What Intellectual Property challenges do you expect your discipline will be confronting in the coming decade, and how do you predict such challenges will shape or inform the field in the future?
In reviewing the posts for our first survey, David Foster Wallace’s 2005 commencement speech at Kenyon College (LINK), “This is Water,” which was shared widely in recent years across social media, comes to mind. In his speech, Wallace argues that we travel through life often unaware of how the quotidian permeates our existence: that we travel, like fish, in the “waters” of life without appreciating its ubiquity and our place within it.
Similarly, many of our respondents explored a notion of Intellectual Property which permeates our daily practices to the point of near-invisibility - and in bringing these issues to light, we might become aware of the information environments which both control our own worldviews and mediate our identities as thinkers, learners, and media participants. From Stephanie Vie’s views of memetic creation and the role of IP in our creation of cultural content, to Marc Ouellette’s exploration of our existence within a corporatized Internet of Things, I am struck by our respondents’ vision of IP as subsumed within all elements of information and knowledge creation.
Our posts over the last three weeks have covered a wide range of disciplines, ideologies, and epistemologies; and yet, I am struck by the core cultural assumption of the “reality” of Intellectual Property—the reification of a legal concept within our everyday practices and the theoretical assumptions we must necessarily make as teachers and scholars of the humanities. Such an assumption may be necessary, but it also participates necessarily in a prevailing ideological paradigm driven by institutional interests and corporate cultures.
Of course, naturally, we must begin with an assumption of the legitimacy of IP in principle as educators; we have, after all, an obligation to our students and our communities to help them navigate the realities of authorship and ownership of texts—both those of their own creation and those with which they will engage as learners and scholars.
However, it may behoove us to contextualize our understanding of IP through the predominant ideologies of our time and the realities of our academic and cultural institutions. It would likely prove trivial to offer a Marxian reading of IP which calls of the seizing of the “memes of production,” but I’m unsure of how such a lens, or such an opposition, to currently prevalent, established systems would be productive.
There are certainly models in place, and our scholars have noted many, which offer alternatives to the current IP paradigm - be it Open Source and Creative Commons approaches, or awareness and rejection of corporate interests driving the work we do pedagogically and socially as activists and citizens. However, in championing such solutions, we must be aware of their affordances and limitations, as modeled by Dan Cox, Kim Gainer, and Chet Breaux in previous weeks. We must explain the role of such approaches to students in the humanities and beyond not only as alternatives to the current paradigm, but as responses to the prevailing ideologies of capital and ownership-centric practice.
I am encouraged by the prevalence of moral and ethical arguments and the shared belief that the next frontier of IP will be the exploration of philosophies and ethics of ownership, be they personal, public, or commercial.
As Dan Cox noted in his response in Week 1, of special concern in learning spaces is the degree to which we are forcing our students to participate in systems of ownership in which they lack the voice of power to negotiate their own own IP. Kim Gainer, similarly, sees pedagogical risks in coming years, noting that digital pedagogy might demand students to perform acts of learning and sharing which violate their agency as owners of their own intellectual products.
There are also concerns beyond the personal text that require careful consideration; Dan Richards does significant work in connecting the pedagogical and professional within the field of technical communication—and several of our contributors have noted the IP is centered in public spaces, in companies, and in public archives, making IP something of a battleground between the public and the private.
The truth is, IP strikes me as especially challenging to parse because it permeates all aspects of modern life. As Daniel Hocutt and Marc Ouellette demonstrate, we must view ourselves as agents of ownership not only of information, but of ourselves as information—always swimming in a sea of IP concerns and reminding ourselves and our students of this reality constantly:
“This is water.”
Recognizing the importance of communication technologies and media practices in education has led to an important curriculum initiative in the United States. The US National Education Association (2010) advocates the adoption of four core competencies: critical thinking, communication, collaboration and creativity as the essential skills students will need for the workplace and for full participation in the civic and cultural life of the 21st century. Jenkins et al (2006) argue that participatory culture will have long-term effects on students understanding of themselves as well as the world around them (Jenkins et al 2006: 9). This transformation is so crucial that the NEA claims, “only people who have the knowledge and skills to negotiate constant change and reinvent themselves for new situations will succeed” (NEA 2010: 6).
To assess these new 21st century skills, my colleagues and I at the University of New Brunswick at Saint John initiated a project in 2015 called “Inspiration through Creative Expression” (ICX). We encourage students to engage in traditional media production as well as DIY practices. ICX combines critical media literacy and democratized technological practice (Tanenbaum et al 2014). Democratized technological practices are similar to the skills associated with the Maker movement: playfulness, tool use, knowledge sharing and material culture (Tanenbaum et al. 2013: 2604). Embedding these practices in the humanities and social sciences (rather than traditional sites such as engineering or business faculties) encourages our students to consider a range of insights about media and culture in the process of creation (Henseler and Riffel 2014).
Two definitions challenge a project like the ICX initiative. The first is the concept of creativity as it is used in the maker movement. The second issue is the fact that participatory culture is “mediated” by the privatization of creative work through the process of transpropertization (Downes 2016).
Often creativity is redefined (or defined narrowly) in relation to the knowledge economy. It is equated with innovation and characterized simply as problem-solving. Further, the maker movement, understood as a “second-industrial revolution” sometimes overemphasizes the economic nature of maker activities. Makerspaces are sites of informal learning which is difficult to support in many educational settings, and makerspaces often become businesses in order to sustain themselves (Pinto 2015). Many makerspace projects become unsustainable over time. Community-based projects fade as interested parties move on to other things, fablabs close when their ability to attract clients weakens over time. Yet critical making, can focus on the “relationship between technologies and social life, with an emphasis on the emancipatory potential of the making process; of the transformation that occurs between the maker and the making” (Pinto 2015).
Transproperty affects our interactions with mass-mediated culture in the digital age in several ways. On the one hand, fans, audiences and creators use elements of popular culture as cultural material for their own projects. This is the lesson of participatory culture. On the other hand, the entertainment and information industries try to contain and capture this activity as user-generated content, which contributes to their efforts to shape and control interpretations of their own intellectual property.
