the
professor has assigned an e.e. cummings poem which, As a prelude to class discussion,
he reads the poem in its entirety, thereby engaging in an unauthorized public performance
of the copyrighted literary work (Tehranian 8). This isn't to say these penalties would
actually become precedent in a court of law. The point is they can be.4
Still, referring back to the definitions, content is not just creative material, but raw
and original creative material. Naturally, in many cases the creators of this raw and
original material would wish for their creation to be protected in some way. There are
many who feel copying and stealing is of no ethical consequence. This is where
intellectual property law comes into effect as a necessary and beneficial protection.
4. See Princeton Univ. Press v. Michigan Document Servs., Inc., 99 F.3d 1381 (6th Cir. 1996); Am.Geophysical Union v. Texaco, 37 F.3d 881 (2d Cir. 1994), superseded by 60 F.3d 913 (2d Cir. 1994); Duffyv. Penguin Books, 4 F. Supp. 2D 268 (S.D.N.Y. 1998); Television Digest, Inc. v. U.S. Tel. Assn, 841 F.Supp. 5 (D.D.C. 1993); Basic Books, Inc. v. Kinkos Graphics Corp., 758 F. Supp. 1522 (S.D.N.Y. 1991).
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Picasso is rumored to have said, Good artists copy, great artists steal (WikiQuote.org
2010). Since Picasso may or may not have made this statement, many have asked,
What's the difference between copying and stealing?
Copy has similar meaning to what constitutes plagiarism in today's classroom.
That is, students may literally copy and paste another's work and claim it as their own.
Unless it is a case of quotation or homage, there is absolutely nothing ethical about this
without credit where credit is due. Citations are one form of appropriate attribution. The
real principle of the matter is attributing the authorship of the work to the original creator.
Depending on the medium which the work is in, the method of giving credit where credit
is due can vary. Unethical copying would be plagiarism, wherein a student copies
another's work and does not attribute the informational source.
Stealing is different from copying without reference. The act of successfully
copying content ensures that the content indeed came from another source. However, if it
really was Picasso that said, Good artists copy, great artists steal, then I completely
agree. Akin to Abbie Hoffman's overarching goal Steal This Book, when an item is taken
and made into a completely different form, it may very well become your own and forget
about the people trying to stop you. Instead, focus on the creation, progress, and
beneficial effects for the future of your freedom and ability for creation. Modern
examples of this could be artists such as Girl Talk and Negativland. These are musical
artists who, like nearly all other artists, have taken an inspiration and remixed it into
something new. Referring to this very form of inspiration in relation to poetry, T.S. Eliot
writes,
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One of the surest tests [of the superiority or inferiority of a poet] is the way in
which a poet borrows. Immature poets imitate; mature poets steal; bad poets
deface what they take, and good poets make it into something better, or at least
something different. The good poet welds his theft into a whole of feeling which
is unique, utterly different than that from which it is torn; the bad poet throws it
into something which has no cohesion. A good poet will usually borrow from
authors remote in time, or alien in language, or diverse in interest (Eliot 2000).
To clarify, Eliot is not literally saying that stealing is ethical. He is arguing that all
creative work is derivative.
Gregg Gillis, also known as Girl Talk, uses clips of music already produced by
artists to create what is commonly known as a mash-up. Gillis does this by cutting clips
and verses from popular music by artists such as Elvis Costello, the Beatles, Jay Z,
Queen, and the Rolling Stones and turns them into new songs. In the film,R.I.P.: A Remix
Manifesto, Gillis explains his opinion this method by stating, So that sounds pretty much
nothing like that original song, and I would say that's roughly the equivalent of taking a
familiar Beatles melody on your guitar and rearranging the notes and putting a new guitar
pedal sound on it and calling it your own song (R.I.P.: A Remix Manifesto).
However, many argue Girl Talk's work to be illegal. Marybeth Peters is the current
Register of Copyrights and has been since August 7, 1994. In the 2008 film,R.I.P.: A
Remix Manifesto, Peters is interviewed regarding Girl Talk's music. Upon listening to
different mash-up samples, she states, So, none of it is his [Girl Talk]; he's just
rearranging other stuff (R.I.P.: A Remix Manifesto). This is exactly correct. However, a
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problematic underlying inference is arguing that what Girl Talk is doing has never
occurred before.
It's taking something that was and turning into something that it wasn't, Peters
says, There's a gazillion copyright questions . It would be a great exam question for a
copyright law class. So is the music Girl Talk creates actually illegal? Peters continues,
The answerwill always be, it depends, and in part it depends on whose it is and how
upset they are (R.I.P.: A Remix Manifesto).
InR.I.P.: A Remix Manifesto, there is an interview between American folklorist
and ethnomusicologist Alan Lomax and Muddy Waters. Lomax asks Is that tune the tune
from any other blues you know? To which Waters replied, Well, this song comes from
the cotton fields, and the boy that put the record out of it was Robert Johnson. Lomax
then queried, Did you know the tune before you heard it on the record?
Yes, sir. I knew the tune before I heard it on the record.
Who'd you learn it from?
I learned it from Son House (R.I.P.: A Remix Manifesto).
The song in question was You Need Love, by Muddy Waters. If you have heard
this song, try doing an A-B comparison between Muddy Waters' You Need Love, and
Led Zeppelin's Whole Lotta Love. If you don't have access toR.I.P., A Remix Manifesto
to listen to the demonstration, you can most likely find the tracks in your local library, or
on the Internet Archive. One might be astonished at the similarity.
Further examples of creativity building on the past are demonstrated inR.I.P.: A
Remix Manifesto by drawing connections between The Staple Singers, the Rolling
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Furthermore, do not forget that The Last Timeby the Rolling Stones was used
instrumentally by the Andrew Oldham Orchestra. This track may have originally been an
expression of inspiration (read: copyrighted) based on the track This May Be the Last
Time by The Staple Singers dating back to 1959 but that has never proven in court.
Following the lawsuit on behalf of Allen Klein and ABKCO Records, the
copyright of Bitter Sweet Symphonyreturned solely to Mick Jagger and Keith
Richards. Keep in mind, while Jagger and Richards theoretically have complete creative
ownership, only the similarities between the Andrew Oldham Orchestra's The Last
Time and Bitter Sweet Symphony were disputed. ABKCO Records, representing
Jagger and Richards, further milked the cash cow and rubbed in the damage by
negotiating the licensing rights of Bitter Sweet Symphony to Nike. In turn, Nike
subsequently ran a multi-million dollar television advertisement campaign for their brand
name shoes (R.I.P.: A Remix Manifesto).
The Verve subsequently broke up in 1999. Ironically, part of the lyrics to Bitter
Sweet Symphonyare as follows, It's a bittersweet symphony, this life / Trying to make
ends meet / You're a slave to money then you die. To add insult to injury, when Bitter
Sweet Symphony was nominated for a Grammy in 1999 in the Best Rock Song
category, Jagger and Richards were the nominees (TheFreeLibrary.com 1999). In the end,
The Verve completely lost control of Bitter Sweet Symphony, as well as songwriting
rights, and all royalties that may have been received from the song, each one of which
was exploited through the governing laws of intellectual property. Is their derivative
creativity unlawful? Intellectual property legislation certainly says so.
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