Blackboard, Fair Use, Copyright

Mine gracious host, Jed, recently gave a few links about copyright and fair use, for which I thank him. As many Gentle Readers are aware, I worked for a few years with issues of education and intellectual property, so I tend to be a bit of a crank about that end of it particularly. I find that most people, even most people within academe, don’t understand the law about education and fair use and distribution, which is understandable, as the law is for crap. The crap state of the law means, more than usually, that the law is whatever a judge will say it is, and there isn’t really any good way to predict what a judge will say it will be. Still. Today’s news that yet more copy shops are being sued for piracy reminds me that I wanted to talk about another recent event in the education and copyright field. First, however, let me state—for the record—that Your Humble Blogger is shocked, shocked, to discover that a Gnomon copy was less than careful with its copyright compliance.

Oh, dear.

Well, and the big news is that Blackboard, which for those of you who aren’t in the business is one of the top college-course-management software packages, has teamed up with the Copyright Clearance Center to integrate CCC permissions with the course pages. Why is this big news? Well, you wouldn’t know from the news articles, which mostly read like press releases. Even somewhat skeptical articles such as Blackboard use raises copyright concerns by Ian Yarett in the Swarthmore Phoenix don’t mention, for instance, the question of who will be billed for the permissions, and how; I assume that each student in the class would be billed the cost of the material, thus eliminating the lower-cost library reserve option. It’s possible, however, that the College will cover costs out of tuition (also eliminating lower-cost options) or even insist that instructors cover the costs out of faculty support accounts, which would be preposterous in the extreme.

I’ll take a moment here and post my opinion that the Copyright Clearance Center is a bad, bad organization, dedicated to squeezing money out of institutions that want to follow a decent permissions process. First of all, they charged (at the last I heard) a buck a whack just for asking, even if the permission is either denied or left open. They then charge the copying institution a per-page fee (well, a moderately complicated formula based on a per-page fee plus a fixer’s fee) and then take a piece out of the publisher’s end, as well. Now, you might think that because the CCC was created as a not-for-profit that was created to simplify the permissions process, that they are Good Guys. Not the case. For one thing, if that was the case, then they would be willing to do a good deal of the copyright research themselves. Nope, if you send them a citation that isn’t quite right, they will just charge you a dollar and send it back for more information. In fact, for most stuff, you have to get enough information before sending a permissions request to the CCC that it would be just as easy to send a request to the publisher directly, cutting out the middleman and saving money. Yes? No. The CCC has arranged exclusive agreements with many big corporate publishers that prevent you from doing that. The aim is not to simplify, but to extend their monopoly.

And, of course, the CCC is the aggressor when publishers sue Gnomon Copy. Yes, the publishers are the plaintiffs, but I’d bet dollars to doughnuts that the CCC found the infringement and brought it to the publishers. They are looking for people to sue, and they are looking to either get those cases settled with big money (and an implication that the publishers would win) or looking to get a judge to clarify the law in favor of the publishers, either of which will extend their reach. The CCC is not particularly interested in making things easy for Professors and students; they are interested in more money passing through their hands. That said, they are doing all this within the (crap) law, and I have no sympathy for Gnomon Copy, which was allegedly trying to cheat their (intellectual) vendors. The fact that I dislike the CCC does not mean that I think their actions are illegal, or even that they are behaving badly in this case. I’m just saying that when you think of the CCC, keep in mind their interests.

Now then, what is the CCC interest in getting together with Blackboard. Yes, massive revenue increase, as a fair number of instructors begin actually paying for material they had previously been distributing without permission. But the infrequently asked question is this: will Blackboard provide the CCC with back-door entry into password-protected classroom sites to determine if infringing material is being distributed? OK, that’s a bad way to put it. I’ll try again. If you are an instructor using Blackboard, are you being watched? Clearly, Blackboard could allow access; NYU’s administration used that access in the grad student strike. I haven’t seen the license, but if I were involved, that would be the first question I would ask, and if I were told that the CCC wouldn’t have peeking rights, I wouldn’t believe it.

Of course, I wouldn’t post copyrighted material to a course site without permission. No, it has not been shown to be included in Fair Use. No, it doesn’t appear to fall under the classroom use exemption. The legislature had the opportunity to clarify that, and failed to do so. No, it isn’t exactly the same as putting hard copies on library reserve; it is more obviously close to handing out a hard copy to each student. No, none of this is certain to lose in a court of law, but the trend, lately, is for both legislators and judges to rule in favor of copyright holders. Yes, even a small excerpt may be found to infringe, if it is used to avoid having students buy the book. No, I don’t think the murkiness of the exemption works to anybody’s particular advantage, except the CCC. Yes, I think instructors should follow the law even behind password-protected doors.

Still, when I said to an instructor that the agreement between Blackboard and CCC would mean that he could no longer post copyrighted material without permission, he said “then why would anyone use Blackboard?”

chazak, chazak, v’nitchazek,
-Vardibidian.