Carolyn Guertin (2015) claims the privatization of creative works erects barriers to creation, not to copying, privileging “existing creators over the new. Powerful corporations over the individual, and the silencing of a generation of cultural citizens.” As copyright, trademark and celebrity rights are strengthened, lengthened and, increasingly, used in relation to the others, the objects of various intellectual property forms are abstracted from their original contexts and treated in an analogous way – as property - by the information and entertainment industries, the courts, legislators, and even the general public.
However, because IP offers partial and limited protection for information goods, and because the move to transproperty is a recent trend in the commodification of information, people still do their own cultural work with elements of the digital, cultural common, understood, in the end, as the raw material of our common cultural experience. Media texts, digital technology, and participatory culture form the basis of a global vernacular culture – a second culture that, potentially, we all share.
A sense of playfulness and inquiry, a knowledge of and appreciation of context, an acceptance that failure is an inevitable part of the process of creation. These characteristics can be learned, practiced and internalized through projects like the ICX initiative. Tempering these literacies and democratic technological practices is a trend towards redefinition that affects both creativity and our notions of property and culture.
Downes, Daniel. (2016). Transproperty: Intellectual Property and the Ideal Property form. Digital Studies Volume 6, Part 2. https://www.digitalstudies.org/ojs/index.php/digital_studies/article/view/297
Guertin, Carolyn. (2016). “’It’s Creativity Jm, but not as we know it’: Authorship in the Age of the Remix” Digital Studies Volume 6, Part 2 https://www.digitalstudies.org/ojs/index.php/digital_studies/article/view/262/402
Henseler, C. and J. Riffel. (2014). “The maker Movement and the Humanities: Giving Students a Larger Toolbox.” httP://humanities.org/2014/12/the-makers-movement…
Jenkins, H., K Clinton, R. Purashotma, A. Robinson and M. Weigel. (2006). Confronting the Challenges of Participatory Culture: Media Education for the 21st Century. Washington: MacArthur Foundation.
National Education Association (NEA). (2010). Preparing 21St Century students for a global society: An educator’s guide to the “four Cs” Retrieved from http://www.nea.org/assets/docs/A-Guide-to-Four-Cs.pdf
Pinto, L. (2015). “Putting the Critical (back) into Makerspaces.” https://www.policyalternatives.ca/publications/monitor/putting-critical-back-makerspaces.
Tanenbaum, J., A. Williams, A. Desjardins and K. Tanenbaum (2013). “Democratizing Technology: Pleasure, Utility and Expressiveness in DIY and Maker Practice.” CHI2013: Changing Perspectives. Paris: ACM.
Intellectual property discussions are ongoing in writing center work, though we may not always refer to these discussions using the term “intellectual property”. Ongoing concerns within the field about tutors appropriating student texts have led us to debate directive vs. nondirective tutoring styles and to cover the role of the tutor extensively in tutor training. However, one particular concern that has continued to grow in our particular Writing Center at Old Dominion University is the increasing number of group projects that students bring to the Writing Center. This is likely because of the Quality Enhancement Plan (QEP): Improving Disciplinary Writing adopted by the university in 2012. The QEP encourages faculty to include collaborative assignments and projects in their courses. I’m not arguing that the collaborative writing is negative, but rather that it presents the Writing Center with new challenges concerning intellectual property. Currently, there is not an established practices among all Writing Centers about how to ethically deal with group papers.
Our current policy at the ODU Writing Center is that we will work with students on collaborative projects, but only if all members of the group can attend the tutoring session. We will work with individual students on the group project, but only on his/her particular portion. The main reason for this policy arises from Stephen North’s seminal article The Idea of a Writing Center. He writes, “our job is to produce better writers, not better writing” (438). In other words, the writing center is interested in helping students become better writers, and if those students cannot participate in the tutoring session, it is not really possible for us to help them become better writers. The policy also rises out of a concern that students who are not part of the tutoring session may have significant portions of their contribution altered without their consent. Other writing centers have differing policies. For example, some writing centers allow one student to attend a tutoring session as a representative editor of the group, though they explain that this type of appointment differs from their typical individual appointments. While most writing centers suggest that all members of the group attend a tutoring session together if possible, policies diverge from there.
Perhaps the difficulty in determining a policy that addresses the ethics of the situation comes from the way in which group projects are implemented and carried out. Student schedules, contribution, and investment in the project all play a role in the final product. For now, I think our policy reflects our writing center’s mission and addresses student needs, though in time it may require us to revise our policy. However as the demand grows for tutoring services for collaborative writing projects, the field will likely need to begin to address this issue directly on the writing center listserv and in scholarship.
North, Stephen M. "The Idea of a Writing Center." College English vol. 46, no. 5, 1984, pp. 433-46, http://www.jstor.org/stable/377047. Accessed 13 Oct. 2016.
One Does Not Simply Make Memes and Not Consider Intellectual Property Issues: Social Media, Memetic Circulation, and Writing Studies
The authors who have come before me in this MediaCommons cluster on intellectual property have said so many astute things already. I agree that writing studies broadly will face considerable questions about pedagogy, censorship, preservation, and production in the coming years. I want to shift the conversation to considerations about the intersections of social media, memetics, and intellectual property, because I believe that this is an area that writing studies must continue to attend to as social media technologies become more and more ubiquitous in our everyday lives.
Worldwide, nearly two billion people use social media technologies, and the U.S. has a similarly strong presence—65% of adults use social networking sites according to Pew Internet Research data, an increase of nearly ten times the number in 2005. I imagine that many of you reading this MediaCommons entry have social media accounts on sites like Reddit, Instagram, WhatsApp, Facebook, Twitter, or one of the many other social media technologies available to us today. And I imagine, too, that many of you have seen and perhaps even circulated an Internet meme or two in those sites. From Good Guy Greg to Bad Luck Brian, Socially Awkward Penguin and Futurama Fry, thousands of memes are created and shared in social media—and even researched and catalogued on sites like Know Your Meme. Thanks to web tools like Meme Generator it is incredibly easy for individuals to compose their own memes within minutes.
