An Intentional Encounter with Copyright: Thanks to PCWorld Magazine

Background and Context “Make your point crystal clear with free pictures and movies off the Web.” That’s what the PCWorld article said. And that’s just the thing I needed – badly. I was preparing for a presentation at e-Learn 2004 in Washington, DC. I had created a PowerPoint presentation outlining the paper I’d submitted and now wanted a good introduction with eye-catching visuals. (The first step in Gagne’s Nine Events of Instruction is gaining attention.). I happened to notice the cover of the November issue of PCWorld on my kitchen table. Was this a gift, or what??? (Note: You can read the article in the magazine at Bass, S. (2004) New Tricks with Images and Videos. PCWorld. November 2004. pp. 53. or online at http://www.pcworld.com/howto/article/0,aid,117804,00.asp). I turned quickly to the article and looked at the smiling face of the author, Steve Bass. “Yes!!!” I said. Feeling very much relieved, I began reading. This little how-to article told me to use Google’s Advance Image Search feature to find exactly the right content to “wow” my audience. “Yes???” I said, not feeling quite so reassured. My presentation was on the development of a course on copyright. Might I inadvertently embarrass myself if I showed copyrighted material and did not adequately explain why it was fair use? Did I even want to the issue raise? I only had 15 minutes to make my presentation on my design methods for the course. I was not instructing my audience in copyright concepts. Getting “the learner” (my audience) sidetracked was not among Gagne’s events of instruction. What to do???? “Toto, I’ve a feeling we’re not in Kansas anymore,” quote from Noel Langley (1898–1981), U.S. author, Florence Ryerson, and Edgar Allen Wolfe. By Dorothy, in The Wizard of Oz (film, 1939), on arriving in the Land of Oz. The words do not appear in Baum’s original book, The Wonderful Wizard of Oz (1900). Citation: The Columbia World of Quotations. New York: Columbia University Press, 1996. www.bartleby.com/66/. [10/23/04]. That phrase popped into my mind. So why not follow the advice that was given to Dorothy, and follow the yellow brick road? What kinds of adventures might I have when encountering intellectual property issues? I decided upon a set of questions I wanted to consider and developed an action plan for exploring them. Hopefully, while my big adventure was unfolding I’d find some suitable materials for my presentation…

Questions What kinds of material would I find through the search engine? How would I know whether it was copyrighted? How would I know who was the owner? Did I need to obtain permission to use the work or could I use it under the Fair Use exemption? How would I obtain permission to use the work? Would the terms of the permission be reasonable (time and money were an issue)? What perspectives on the issue of copyright would I encounter from those persons I contacted?

Action Plan Follow the instructions in the PC World article and locate some useful material Note which sites I visited and how/whether there was any information provided regarding the copyright status of the contents Contact the webmaster, etc. and ask about permissions Reflect on my experiences and share them with my audience (along with any visuals I was able to use).

The Story Unfolds

What kinds of material would I find through the search engine? There was no way to answer this question without taking the article at its word and trying it out. I read the following sentence and clicked on the link it supplied, “If I'm looking for a specific image, I use Google's Advanced Image Searchsite. It's remarkably comprehensive, if you use it correctly.” (If you click on the link above, you’ll go directly to Google’s search page; this quote was copied from PCWorld at . http://www.pcworld.com/howto/article/0,aid,117804,00.asp) Now to find something. And find something, I did. I put “wizard of oz” in the exact phrase field and let Google do the rest. I got tens of thousands of “hits.” The hits were displayed as thumbnail graphics from sources ranging from commercial websites selling Wizard of Oz dolls, calendars, and posters to less commercial sources such as “org, net, edu, and gov” concerns. I browsed a few results pages. A large number of thumbnails seemed to be stills or posters from the MGM (Metro Goldwyn Mayer) movie. They were hosted on websites that seemed far removed from MGM and the MPAA (Motion Picture Association of America). Some of the images related to the book that inspired the movie. I picked two sites: 1) a student’s website from a large state university on the east coast and 2) a Library of Congress’ website exhibit. The student website was something obviously done for a school project. It was particularly attractive because of the beautiful graphics (some of them animated) depicting scenes from the movie. The Library of Congress website had very little to do with the movie; it was an exhibit celebrating the 100th anniversary of the publication of the book, “The Wonderful Wizard of Oz,” by L. Frank Baum in 1900. The graphics that intrigued me were photographs of the actual copyright application submitted by the author and his illustrator for The Wonderful Wizard of Oz and for Baum’s other book, The Navy Alphabet (see the images of his original application and his entry for registration, number A 19092, at http://www.loc.gov/exhibits/oz/images/vc7p1.jpg, http://www.loc.gov/exhibits/oz/images/vc7p2.jpg, http://www.loc.gov/exhibits/oz/images/vc7p3.jpg), and http://www.loc.gov/exhibits/oz/images/vc8p1.jpg). The price of two copyrights at the turn of the last century was $2.20.

