ethical applications of free culture applied to art education: piloting chinavine as an interactive...

8/8/2019 Ethical Applications of Free Culture Applied to Art Education: Piloting ChinaVine as an Interactive Model

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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 '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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