The creation and circulation of memes is a hallmark of social media use and has been since the early days of All Your Base Are Belong to Us and You’re the Man Now Dog. Yet both popular and academic interest in memes—as an object of interest as well as an object of study—has increased since those early days. Dissertations and masters theses have been written about memes; writing studies scholars have written multiple articles about memes, including their effects on political rhetoric, identity construction, and social justice issues; undergraduate students have published research on memes in journals like Young Scholars in Writing; and rhetoricians have blown off steam on Tumblr with Rhet/Comp Ryan Gosling when writing all of that scholarship about memes became too much. As a result, for those of us who are interested in the convergence of digital rhetoric, social media, and intellectual property, the proliferation and circulation of memes is a fruitful area of study.
As a writing studies scholar who works in an editorial capacity with several different academic journals, I have faced questions about the appropriateness of including Internet memes in published scholarship several times now. Indeed, when working with the undergraduate journal Young Scholars in Writing, several members of the editorial staff had lively conversations about Fair Use, copyright, and memes when we were presented with Saint Xavier University student Maggie Collins’ essay draft on “advice animal” memes and sexism. Collins breaks down multiple advice animal memes such as Good Girl Gina and Overly Attached Girlfriend, assessing whether these memes reinforce stereotypical understandings of women through their juxtaposition of texts and images. But to be able to really showcase these memes to her audience, Collins needed to be able to actually show the images to her audience in her journal article—or at least, as her faculty mentor, that was my argument. After consulting a copyright specialist, the journal’s editor at the time agreed that these memes constituted Fair Use and Collins’ essay ran with the images intact (albeit in black and white). I include this as an example of just one of the ways that writing studies is grappling with intellectual property issues around memes. When analyzing memes, when writing about them, when instructing students to compose their own memes for classroom assignments, when using them to promote our programs and writing centers, do we as instructors/writers/composers know enough about intellectual property law and Fair Use rights to advocate for our (or our students’) rights to compose and recirculate memetic images? Are we approaching the composition of such texts with what Danielle Nicole Devoss and Jim Ridolfo have termed rhetorical velocity—“a conscious rhetorical concern for distance, travel, speed, and time, pertaining specifically to theorizing instances of strategic appropriation by a third party”?
And Good Girl Gina is a fantastic example to include because currently, the Know Your Meme database entry for this meme has no images because of a cease-and-desist order resulting in their removal. Other memes like Scumbag Stacey have met a similar fate. When instructing students to make memes for a class, or when creating memes for our own personal use, how might we think about where the base images come from, as there are many popular memes that rely on a real person’s image. For example, the recent TV appearance of Ken Bone, in his red sweater at the second presidential debate, has spurred multiple memes. For some, this newfound fame is exciting; for others, being associated with concepts like being a “scumbag,” a stalker, a racist, and so on is very unappealing.
I’ll end here with an image that I think is appropriate for this conversation. And what I would end with is a question: In the image below, we’re presented with a binary situation, and one that does not account for what Lawrence Lessig has called a “remix culture.”
Does it have to be this way? In the wake of rampant image creation and circulation in social media, can we continue working toward a society where we encourage remix and appropriation in creative ways? And if we do—and I hope we do—what will we gain? As people who study composition, writ broadly, we should be thinking about the impact of social media and meme culture on composing practices, and embracing the exciting questions about intellectual property that such practices bring up.
Online sites and services may deprive students of privacy and ownership-agency over their creations.
What happens in the classroom, stays in the classroom—or it did in a previous century. Student work could of course be sent home to parents, and adorable artwork and exemplary essays might be posted on classroom and hallway walls, both routinely and for events such as parent-teacher nights, when they might be seen by classmates’ family members. Beyond such sharing, student work was not routinely ‘published’.
Today, the case is very different. Instructors may require students to make use of sites and services that remove student work from the confines of brick-and-mortar classrooms and place it on offsite servers or in cloud storage. In order to fulfill course requirements, students may be directed to submit work to social media such as Facebook or YouTube, to online tutoring and plagiarism detection services, to course or learning management systems, and to online course packages. As a result, not only student data but student work is liable to be published in some sense. This de facto publication of student work may challenge privacy and student ownership-agency, with pedagogical implications.
Students’ privacy may be breached in any number of ways. The third-party service or site may inadvertently allow student work to become visible through a software or setting error, or the site may be breached by a hacker. The student herself may inadvertently publish her work through misunderstanding the original terms of service or changes in terms of service. As a result, whether through failure to change a default setting or through clicking on the wrong box, work that the student never intended to share may become visible to classmates—or even strangers. A student’s work may also be broadcast by a classmate who shares it with a friend, with or without realizing that it may then be seen by a friend of friend, and so forth.
Another way student work is shared, however, is with the full knowledge of the student but with ‘consent’ that may be meaningless because it is in effect coerced. A student who is required to upload her work to online tutoring services loses both privacy and ownership-agency. Strangers will access something she created for an audience that consisted of an instructor and/or peers—for a long time the immediate audience for student work even when assignment directions specified a hypothetical audience beyond the classroom.
We want our students to take on challenges and to explore difficult and sometimes sensitive topics. As an instructor of composition, I have often been trusted with thoughts that my students have never felt comfortable sharing anywhere else. But requiring students to publish their creations alters or even destroys that intellectual space in which we were asking our students to take risks.
Student creations are their intellectual property even if they have neither the intention nor the prospect of ‘monetizing’ their work. (The fact that student creations do have monetary value of a sort is demonstrated by the fact that third parties, such as online tutoring and plagiarism detection services, profit when students are required to upload their work to them.) However, even though the discussion may not be framed in monetary terms, student ownership-agency should be respected if only for reasons of pedagogy.
The U.S. Department of Education has created the Privacy Technical Assistance Centerbecause of concern over the privacy of student records in a digital environment. That same concern for privacy should extend to student work and should include protecting the right to decide when and where to publish it. As educators, we need to help our students avoid inadvertent publication by choosing sites and services wisely, with an eye toward security and appropriateness of terms of service. We should also educate our students in how to protect their privacy when we require them to use online sites and services. In addition, we need to think carefully about when or whether it is appropriate to insist that students publish their intellectual property.
