I think that this is a very useful way to consider IP in the Writing Center - using a ground-up perspective of how we teach and tutor ethically, from source use all the way up to the ethics of authorship. While your overview of this challenge is grounded in the structure and reality of the Old Dominion University Writing Center and how the QEP has driven this issue to the forefront, I do believe that many institutions are currently witnessing the same. I believe that writing support services of all kinds will have to grapple with the complexities of authorship earlier and more broadly in coming years.
The approach of the ODU writing center strikes me as particularly fair and well-grounded. It provides a great model for how educators struggling with Intellectual Property can often find a solution by returning to their pedagogical ethos and the theory that drives it, as you and your center did with North. Practical perspectives and models such as this help the writing studies discipline build a body of practices - and literature - to move forward with these increasingly difficult IP and authorship questions.
Thanks for this terrific article, Jason! I'm especially glad to hear someone bluntly addressing the challenges of streaming media for fair use. This is a minor note, but my understanding is that violating terms of service actually *is* technically a criminal offense under the 1986 Computer Fraud and Abuse Act and has, on rare occasions, been prosecuted as such (e.g., US v. Drew). This is problematic, as you point out, because violating TOS means the source material is not technically "legally obtained," which is a prerequisite for any exercise of fair use. The EFF has been supporting legislative reform of the CFAA that would decriminalize TOS violations https://www.eff.org/issues/cfaa but as you point out, even if it were legal to do so, it's nearly impossible to rip a high quality stream anyway!
As a graduate student at ODU, we now have to pay a significant cost in order to ensure that our Thesis is our property. Otherwise, it is the property of Proquest. So I feel very frustrated in which the way that companies will allow us to use their service, at the cost of taking the intellectual property of the creator. I personally feel very alarmed that we are heading towards a path in which the creator within academia could lose their rights. But at the same time, without these types of agreements, many of the platforms and services we take for granted would not be a resource.
I think it's a balancing act and I think that our rights need to not be as convoluted as they are, but more clear and concise. I think that research institutions, like ODU, using PAAS and SAAS should have an information session as to what our rights are and what we lose in using the services. I also think it would help to ask students what would be the best option for their studies, rather than making the decision for them so as to avoid any ideas or works not being unknowingly being lost by the student.
Security is also another issue. The firm that is providing the service or platform needs to ensure that their security is state of the art. As we could see on Dropbox, people's accounts and personal information were compromised. When institutions use services, they should be forthcoming as to what information is being used, the security, as well as liability in order to seek damages if one's personal property or identity is taken.
The problem is the individual does not have the resources to levy legal action against those that infringe on their work. As the world continues towards globalization, nation-states suffer the erosion of their own borders. There is still no true international government, as the UN does not have authority to exercise independently without the approval of other countries. It is instead considered a forum in which people discuss their problems. And while they have laws in place, they do not have any sort of ability to levy charges against the country that is not part of the International Court of Justice. Even countries that are, they could easily leave and avoid going to court. (http://www.icj-cij.org/informationindex.php?p1=7&p2=2)
So if a country is not partaking in International law, how can one punish those that are part of said countries? It would require some sort of social organization in order to lobby countries to enter binding agreements with one another, which I think is easier said than done. What can be done if the creator's IP is violated within United Sates, however, is to lobby the Electronic Frontier Foundation EFF—if it's digital—and/or other non-profit organizations to assist individuals with the costs and paperwork to defend what is theirs legally.
I completely agree with you and personally fear if the Libraries continue to ban library books, that the knowledge goes underground. When items become illegal or banned, people will create a market—or some resource—to still retrieve the item. The government, or any institution rather, can have a difficult time in trying to regulate a black market. Prices are not heightened, but so is the discussion. Those who know about the knowledge and have access to it would talk about it outside of the eyes and ears of the public. Information is not free flowing and people are left without the benefits the knowledge can provide.