How would I know whether it was copyrighted? The short answer to this question was, “I would have to assume it was, unless I had clear indication that it was in the public domain.” And the movie, at least, was not in the public domain. That was why it was important to find a contact on the student’s website. The photos of the copyright application at the Library of Congress were a little trickier. The documents themselves were public records. The photograph was on a government website. The material was factual in nature. My guess would be they were public domain. But my adventure would lie in finding out.

How would I know who was the owner? The individual images themselves were not credited at either website (the Library of Congress did provide credits to some of the images, but not the ones I was interested in). If there had been a notation, I might have been able to check with the Copyright Clearance Center at http://www.copyright.com. At least the Library of Congress website had a contact link. It also had a web page crediting the sources for the site. There was no information about the website owner on the student’s page, but knowing how to “read” the URL construction in a typical university web naming convention, I could use the university directory to find the student (if s/he had not invoked the Privacy Act). So I now had contact information for each site.

Did I need to obtain permission to use the work or could I use it under the Fair Use exemption? Quite frankly, I thought my use would easily pass all four Fair Use Factors. I did not intend to publish my presentation globally, but only for purposes of education and information, and had no reason to believe that my use of the work would interfere with the market for the original. In fact, there was no market for the materials at the Library of Congress. The materials on the student’s website were obviously commercial and perhaps I should consider whether a license mechanism was in effect that would allow the copyright owner to gain compensation for my use of the work. I decided, however, that my use of the work without payment would certainly be fair use unless the copyright holder had developed these materials with persons “like me” in mind as the market – people who want to use a graphic to interest their audience. It was unlikely that the graphics on the student’s website were marketed as such, but it was not inconceivable that they were. Many companies develop visuals and media for use in presentations. Here’s an example. If you are working in PowerPoint and don’t find a graphic or a presentation layout suitable for your purposes, the program features a link so you can visit Microsoft’s website and search for additional materials. Some of the materials are available gratis from third-party providers. But those third party provider also offered some really eye-catching products, for a price. Obviously, the free materials were free advertising. (I did browse some of the products offered for sale by third party vendors. Surprisingly enough, some of them were available for free at the Microsoft site. It pays to shop around.) But let’s return to my story, in search of Oz graphics. If I merely wanted the graphics, I probably could have stopped right here, copied the images, pasted them and saved my enhanced presentation. But I was curious to see how the web developers perceived their own use of these items.