One of the most exciting areas of film and media studies emerging over the past decade has been videographic criticism, the use of sounds and moving images as the material for expressing critical analysis. I have been excited to have been a small part of this wave, as a member of the founding team launching the open peer-reviewed videographic journal [in]Transition (right here at MediaCommons), and co-directing a series of NEH-funded workshops on videographic criticism. There is no doubt that the fate of videographic criticism is tied up in issues of intellectual property, and that there are grave concerns for how we might be able to adjust to key issues in both policy and technology.
Videographic critics, like all American film and media scholars, critics, and students, have been allowed an exemption to the vast overreach of the DMCA's anti-circumvention measure, which forbids breaking encryption on copyrighted material, regardless of reason or use—through this exemption, we are legally allowed to rip video sources to use in presentations, embed clips in digital publications, or use as source material for videographic work, all of which are likely considered fair uses. DVDs are fairly straightforward for this practice, with readily available free tools like Handbrake offering accessible ways to assert our fair use rights; Blu-rays are much harder to rip, requiring proprietary software or complex configurations, but are still feasible if we want to access high definition quality. Such ripping has become increasingly more challenging as computers have moved away from being equipped with internal drives, requiring external hardware to engage with discs in any capacity.
Ripping practices are becoming even more difficult in the streaming age, as many titles are never released on disc at all. The tools for ripping online video range from easy plugins or websites to download YouTube videos, to poor quality screen capture software, to arcane top-secret techniques that pirate communities use to rip high-quality streams from Netflix and Amazon. The effect is that even though it is thoroughly legal for me to rip excerpts from a Netflix series to embed in a presentation or remix in a videographic essay, it is virtually impossible to access the technology to make such a rip in a high-quality format. Instead, it would be far easier for me to find an illegal torrent to download high-quality versions to excerpt or remix, creating the paradoxical situation that exercising my legal fair use rights requires me to violate copyright to access the source material, which then invalidates my fair use defense. Additionally, corporations like Netflix stipulate that ripping their content violates their terms of service, which is not a crime but could certainly prompt suspension of accounts or lawsuits, even for fair uses.
Such restrictions are a clear example of Lawrence Lessig's foundational claim that in the digital age, code can function as law, overriding legal rights such as fair use. Throughout its history, fair use has been a legitimate defense in charges of copyright infringement, but such cases rarely get that far in court. In instances like ripping streaming video, fair use is no defense at all, as the arcane arts needed to rip streams and associated violation of terms of service cannot be overcome by claiming fair use. Instead, what is really needed to allow film & media scholarship and videographic criticism to thrive in the post-disc world is a proactive rather than reactive approach to fair use: mandating that media companies make editable video files available to educators and critics, rather than forcing us to break laws and terms of service to obtain them. Until such (unlikely) policy shifts are made, our field will continue to reside in shadowy legal gray areas.
Lawrence Lessig, Code: And Other Laws of Cyberspace (New York, N.Y.: Basic Books, 2000).
Questions about intellectual property always come back to one word: access. Who controls access, how access is mediated, and what does access mean in a particular field? In game studies, discussions about access and intellectual property are often concerned with the availability of game development tools. Companies that make game development kits often give their software away for free in order for users to experiment, but require that users purchase a license should they decided to sell any game that is built. Modding games has always raised questions of ownership and labor as well. Many companies will release modding toolkits for the games so that players can experiment with changes to the game and alter it in myriad ways. Game studies scholarship has noted the problematic nature of this relationship, citing issues of unpaid labor by a game company under the guises of “freedom” and “play.” Modders are rarely paid for their work, do not own the intellectual rights to their work, and increase the value and longevity of the original property of the game developer.
In 2015, Valve, the owner of the Steam game distribution platform, attempted to introduce paid mods through their service in order to "allow mod makers the opportunity to work on their mods full-time if they wanted to, and to encourage developers to provide better support to their mod communities." The backlash from the community was immediate, and Valve quickly dumped the paid mods feature from its service. Prior to this announcement, modding was seen as a hobby by the community, but forcing users to pay for the mods introduced a sharp divide in players/modders dichotomy. A major concern was over the intellectual property of this practice. Stealing someone’s mod and putting your name on it has always been a concern for modders. There was fear that this practice could ramp up with the monetary gains to be had in the new mod commissary. And with no ownership of the mods (since the game developers retain all IP rights), the modders would have no recourse for legal action.
While they were unsuccessful during this iteration, paid mods will undoubtedly make their way into the online game marketplace. The question will be what rights will modders retain after their mod is sold? Is it the responsibility of the modder or the game developer to ensure that the game continues to work after installing the mod? Will the modder retain 100% of the profits or will some of them go towards the developer or online marketplace? Although the modder uses artifacts created by the game developer, there is an argument to be made that they arrange those artifacts in a unique way. Determining how modders will retain IP rights of modifications in a paid modding space will ensure that their labor is not erased or ignored by the shifting marketplace.
Often, the notion of intellectual property is viewed only through the legal lens of personal and/or corporate ownership over texts and media; however, for this response I would like to instead consider a more romantic notion of a public intellectual property - a shared obligation to consider the ways in which information can be protected and made accessible regardless of its content or ownership.
Every year at the end of September, the American Library Association sponsors Banned Books Week, a simultaneous celebration of intellectual freedom and a reminder of the dangers censorship poses in every corner of society. The ALA tracks the number of challenges and bans around the country—however, it can only track what is reported, which means that there is a possibility that the number of challenges or bans is even greater that reported, including those libraries and librarians that self-censor, refusing to even add controversial materials to their collections. In light of Banned Books Week, to what extent might we view the library as a site for housing a public intellectual property, one which often seeks to allow patrons access to, and to subvert, private intellectual properties?
In such a case, it may behoove us to consider what texts are deemed controversial within this semi-public space. In 2015, the most challenged books represented diverse backgrounds, including race, religion, and sexual orientation. The censorship of them deprives libraries and the communities they serve of information and stifles the conversations that help us progress and develop socially, both as individuals and as a community. On the heels of Banned Books Week 2016, it is important to consider the pervasiveness of censorship through access, and its unexpected (but hardly surprising) life in every corner of society.