In having works being public benefits those who have access—even if it is something we do not necessarily agree with. The knowledge, with the voice of the public, has the ability to disarm any radical viewpoints peacefully. It is why libraries and academia are an important institution to foster as the safe space for all knowledge and works. Without having the institutions that not only give us the ability to learn and become enucleated, these institutions are facilitators in the public expressing our opinions and properly defending them and sift out the "bad" from the "good", with the individual trusted to make good judgments for themselves. All censoring does is suggest that the common individual cannot make rational decisions on their own behalf.
I agree that companies have exploited the free labor of those that create mods. While this allows the games to live longer and have new content available to the user, it does pose some Intellectual Property (IP) risks as you have explained. I was an individual that was part of the Playstation Portable (PSP) hacking and homebrew scene. While involved in that scene at its infancy, I saw how the community did some internal policing in regards to who made what and who gets the credit. Granted, not every community has the resources or the population to do their own policing and disciplining, so I can see a benefit in these creators using GNU General Public License. The GNU General Public License (GPL) allows an individual to freely distribute, research, and modify it so as long as they give the creator the credit of what they made. Obviously, a company that forces those that mod to buy a license are constrained. This also ignores the fact that people who mod without permission, do not use their full name and instead some alias, preventing them from receiving any credit outside their niche.
However, I feel that the issue comes into this is the red tape. Depending on how the mod is made and what code is used/method of creating it, I feel that it is difficult to get a GPL because it may infringe on the rights of the creator of the game being modded. So if the modders are to make any headway, laws and the licensing procedures need to be clearer.
Since I was name-checked, I certainly I have to respond. And my response, put into a few words, is this: emulation is both savior and curse of much of what you are discussing, Kris. As both a developer of Flash projects and as part of projects to archive game experience around them, I cannot stress enough how vital your work and that of groups like The Strong are. We must archive games, experiences, para-texts, and associated narratives before they are lost to us. As I personally stressed at a conference just this past weekend, many early game developers are dying off and I know, as part of discussions colleagues and I have had around trying to preserve the history of board games specifically, this is often a hard, grueling task of trying to figure out where influences started and who invented which part of what.
Added into the confluence of an already complex task of archiving is the exact issue you raise: emulation. The larger issues of digital preservation come into effect at this point as common concerns other media face around access and presentation play a role. How can people get to the object once it becomes part of the archive? And, fast on those heels, and sometimes just as important, should people get access? At the same time, does the way an object is preserved help in working toward these existing issues? Emulation, on the surface, then, would seem to serve many of these: it certainly allows for access and presentation of a game once archived. However, and you have covered this in detail across this essay and in other places, is an emulation game still the “game?” Is it the same experience?
On this, I am unsure. If I play Asteroids in a browser, is it the same as playing the game on the Atari 2600? If I play it on a MAME suite or machine, is that the same game? Part of these problems, I think, can connect into the conversations that happened as much of our collective literature became digital: is reading a copy of a copy of The Iliad the same as one of any number of copies, translations, and physical performances of it made over hundreds of years? On the one hand, I’d say, yes, they are not the same but, on the same point, it does not matter. You can still read it. Others can still experience it. But, to move back to video games, is this the same conversation? If a screen does not have the same latency, the same internal configuration, is it the same? Which part takes priority in the archive process: the hardware or the software? Or is it some combination of both?
In looking at these concerns and even the future of several of these coming problems, I’m also reminded of the number of “retro” games that have been re-packaged, upgraded, and “made HD” over the last few years. If there is a conversation to be had on how emulation influences the gaming process, the additional concerns of marketing factors have to become a part of it. If major companies are willing to put a game + integrated emulator as part of a “now in HD!” marketing push, we have to consider the product in the same archiving process.
You mention "the appropriate literacies involved in citing images, navigating creative commons databases, and ethical digital manipulation," to which I say ABSOLUTELY YES.
