Monthly Archives: December 2014

[Not] Understanding copyright, fair use, and public domain

I am frequently surprised by how many people do not understand copyright, fair use, and public domain. This lack of understanding is not good; among other things, it means that those who do understand copyright (i.e., those who can afford to pay scads of lawyers to understand it for them) can drive legislation, policies, and court decisions favorable to their interests. By and large, regular consumers and independent/small producers are at a disadvantage.

In terms of copyright, the Web is a very curious place. It is at once awash in copyright violations and over-stringent in knocking down content pretty clearly protected by fair use. In the first instance, a lot of people just do not especially care — I take a nice photo or jot down a great joke or epigram; my friend posts it to social media; it gets copied and re-copied. I may not care because I never intended to monetize it or assert my intellectual property rights; I am just happy to see my work proliferate. Had I thought about it, I might have used a Creative Commons license or similar. In the second instance, big content creators, owners of lots and lots of valuable IP, see the Web and the Internet more generally as a battlefield. Their interests lie in licensing, in click-wrap, in DRM, and in eroding or obscuring fair use rights. Read Terms of Use and licensing agreements. Often they explicitly prohibit uses that would almost certainly be protected under law. Challenges to this kind of behavior could end up in a court, which inherently favors those who can spend time and money on lawyers — and without even risking emotional/health consequences.

Frankly, if my job did not involve licensing and IP, I might not know or care much about copyright…so I do sympathize with those in the dark. Still, how frequent is my surprise! In a recent Ars Technica article, What Would Twitter Do? Musician’s tweets of Sony e-mails lead to threats, which involves a musician in some hot water for tweeting images of stolen/leaked Sony property, the following jumped right out at me:

“To me, it’s public domain,” said Broeksmit. “I don’t see it as stolen property. I mean, maybe at one point it was. I don’t know what the line is. I figure, other people are doing it — I didn’t see the harm in it.”

One comment on the article replies, “People really need to learn what public domain is.”

Note that the person quoted in the article is a musician, whose livelihood probably depends heavily on the creation, monetization, and protection of intellectual property. When he says “public domain”, he probably truly means “fair use”; when he means “fair use”, he probably truly means “fair play” — that is, while legally shady, releasing these documents is morally square. We have to stick it to big corporations, right? Right? At least, that is what I read into a statement that is otherwise fairly nonsensical.

What bothers me particularly, over and above the very careless use of a concept (public domain) that is very important to me, is the statement “I don’t know what the line is.” With this wonderful, beautiful, fragile Web we have built, information on where the line is can be found within minutes. Fully understanding all this stuff is quite difficult, but getting the basics right before thoughtlessly firing off tweet after tweet is not. A web search for “define public domain”, “define fair use”, or “define copyright” is a great place to begin. Of course, anyone with the stomach to trawl through 1,288 pages of “copyright practices” — all in PDF format only, woohoo! — can just go here:
Compendium of U.S. Copyright Office Practices, Third Edition.

There is a lot that Sony and I would probably disagree about in any copyright/fair-use conversation, but I think we are on the same page here — stolen correspondence that has been dumped on the Web is about as far from public domain as it gets. When people do not understand this and abuse terminology in defense of arguably immoral and probably illegal behavior, limitations on copyright terms, protections for fair use, and expansion of the public domain potentially suffer.

Open Access is [not] killing publishing

After yesterday’s post highlighting Jörg Lohrer’s riff on an old anti-copyright infringement slogan, I was inspired to make my own version of the ‘X is killing Y and it’s illegal’ thing. The original is here. Lohrer’s and mine are below.


Open Access is killing publishing” incorporates the image “Open Access logo” (PLoSCC0) and is based on “OER is killing education” by Jörg Lohrer, which incorporates the image Open Education Resources Logo (Jonathas MelloCC BY 3.0) and is inspired by the Home Taping Is Killing Music campaign and the tradition of parody derivatives.


OER Is Killing Education And It’s Illegal

When searching Photo Pin for ‘OER’, I came across this image:

Jörg Lohrer: OER is killing education and it's illegal
Jörg Lohrer via Photopin CC BY 2.0

Naturally, I was curious. The Flickr page offers little to go on at first blush. Is this just for some light trolling? What sort of reaction is it meant to provoke, and from whom?