Even consider a recent incident at a speaking event sponsored by the Jewish Community Foundation at the Kansas City Public Library, in which an attendee and library employee were arrested after the discussion became heated. After an attendee began making unpopular statements referencing 9/11 conspiracy theorists during a question and answer session, a private security guard hired for the event attempted to remove the attendee from the room. A library employee stepped in to deescalate the situation, eventually escorting the attendee to the door. The situation ended with the employee and attendee both being detained, arrested, and now prosecuted—all because of one individual’s personal expression of an unpopular opinion. The KCPL is standing behind the patron and employee, and petitioning (unsuccessfully, to this point) for charges to be dropped for both individuals..
Regardless of who was in the right or in the wrong, for this incident to take place in a library, where intellectual freedom is held sacred, is indicative of just how frightened our collective society can become of ideas that challenge predominant worldviews. Censorship is a reaction to the unknown, born out of fear and a desire to maintain control over ideas that make us uncomfortable. It stifles conversation, and it stifles the voices of reason who would intervene and perhaps advance the conversation rather than dominate it. In facing that censorship, we might view ourselves as taking stewardship of our intellectual properties; indeed, acknowledging this discomfort is how we grow and develop—the threat of violence or escalation leads those who would make their voices heard to second guess themselves, depriving the conversation of important voices. We live in what former Obama administration speechwriter Jon Lovett so memorably calls “the culture of shut up”—we silence what makes us uncomfortable, because it is easier to ignore it rather than reexamine our own beliefs or question our own personal truths. The ownership of our private intellectual spaces should not override our stewardship of our shared, public intellectual properties.
The question then becomes—in a time where political correctness has been taken to entirely new heights (or lows, depending on your ideological persuasions)—how we continue to question those truths and create a forum that values and welcomes intellectual freedom and dissenting viewpoints and values the freedom and the right to personal expression in practice, rather than just in theory. Part of that solution may require scholars to reconsider their notions of intellectual property and the commons, to encourage a more public ownership of both.
The Maker Movement has resulted in a large number of people creating things, but also sharing them. The avenues through which they share are open, which is the point of contemporary making. Unfortunately, this openness also means that designs and objects that are published under Creative Commons licenses are being targeted by profit-seeking firms. Patent theft is one of the most significant challenges facing new media scholars. We already live and work in a copyright landscape riddled with trolls. These actors work to devalue the work of individual content creators while maximizing their own profits, and I believe that trolls are only the first wave of a new, corrupt generation of actors bent on taking what isn’t theirs.
It is increasingly common practice for makers to upload digital plans for things they have created. One of the most popular online repositories for user-created designs is Thingiverse. This service allows users to upload designs and assign them a Creative Commons license. In 2016, several Thingiverse users discovered that their designs (uploaded under a variety of Creative Commons licenses) had been mass downloaded and subsequently offered for sale by an eBay seller called “just3dprint.” This eBay seller was offering printed versions of the custom designs for a charge (Grunewald par. 2). Several users contacted the firm and asked that their designs be taken town, but they received a message from the seller arguing that these practices are perfectly legal and beneficial to the artists (Grunewald par. 4-5). Though taking a user design and with a CC- Non-commercial and using it for commercial purposes is clearly wrong, this didn’t stop the eBay seller.
As we encourage more people to participate in the digital economy, we will also need to simultaneously educate participants on the kinds of problems they can reasonably expect to arise when presenting work to a variety of publics. Currently, there are no criminal penalties or required jail time for patent infringement, which creates an obvious incentive for patent trolls and large firms to take whatever looks profitable. What makes the example above even more complicated is that many of the designs that were taken from Thingiverse did not feature any kind of Creative Commons license. The actions of the eBay seller were ethically dubious, but perhaps not in all cases.
Academics working in intellectual property studies have long praised the Commons as a solution to many problems with IP law, but the Commons doesn’t do much to protect individual creators, unfortunately. It’s incredibly easy to lift a CAD design and bring it to a different platform, and, commonly, a multi-national platform with no clear jurisdiction. Researchers and content creators working with new media will need to remain vigilant and engaged in order to help shape the future of IP. If this example teaches us anything, it is that current intellectual property laws are being further eroded at fast rate. One important way of combatting patent theft involves establishing prior art, which entails publicly documenting creations. Writing about our intellectual property (and training students to do the same) can help us protect the things we make from appropriation.
Grunewald, Scott. “When eBay Sellers Try to Defend Their Illegal Sale of 3D Models from Thingiverse, Comedy Ensues.” 3DPrint.com, 20 Feb. 2016.
In light of October being American Archives Month, I wanted to take this opportunity to consider how intellectual property impacts the preservation of digital works. While it’s tempting to assume that the software publisher or electronic text author will take every measure to secure that work’s existence, the history of media demonstrates that this is not the case. Unlike early cinema, music, and other culturally-driven works that have been deemed worthy of preservation and restoration efforts, those works relying on computational technologies have thus far been overlooked. One of the forms that has gained some attention of late is that of computer games.
In recent years, the preservation of computer games has developed into an academic priority. Museums such as The Strong in Rochester, NY posses growing stores of material pertaining to video game culture. At this summer's Computers and Writing conference (conveniently held in Rochester), I shared a project that Dr. Avery Edenfield, archivist Brad Houston, and I had been working on during the past year. For this project, which continues to seek methods for documenting and preserving the individual experience of video game play, Dr. Edenfield and I discussed ways to examine the player communities that had been eliminated from most academic accounts of video game history.
Like any good project, it has spun off into numerous tangential questions, many of which are much larger than the concerns tackled by our initial inquiry:
1. While we act upon computer games through the platform, controllers, and peripherals, we participate in the game's culture through its paratexts: the tchotchkes at the bottom of our cereal box or the manuals adorned with Cliff Spohn's artwork. These artifacts hurl us headlong into the throes of nostalgia but speak to the consumption of the game ecology rather than the participation in the game’s community. Consider those walkthroughs and tutorials that enabled you to overcome that obstacle. What about the forums that were vital to sharing that Mario+Seamus fan-fic you worked tirelessly on? These cultural goldmines, where the significance of these works are reified, are never stable and always at the mercy of server ownership and industrial priorities.