What makes this so interesting and tricky is the way all these different assumptions and literacies are jamming into each other: you've got people at large just finding images and audio files and videos and taking them for their own remixes…
…and then you've people saying, "Well that was illegal but if you use this other asset instead it's not illegal but this stuff here it's legal and fine but you have to give credit in this particular sort of way"…
…and then you've got people in the academy with their own varying methods for citing the stuff you found and used, whether or not it was legal or not (and whether or not your remix was actually anything anyone would ever want to experience, but that's a different issue I think but is it??)…
So yeah. It's a mess. I think our challenge is to see it as playful, productive mess, where everyone can teach everyone else, and where we can adjust legal structures to allow playful amateur creation of stuff to continue. This is why I love Lawrence Lessig's models on remix so much: he tries really hard both to honor content creators' rights AND the exciting remixes of amateurs. But to do that, we've got to honor everyone in the room and be friendly when we talk to each other.
Dr. Dan Richards, thanks for being smart and helping me think through this stuff.
Thanks, Daniel, for the very cogent response. The parts of the Google EULA you highlighted are precisely on point. In fact, they reminded me of a couple of things I should have included (or will include if I take this further). First, is the fact that it's not just the content we upload, distribute, communicate, send, share, etc. that is being gleaned and parsed. Facebook, for instance, tracks messages people delete without sending. Sophos, the anti-virus guys, suggest that it's pretty easy to do, argue it's pretty innocuous and then point us to an article that says Facebook also tracks the movement of the mouse pointer. In other words, they want to know what we're thinking so they can copy that and sell it, too.
Some of our Services allow you to upload, submit, store, send or receive content. You retain ownership of any intellectual property rights that you hold in that content. In short, what belongs to you stays yours.
When you upload, submit, store, send or receive content to or through our Services, you give Google (and those we work with) a worldwide license to use, host, store, reproduce, modify, create derivative works (such as those resulting from translations, adaptations or other changes we make so that your content works better with our Services), communicate, publish, publicly perform, publicly display and distribute such content. The rights you grant in this license are for the limited purpose of operating, promoting, and improving our Services, and to develop new ones. This license continues even if you stop using our Services (for example, for a business listing you have added to Google Maps). Some Services may offer you ways to access and remove content that has been provided to that Service. Also, in some of our Services, there are terms or settings that narrow the scope of our use of the content submitted in those Services. Make sure you have the necessary rights to grant us this license for any content that you submit to our Services.
Our automated systems analyze your content (including emails) to provide you personally relevant product features, such as customized search results, tailored advertising, and spam and malware detection. This analysis occurs as the content is sent, received, and when it is stored.
As you can see in the emphasized text above, Google appears to define “intellectual property rights” as my right and ownership of the original IP, defined most clearly as content. However, Google has the right to do an awful lot of things to my original IP “for the limited purpose of operating, promoting, and improving our Services, and to develop new ones.” Not much in there about developing myself as my own property using Google Services. While I’m not willing to go so far as to suggest that my identity is my content, I struggle to differentiate who I am from what I post on Facebook. Not that I’m entirely transparent and forthcoming in Facebook, but a version of me is nonetheless visible and available on that platform; assuming Facebook terms are similar to Google terms, I have a feeling that my identity as content belongs less to me and more to Facebook.
We may combine personal information from one service with information, including personal information, from other Google services – for example to make it easier to share things with people you know. Depending on your account settings, your activity on other sites and apps may be associated with your personal information in order to improve Google’s services and the ads delivered by Google.
Google creates my profile from various details that I’ve shared across its vast array of services. I’m a Web Manager, which means I’m logged into Google Services every waking (and many sleeping) minutes of every day. I use Google Analytics, Google Chrome, Google Search, Google Drive, Gmail, and I like to look at YouTube videos of cute doggies and kitties. I have a Google+ account that is tied to a Google Business account, and I have scores of services tied to my Google Account for login credentials. As I read the bold text above, Google is generating its version of me from its various interactions with me across its services. From Gmail it identifies my subscriptions, my deleted messages, and my friends and colleagues. From Google Drive it recognizes the data I collect and analyze and the texts I write (and I write a decent number of texts) for scholarship and business. From each of its services Google collates my profile, my identity, and then uses that information to customize my search results and ads.
I think your conclusion is right on target, Marc. We are being copied (and pasted) by them.