To satisfy my curiosity, I dug a bit deeper, and to pay it forward (or spoil the surpise, depending on how you look at it), I share below the fruits of my research.

Lohrer credits the OER Logo and the Home Taping Is Killing Music campaign. The former is ubiquitous in OER circles, of course, and the latter has apparently been widely parodied (and is twice referenced via Roy in The IT Crowd, which I certainly approve of).

So…parody…which, of course, is clear from the picture to begin with. Threats to OER tend to be a bit more subtle.

What follows is a lot of clicking and reading, which y’all are welcome to do. Google reverse image search was largely useless, but a search for [“OER is killing education”] is fruitful. This shows up on the Web only on 15 January 2013 on both Flickr and Twitter; here’s the tweet that starts it all:

Overall, I expect this image is intended to critique (often hollow) arguments against the Open movement, both from (some) individual producers jealous of their IP rights and from (some) publishers who view themselves as necessarily the best arbiters of quality.

Anyway, that’s enough digital ink spilled over a fairly obvious and fairly obscure picture. It sure is a fun one, though, so I wanted to surface it. I will leave off with a few proposals for further iterations:

  • Fair Use Is Killing Copyright…And It’s Illegal!
  • Open Access Is Killing Publishing…And It’s Illegal!
  • Limited Copyright Is Killing Innovation…And It’s Illegal!

Any takers?

OER or OERs? There can be only one…

OER vs. OERs
I trust that the assertion is uninspired enough to warrant no notice and thus no offense, but it wants saying:

The term OER does not take an ‘s’ in the plural.

That is to say that the answer to the age-old question “OER or OERs?” is definitively the first and never the second. Moreover, one can create OER but not an OER; one can have OER but not one or more OER.

How do we know this to be so? We do not. In my case, I have the estimable authority of my own opinion; I have a strong visceral reaction to hearing the term OERs spoken aloud and only a slightly more subdued reaction to seeing it in print.

Other arguments are available.

Often, it seems that OERs is used to describe actual learning objects, whereas OER will be used to describe the concept of OER. That is, OER can be a concrete or abstract noun, and OERs is the plural of the former sort. That could wash if such usage were very strictly consistent. That both versions are often used inconsistently in the same source suggests either that both are correct or either is correct; in such a case, however, good style dictates that we choose one.

The collaboratively-edited Wikipedia page for Open Educational Resources overwhelmingly prefers OER, although this could be a result of one editor simply including more material than another, thus magnifying preferences. Sample sentences include:

  • “OER includes learning content, software tools…”
  • “Since OER are intended to be available for a variety of educational purposes, most organizations using OER neither…”
  • “UNESCO also champions OERs as a means of promoting access…”
  • “WikiEducator was launched to provide a venue for planning education projects built on OER, creating and promoting open education resources (OERs)…” [Note inconsistent use within a single sentence in this and the following sentence.]
  • “OER Commons also provides educators tools to align OER to the Common Core State Standards; to evaluate the quality of OER to OER Rubrics developed by Achieve; and to contribute and share OERs with other teachers and learners worldwide.”

The (possibly) collaboratively-edited Creative Commons wiki page “What is OER?” includes just one use of OERs, in a quote directly from the Wikipedia article.

Wikipedia attributes the creation of the term to UNESCO in 2002. Perhaps we could consider UNESCO the authority, then. The 2012 Paris OER Declaration contains 23 uses of OER and no uses of OERs. Hurray! But wait…

A 2010 message by UNESCO’s own Assistant Director-General for Education uses OER and OERs nine times each, once using both in the same sentence.

There is no easy way out of this mess. The preponderance of evidence seems to favor the authority of OER without clearly suppressing OERs. But if, by fiat, each creator can prefer one term to the other and is consistent in using one term over the other, at least we may hope that one will win out by overwhelming the other.

You know my heart, and if I lose I will try to be gracious but will probably choose to be wrong. Some losing battles are worth fighting, after all.


Image created using Text ASCII Art Generator by patorjk.  More sweet software here.