This effort has also stoked industrial interests as well. While there is little profit except for cultural capital to be gained from these projects, it is this form of capital that is increasing in value. The incorporation of the gameplay-streaming service Twitch into Amazon Prime stokes this concern: if these services become the privileged method of capturing and sharing experience, what will become of those comparable services that offer the same information without concern for profit?
2. Our research focused on preserving the experience of the game was because of obstacles presented to game archivists by the publishers themselves. If our intention was to preserve experience, how could we capture those that are no longer available? Emulation is an often deployed remedy to this but, especially for those affiliated with public institutions, this presents multiple problems.
One of the questions that came up (I’m looking at you Dan Cox!) was why emulation is a less-optimal alternative than interacting with the original software on the platform intended for it. Although emulators are legally distributed products in the United States, the games played on these emulators are not. On their corporate page, Nintendo’s description of this concern is clear and carefully crafted:
“The introduction of emulators created to play illegally copied Nintendo software represents the greatest threat to date to the intellectual property rights of video game developers.”
This statement represents one of the greater concerns I have as someone who is developing a deep concern for the preservation not just of games but in software at large. Should the “threat” of emulation gain truck in the United States, we could lose one of the few means available to accessing some of the earliest works of the information age. In response to this threat, projects such as Pathfinders, an effort being conducted by the Electronic Literature Organization, are striving to capture the experience through video documentation. Another aspect of Pathfinders, however, is to develop "prototypes of new digital tools for preserving, analyzing, and making accessible digital resources," an endeavor that could be suspect to a perspective similar to Nintendo's.
Many of these works rely upon machines that are hard if not impossible to come by. Software-based platforms such as Flash are increasingly being disowned from supporting publishers, endangering thousands of provocative, experimental, and creative works. Emulation is crucial to the project of accessing these texts and taking steps to preserving them. If emulation is targeted by litigation, it will become more difficult for these archiving projects to continue – particularly by those publicly-funded universities in the U.S. that are taking them on.
Considering the latest interest in reviving nostalgia-laden titles such as Nintendo’s Tecmo Super Bowl and Atari’s E.T. The Extra Terrestrial (whose literal disinterment curtailed a long standing myth among enthusiasts), it’s clear where the corporate interest resides. There is no small measure of irony in Nintendo’s use of emulation technology to sell older titles as part of their Virtual Machine catalog. But we should also be mindful of those works that represent the first trepidatious yet bold forays into to an encroaching information age.
Given that the field of technical communication spans many workplace and academic contexts, utilizes countless writing technologies, and touches myriad sub-disciplines, the challenges the field faces in terms of issues of intellectual property (IP) will only intensify in the coming years. While philosophically, the ethical question of authorship—just what it means to be an author of a text in the first place (Barthes, 1967; Slack, Miller, & Doak, 1993)—pervades much of the work already, I want to identify what I see to be the three main challenges the field will continue to face in the future as it pertains to IP.
Even before the introduction of digital technologies in mediating pedagogical practice, the question of ownership of student-produced materials and teacher-based texts (e.g., syllabi, projects) was a key issue. Now, as students use archiving and presentational technologies such as Google Drive and WordPress to build workplace-based portfolios for future employers, questions of IP as it pertains to private entities such as Google helping facilitate public educational goals raises many questions about the risks involved with using eportfolios technologies in technical writing classrooms.
By digital production I mean here mainly editing software for digital images and the increasing use of the visual as a guiding light in rhetorical practice. As the field continues to be involved in multimodal production, and not just text-based documentation (this includes video and audio production as well), the appropriate literacies involved in citing images, navigating creative commons databases, and ethical digital manipulation must be learned and included in the basic expectations for proficient work.
Content and Software Management
Technical communicators and information designers deal with a lot of content. Like, a lot. As such, practitioners needs to always be aware of how to protect their own content as well as usefully and honestly borrow content from other sources. Whether this is lines of code or text, protecting content created either as in-house coding or web content will be vitally important in protecting business. See Bill Hart-Davidson’s (2001) work in Technical Communication on the parallels between technical communication and information technology.
While not exhaustive (think of how algorithms might be involved in creating IP issues we don’t know about yet), the issues circulating ownership and protection of ideas in these three areas will need to be critically addressed. But with technical and professional communication being a field that has shown ability to maintain self-awareness, integrate ethical theories into practice, and establish bridges between academia and industry, I am confident in its ability to do do.
What are the future concerns for digital writing studies research?
Increasingly, to defray the costs of maintaining software run by thousands if not tens of millions of people, companies are turning to software-as-a-service (SAAS) and platform-as-a-service (PAAS) models. Moving away from shipping physical materials for customers to load themselves, many software companies have shifted wholly to content-delivery networks (CDN) and services for delivery. Software is increasingly, if not absolutely and ubiquitously, existing as sub-licensed parts and chunks granted to users through subscription models and pay-per-month access guarded by larger, gatekeeper applications. While users rarely ever owned even their own operating system software in the past, nearly all layers now, from the hardware drivers up to the most amazing graphical interfaces, are delivered, loaded, and updated via internet connections from outside servers.
Even beyond the more obvious shifts into content and learning management systems (CMS, LMS) as a result of these larger industry moves, this has meant for students at many institutions that their educational experiences exist within multiple concurrent systems and software layers simultaneously. Students may have personal archives on one cloud service while submitting their work for grading on another. At any one time, a student may be logged into competing brands of cloud services and systems, using whatever their institution may mandate and trying to move work into and out of one system or another. If there ever was a time of simply using a word processing suite on one operating system to compose, it is long gone as cloud computing and the educational move toward greater technical accessibility has swallowed the world.
On the one hand, then, all of these changes have allowed for an unprecedented level of admission for those who would not have otherwise been be able to afford education. Access via subscription-model funded services has lead the way for students at all levels to create, update, and submit in ways like never before. Instead of needing special software on their own systems, they can log into or pull up an interface to remote and often web-hosted composing software. Through version control and near-instant backups, works are no longer static, saved content existing as single files, but a history of changes, revisions, and thoughts refined over time and sometimes across physical space as students move between locations and write across different devices.