How would I obtain permission to use the work? For the Library of Congress website, I used the standard contact link. I knew the name of the curator by looking at the credits page. But I had no clear way of contacting him, nor was I even sure that he was still at the Library of Congress. I sent the following email to exhibits@loc.gov on 10/20/04: I am an adjunct instructor at George Mason University in the Graduate School of Education. I will be giving a presentation at the AACE E-Learn conference in Washington DC on 11/1. I wanted to include some images from the movie, The Wizard of Oz, specifically, the image, http://www.loc.gov/exhibits/oz/images/vc7p1.jpg in my PowerPoint slide show. My presentation will be on Instructional Design Strategies for Learning about Copyright and IP. The LOC website is a great resource, btw. Please let me know whether I might use the image. I will attribute the source, both the URL and the caption on the page housing the jpeg. I am receiving no fees for the presentation, and the PowerPoint Presentation will only be shown at the conference. A week passed and I received the following response: Whenever possible, the Library of Congress provides factual information about copyright owners and related matters in the catalog records, finding aids and other texts that accompany collections. As a publicly supported institution, the Library generally does not own rights in its collections. Therefore, it does not charge permission fees for use of such material and generally does not grant or deny permission to publish or otherwise distribute material in its collections. Permission and possible fees may be required from the copyright owner independently of the Library. It is the researcher's obligation to determine and satisfy copyright or other use restrictions when publishing or otherwise distributing materials found in the Library's collections. Transmission or reproduction of protected items beyond that allowed by fair use requires the written permission of the copyright owners. Researchers must make their own assessments of rights in light of their intended use. “That was a helpful response,” I thought sarcastically. If I knew how to get in touch with the copyright holder (if there was one) I wouldn’t be sending a message to the contact email. I replied back to the message restating my intention. This time, I think the receiver understood my purpose. Three days later, I received a phone message from Frank L. Evina, the curator listed on the exhibit page. He confirmed that a staff member had taken the photo. Now, I was completely confident that the photo was in the public domain. The case of the student website was an entirely different story. I found her name in the directory, and emailed her on 10/20: “I am an adjunct instructor at George Mason University in the Graduate School of Education. I will be giving a presentation at the AACE E-Learn conference in Washington DC on 11/1. I wanted to include some images from the movie, The Wizard of Oz. I'd been reading the November issue of PC World and read an article that told me how to get "free images and movies" off the web to jazz up a presentation. The site I was directed to was Google (where else???). Using the Advanced Images Search Engine I found your site, [page URL omitted] I would love to use some of the images on your website for my PowerPoint Presentation - especially those on the page, [URL omitted]. I'm guessing that you got them from some other source. Could you identify the source so I could get permission to copy them? If you are the owner, might I copy the images into my presentation (and attribute them to you, of course). My presentation is on Intellectual Property and Copyright “ I received the following reply the next day: “The images to which you refer were part of a website that I had to post for a class assignment. I have removed the link/images from my portfolio until I can find out where I obtained the photos. I am sorry to have wasted your time, and I hope you are able to find the original author of the photos. I found them by searching Google for Wizard of Oz items. Good luck on your presentation! I wish someone had presented it to the class I had taken, because I would have known then to obtain permission before using the images.” I suppose the MPAA (Motion Picture Association of America) would have been proud of my, but I wasn’t proud of me. I wrote her back: “Please accept my apologies for the inconvenience I have caused you. I am not a lawyer but I certainly don't think you would have gotten into any serious legal trouble by using the images, especially since your work was done as a student and the site itself has no real commercial value. Questions of fair use aside, it's always nice to cite your sources. :) I hope your instructor gave you high marks for the website. And I certainly did enjoy the images.” I did use the images from the Library of Congress in the presentation and talked to some of the attendees about my experiences with the student after the presentation. Since the conference, I’ve Googled for wizard of Oz images and found plenty from budding webmasters at other universities. I’m not going to say a word to them.

Would the terms of the permission be reasonable (time and money were an issue)? As it turned out there were no “terms of permission.” In the LOC case, no permission was needed, and in the student case, the “trail went cold.” But reader take note, it took me almost two weeks to verify the source of the materials at the LOC exhibit. The time factor for just finding out whom to ask can be as daunting as any permission fee. And this consideration made a stronger case for fair use in my mind. My decision to use the material was spontaneous and there was no time to find the owner and pay any fees. Of course, the copyright holder may take a dim view of my “spontaneity.” “Lack of planning is no excuse for irresponsible downloading,” I can hear the MPAA’s (Motion Picture Association of America) lawyer arguing to the judge. Students are famously “spontaneous.” Is spontaneity really a factor in a fair use argument? I leave the reader to consider it.

