In 2009, I was asked to be part of a panel on “Copyright in the Age of YouTube” that was part of a regular Technology-Enhanced Learning Seminar Series sponsored by the Digital Media Center at the University of Minnesota. I was told that it was purely a coincidence that this panel turned out to be the very last event in that series, and that its subsequent cancellation had nothing to do with my talk. That claim may even be true . . .
I want to bite the hand that feeds me.
I want to bite that hand so badly.
With the younger, angrier, edgier Elvis Costello as my philosophical guide, what I want to do today is to embrace the productive power of a good polemic. In particular, I want to talk about three things that I cannot do as an instructor in the current intellectual property climate (even though, from a pedagogical perspective, I should be allowed to do all three freely), and then I want to point to three ways that the University has made it much more difficult for instructors to do such things (even though, ideally, the University should have been at the forefront of defending such practices).
But first, three disclaimers.
Disclaimer #1 is that, technically, I can do all of the things I’ve just said I can’t. The real problem is that I can’t do them without either (a) running afoul of the increasingly restrictive regime of intellectual property law or (b) placing an unreasonably expensive burden on my students. As a matter of pedagogical practice, I actually do do all of the things I’ll discuss in a moment — largely because they’re too important to my pedagogy not to do them — but I do so at a level of risk and/or cost that simply shouldn’t be in play at all.
Disclaimer #2 is that my complaints about “the University” aren’t specific to Minnesota: they’re complaints about the University as a generic institution. To the extent that this institution has contributed to the larger problem, it’s done so for long enough now that the relevant blame can safely be spread across several different administrations, not just the current one. And I should also note that the University is often a contradictory place, and that many universities — including this one — have people and units working diligently to try and protect and enable the sorts of practices I’m concerned with here . . . but those noble efforts often run against the grain of the University’s other IP-related policies.
Disclaimer #3 is that, in reality, both of these lists are actually much, much longer than I have time for today. These are just the highlights. Or, more precisely, the lowlights.
The first thing that I can’t do in my classroom is to use copied clips and/or still images from DVDs as illustrative examples for lectures and discussions. Admittedly, this issue affects media studies courses much more than other types of teaching — but the effect can be crippling. An art history professor can show slides of paintings and sculptures in class without breaking the law. An English professor can read a poem or a portion of a novel aloud in class — and maybe even provide handouts of the excerpted text — without needing to contact the university’s general counsel for clearance to do so. But a media studies professor who tries to engage in that same sort of pedagogical “show-and-tell” by capturing still images from a DVD or by copying small excerpts from one or more DVDs onto a new medium (a laptop, a flash drive, another DVD) can only do so by bypassing the copy protection mechanisms encoded into every commercial DVD — and, in so doing, they’ve violated the Digital Millennium Copyright Act. The DMCA comes with no “fair use” provisions. Even the attempt to bypass a digital lock on someone else’s intellectual property constitutes a crime. And so I break federal law simply by prepping for class with software that allows me to place clips from multiple DVDs on a single disc.
The second thing that I can’t do when I teach is to create “coursepacks” consisting of audiovisual materials. Even if I avoid DMCA issues by working with “antique” analog media (e.g., audio and videocassettes) or with digital media that aren’t “protected” by software “locks” (e.g., most audio CDs), there’s still no viable legal or institutional system in place that allows me to create, say, an audio anthology of “required listening” for my “Communication and Popular Music” course that’s even roughly analogous to the print anthologies of “required reading” (aka, coursepacks) that many instructors routinely use in their courses. Imagine, if you will, trying to teach a course on American poetry without there being a reasonable, legal way for your students to actually access and read a poem (or three) outside of your classroom, and you’ll begin to see what media studies instructors come up against all the time when trying to teach courses on film, television, popular music, and so on.
Mind you, even those print-based coursepacks are increasingly unwieldy. Enough so that they’re actually the third thing that I can no longer do when I teach. Coursepacks may work effectively — emphasis on “may” — in situations where the readings they anthologize are relatively few in number and come from publishers who are generally supportive of “fair use” practices. When I create coursepacks for my various media studies courses, however, I’m often drawing from a mix of scholarly and “popular” sources (e.g., feature stories from magazines, newspaper articles, etc.). In a best case scenario, those “popular” sources jack the price of my coursepacks up. Way up. Largely because they’re coming from sources who will be more concerned with maximizing their profits than with promoting a broad and open scholarly dialogue. In a worst case scenario, however, I have to cut popular sources out of my syllabus because the publishers in question never bother to respond to permissions requests. Either way, however, the current climate around coursepacks means that, if I use them, I wind up having to teach whatever material happens to be economically affordable, rather than whatever material I feel is is intellectually worthy.
Ideally, the University should work to protect and defend the sorts of practices I’ve just described as legitimate and necessary forms of sound pedagogy, as textbook examples of “fair use,” and as non-threats to the commercial viability of the various forms of intellectual property that are in question here. And maybe, once upon a time, the University did precisely that. Today, however, it does not. Instead, it actually contributes to the problem in at least three major ways.
First, the University’s fiscal abandonment of libraries — dating back to the economic downturns of the late ‘80s — produced a ripple effect that had a dramatic effect on the political economy of IP. This is too long a story to do justice to here, but a small piece of it is this. Once upon a time, university presses could afford to sell cheap paperbacks on razor-thin profit margins to students and scholars and other individual readers because they could offset those financial losses with standing orders from university libraries for pricier hardbacks. When University administrations started slashing library budgets to the bone in the ‘80s and ‘90s, many of those standing orders went away . . . and the presses that managed to weather the storm had to find new sources of revenue to stay afloat. And one of the most reliable and profitable of such sources was — surprise — the newly created market in permissions fees for coursepack reprints.
Second, the University’s desire to pursue the ownership of IP for the purpose of maximizing revenue streams — especially, though not exclusively, in the area of scientific and medical patents — has undercut its ability to actually promote itself as a space dedicated to the free and open exchange of ideas. There’s been a huge IP “land grab” by the University over the past 10-15 years . . . and, in effect, that move was only feasible because the University retreated from defending an intellectual “commons” with the sort of rigor that it once had.
Third, over the past twenty years or so (if not longer), the University has spent an awful lot of energy reframing and repacking higher education as a consumer-centered and commodified enterprise. An enterprise where students are customers, campuses are shopping malls, and courses are profit-generating “deliverables.” And, in that context, the University has almost no space left to defend things like “fair use.”
I have no illusions that I can singlehandedly reverse the twenty-plus-year tide of the University as an increasingly commercialized and commodified space with a ten-minute rant. But if we’re going to talk about the IP-related challenges of teaching “in the age of YouTube,” then I think we need to remember that the sorts of specific nuts-and-bolts issues that come up in individual classrooms are shaped in significant ways by the institution’s broader practices around IP. And that if we don’t at least try to change the latter, then all we’re really doing is trying to win a tiny space for things like “fair use” and “free exchange of ideas” within a larger regime that has no use for such “antique” ideals if they can’t be transformed into profitable revenue streams of some sort.