On the other hand, and specific for the larger fields of composition and writing studies, such digital artifacts of spiraling outward connections of updates and changes represent a deep, rich vein of study for how users create, edit, and ultimately publish their content on different platforms. However, these are also locked behind personalized gatekeepers and interfaces. They are bound up in learning management systems and sometimes even purged to save institutional resources soon after submission. Even as access has become easier for an individual user, the ability to study these artifacts continues to be compounded by two larger interconnected themes: researcher access and ethical concerns around intellectual property rights.
As a result of content moving away from centralized locations, the underlying questions for writing studies in digital spaces becomes not “How?” but much closer to the realm of “Should we?” and “At what risk to participants?” Under cloud and CMS/LMS access, researchers would need to be granted access by the participants or those in control of the final versions of the artifacts. Instead of being given physical or single file artifacts, often the medium of the cloud system is even a part of the presentation as the artifact is integral to the very platform from which it was created upon by the user.
Added to these concerns are also those surrounding the fluidity of subscription-model software rights. If a user creates content on a service but is then locked out of the platform, is it still theirs? Should they be allowed to retrieve it? At what cost? Are students owed access to their work? Is it a right of a student, even when the work is changed as a result of submission for grading, for example, to be granted this new version? When dealing with layers of software services, which part is a participant’s property? Is any?
There are no easy answers to these questions. The digital rights concerns around a student’s intellectual property shifts in the same way it does for other users. Safe and ethical access for researchers continues to be an important and powerful consideration for all research endeavors. Navigating the necessary tightrope walk around protecting participants and studying them without overdue risk is a vital discussion for all researchers. The intellectual property challenges coming for digital writing research are many. None, however, are insurmountable.
“Being watched by Google”: Copyright, Intellectual Property and the Individual
The current question reminds me of a few recent anecdotes. I just showed my undergraduate class the well-known clip of Sir Ken Robinson’s TED Talk on changing paradigms in education. In it, he explains that schooling as we know it is a rather rigid structure that impedes “divergent thinking,” which is a measure of creativity, problem solving and skills not measured by standardized tests of “knowledge.” Among the mixed messages Robinson notes is the prohibition on copying. In education, we call that cheating; outside education, they call it collaboration. Then I gave them an article about the “moral panic” of plagiarism in the age of social media. Later that evening, my graduate class started to consider issues of authorship and aesthetics. Though they never got around to genre (they hate genre as a group, it turns out) and archetypes, they circled the issue enough that I reminded them that on pp. 90-100 of the Anatomy of Criticism, Northrop Frye (discusses the construction of copyright and the myth of individual authorship. As much as I love to show my classes the classic Axis of Awesome compilation, “4 Chord Song,” this isn’t another rant, diatribe or would be exposé proclaiming “Everything is a Remix.” That is being clever about being clever. It’s not so much the fact that everything is a copy that concerns me. Indeed, it isn’t even the ease with which copying occurs that concerns me. Rather, it is the fact the I don’t actually have a copyright on myself that concerns me.
Admittedly, this is more of a conceptual concern. As well, it shouldn’t come as a surprise given the fact that since Horkheimer and Adorno’s “The Culture Industry” thesis has become standard fare on undergraduate syllabi that I’ve had to have the annual joy of informing nineteen and twenty-year-old undergrads that they aren’t really autonomous individuals and that individuality is a myth anyway. If anything, this week’s announcement of “The secret smartphone war over the struggle for control of the user” is actually more insidious than anything Horkheimer and Adorno foresaw in the culture industry era. For we now have “survey eggs.” The Airmiles reward program used this technology in Shoppers Drugmart (at least in a trial in Toronto last year) to let shoppers know when they are close to a shelf with a special on—either for a reduced price or for a bonus airmile. This is a reminder that rewards programs are actually tracking programs. The Estimote people advertise their related “nearables” as a way of "maintaining contact," which is a frightening euphemism for surveillance. That’s another way of saying tracking. Verizon sends me emails almost daily letting me know things I should be watching based on things I have been watching—or that my kids have been watching. In this regard, I was able to figure out which videos my kids were watching on YouTube all of last year (while I was commuting between Toronto and Norfolk) because of the tracking that Google maintains. My phone, if I let it, is a tracking device. A smartwatch or any kind of wearable would be nothing but a 24/7 tracking device.
What concerns me and has me wondering is what happens to the collected data after I have provided it. For example, one of the untold ramifications of the new Coca Cola Freestyle machines and the new system at McDonald’s isn’t just the fact that I am now a paying employee of these firms, it’s the fact that my habits, tastes, style and when I choose to exercise them now belong to someone else. This does actually remind of the cases of John Fogerty (formerly of Credence Clearwater Revival) and of Mark Volman, a.k.a. Professor Flo. In the former case, the singer was sued for sounding too much like himself. In the latter case, the musician turned academic was told, along with his colleague Howard Kaylan, that they do not own the use of their names. The two cases stem from contracts that were signed by the performers with their respective record companies. When I purchase a soft drink or use my phone to look up a price in a store, the EULA doesn’t have the same weight, yet it has far greater purchase. Moreover, consent is given in a variety of ways unforeseen by even Horkheimer and Adorno's most bleak indictment of "mass deception." As CNN and others reported, data brokers have gone so far as to sell data about rape victims in order to profit from the obscene amount of data that is being collected. Moreover, as a related article indicates, the data may also be wrong. Said another way, data brokers own a version of our identities; that is, a carefully constructed, calculated, copy of each of us. The only thing that has copyright protection is the data set.
Here, it is well worth mentioning Google’s rabid protection of its algorithm, ranking system and search string results. This is important because until now the concern has largely been confined to issues of privacy. However, privacy is a relatively recent invention itself. It is an outgrowth of urbanization and the industrial revolution. Moreover, the emphasis on privacy ignores one important consideration of the individual. The French case cited earlier relates to the right to be forgotten; that is, to have oneself removed from search strings. Even though it has been considered a privacy issue, it is quite properly an issue of copies and copies of copies being made of individual identities in and through the violations of privacy. What is the self besides a collection of intellectual property? It is also worth recalling that the United States Supreme Court seems to enjoy giving corporations the same rights as individuals. Indeed, after the Panama Papers and the John Doe papers, some might argue that the court has afforded more rights to corporations than to individuals, following from the ever-expanding interpretations of the 14th Amendment. It is with tongue placed firmly in cheek that I mention that while this amendment and seemingly every iteration of copyright acts is open to interpretation and reinterpretation given the fact that the founding fathers could not have foreseen the advance of technology, it is not only astonishing that the 2nd Amendment somehow remains sacrosanct, it is equally astonishing that individuals have little or no protection when they and their habits—that is, the very essence of the self, if we understand culture as a way of life and the self as an amalgam of artifacts—are copied incessantly.
Leaving this under the guise of privacy protection obfuscates the for-profit motives of making limitless of copies of each of us. This actually speaks to one of the developments of the culture industry that Horkheimer and Adorno probably should have foreseen but didn’t: the mass production of people. Hollywood and the music industry have managed to mass produce character types. Ultimately, that’s what each of us becomes in this system: a set of data points to be copied and replicated shamelessly (and) ad nauseum, like boy bands, girl groups, teen pop stars, sitcoms, chick-flicks, buddy movies, the classic movies that Adam Sandler, Ben Stiller and Johnny Depp insist on ruining, and these people. I wish I had the gumption of one of my former students. After learning about the “Culture Industry” thesis, he declared himself immune. “I”m not a businessman,” he said in a pictorial in the student newspaper, “I’m a business, man!” Ultimately, we don’t just need to incorporate, we may well need to copyright ourselves, each and every one of us. As much as Kasabian says that we are being watch by Google, in the song from which I pinched a portion of my title, we are also being copied by them.
One of the primary challenges the fields of professional and technical communication (PTC) and composition and rhetoric will face in the coming decade is identifying the rhetorical agent or agents that can be considered the “owner” or “originator” of intellectual labor. Who or what can be described as the creator of an art installation, an orchestration, a mapping mashup, or a research paper? Whose property are we talking about, and what right to ownership does the authorial agent(s) have to that intellectual work? Can property, physical or intellectual, be owned by any single rhetorical agent, and whose “intellect” is represented?
As the field of PTC explores rhetorical agency in the next decade, I believe the results of exploration will challenge the basic notion of IP as individual or collective ownership of intellectual work. The activity of tracing rhetorical agency through systems of labor and production is ongoing across the humanities. Thomas Rickert’s Ambient Rhetoric explores agency in embodied and disembodied influences, especially sonic influences, on rhetorical creation and expression. Sean Conrey, in a recent film titled Listening for Phoné presented in Enculturation, explores sonic agency in environmental ecologies. Levi Bryant’s Onto-Cartography, following in the footsteps of Jane Bennett’s Vibrant Matter, examines the emergent agency of things in their relations with human and nonhuman actors alike.
In professional and technical communication, the question is being explored in disaster rhetorics (Zoetewey & Staggers, 2004; Herndl, Fenner & Miller, 1991), through documentation of dangerous work environments (Sauer, 2003), through the mapping of disciplinary boundaries (Sullivan & Porter, 1991), and in fan-produced documentation for and against video games (Beale, McKittrick & Richards, 2016) among other sites. Questions raised about intellectual property include:
- Where do we find blame, a type of intellectual ownership, in rhetoric surrounding a massive disaster like an airliner crash or an oil rig explosion?
- Where should we situate technical knowledge of dangerous workplaces, another type of intellectual ownership, in written and experiential documentation?
- What are the intellectual roles and responsibilities of disciplinary scholars in increasingly interdisciplinary research?
- Where (or to whom) does the responsibility for producing technical documentation of video games “belong”?
In my research in technical communication, I’m tracing rhetorical agency through emergent systems of algorithmic activity and meaning. When we and our students conduct research by searching Google Scholar or our academic library’s catalog, we are only partially controlling the search process. Algorithms and the individuals, teams, corporations, and ideologies that produce them collaborate in the rhetorical activity that gets represented in our search results. The scholarship we conduct is reliant in part on what we trust (or hope) are ethical algorithmic activities that provide us the most relevant results for our searches.
When we choose to include and cite one or more of these search results in our scholarship, to what extent can we say “we” conducted the research? The research process is, at least in part, an emergent algorithmic activity that collaborates in the production of knowledge. Human and nonhuman, physical and metaphysical, the agents involved in the production of knowledge are varied and challenging to trace to their origins. So, then, is the IP of the research process difficult to trace. Whose intellect shall we say produced and owns the knowledge created by research and application? It is surely the researchers in collaboration with the technical systems that enable its collection, organization, production, and distribution.
Cheryl Geisler’s essay report from the 2009 meeting of the Alliance of Rhetoric Societies neatly frames this question in its title: “How Ought We to Understand the Concept of Rhetorical Agency?” I suggest this could easily be revised to ask, “How ought we to understand ownership of intellectual property?” If intellectual property refers to the creation and ownership of works of the mind, then the concept of rhetorical agency contains within it the concept of intellectual property. And what will be the result of the field’s exploration of IP as agency? It will rely on distribution of IP among human and non-human entities, it will render our current legal protections for IP obsolete, and it will require new ways of understanding collaborative, emergent agency and ownership.
Beale, M., McKittrick, M., & Richards, D. (2016). “Good” grief: Subversion, praxis,and the unmasked ethics of griefing guides. Technical Communication Quarterly, 25(3), 191-201.
Geisler, C. (2009). How ought we to understand the concept of rhetorical agency? Report from the ARS. Rhetoric Society Quarterly, 34(3), 9-17.
Sauer, B. (2003). The rhetoric of risk: Technical documentation in hazardous environments. Mahway, NJ: Lawrence Erlbaum Associates.
Sullivan, P. A. & Porter, J. E.(1993). Remapping curricular geography: Professional writing in/and English. Journal of Business and Technical Communication 7(4): 389-422.
Zoetewey, M., and Staggers, J. (2004). Teaching the Air Midwest case: A stakeholder approach to deliberative technical rhetoric. IEEE Transactions on Professional Communication, 47(4), 233-243.