What perspectives on the issue of copyright would I encounter from those persons I contacted? The student I contacted was apparently unaware of any need to gain permission for use of another’s work. I think her ignorance was typical. In my experience, when students first come to grips with the concept of “exclusive rights” and need for permissions, their response falls into one of two categories: complete denial or complete surrender. The student with the Oz website reacted by completely surrendering, and that response is as troubling as that of the obstinate student who believes that record companies charge too much for CD’s and is, therefore entitled to get whatever s/he can for free.

Conclusion

What did I learn from my experiences? The experience caused me to reflect on my own experiences as an educator and a student, to review some common practices as I’ve experienced them, and to draw some conclusions. Educators need to sensitize students to the issues without paralyzing them. However, educators too may feel bewildered by the complexity of the issue, even when “armed” with institutional policy knowledge. Such policy often does not make the fine distinctions necessary for all cases and many of the questions students ask. At the heart of student questions may be, in fact, the uncertainty that exclusive right is a right, and whether the law itself is right. Quoting policy does not address these questions. Many students and educators fail to differentiate essential differences between student’s works and works in the adult world. Students generally are practicing. The goal of their experimentation is learning, not producing. The products generally have little market value (except to help market the student). In cases where students actually do market their products, such works change in their purpose and fair use provisions may no longer apply. Aside from the market for student products, there exists a pedagogical problem when narrowly interpreting fair use for students. Students need real world experiences in order to enhance their learning. Thus, they must interact with the artifacts in the real world. The student in this scenario was learning how to develop a web page. A web page (and a web site) is a complex construction: a central design idea must emerge that then guides the student in the actual development process. The outcome needs to reflect the original design. This implies the creation or acquisition of content for that website. Beginners are unable to master all the technologies needed to produce such content. From an instructional point of view, it’s sometimes better to delay teaching content production and focus the student on design concepts by providing them with ready-made. Since content “drives” the design, giving students “cookie-cutter” materials to work with often short-circuits their creative process and decreases their motivation. Enter the Internet and search engines such as Google. Using a search engine, students can locate content that is of interest to them. They can design a website that is more meaningful for them personally, one that will engage them more deeply in the learning process. This is every instructor’s ideal. And the key to that is allowing the student to have some choice in the design and a suitable selection of content. This is the point of fair use. But by failing to inform students why in some cases, copying freely from others’ work is acceptable and when it should be avoided, instructors create the impression that anything posted on the Internet is available to be used for any purpose whatsoever. Moreover, by allowing students to create projects without properly attributing their sources, instructors contribute to sloppy student scholarship and unethical practices. I’m sure the student who created the Oz website didn’t dream that anyone would mistake those graphics for her own work. In her mind she did not think she was plagiarizing because she felt it was obvious that she did not create the graphics; she was not claiming another’s work as her own. But lack of attribution is also a serious breech of ethics. Instructors who focus too closely on whether their students have grasped the mechanics of the discipline/technology being taught may overlook these omissions. Fair use they are not. And even if they are common practice, they should not be permitted, not when attribution is so easily done. It’s a courtesy to your website visitors and a gracious gesture to the creators whose work is housed there. Sometimes instructors require their students to post their work in a “closed” web environment, such as Blackboard or WebCT. This practice certainly relieves any fair use questions. However, non-attribution in a Blackboard website is no more acceptable than it is on the Web.

The never-ending journey When I first read the PCWorld article in print, I used the PCWorld “find” link, http://find.pcworld.com/43950, to open the link to the Google Advanced Search Feature in my browser. If you’ve used PCWorld find links before, you may remember that the items these links opened were displayed in a PCWorld “frame.” And that frame had “persistence” (it generally did not go away). Thus all links in the “found” page would open in the PCWorld’s frame AND display a PCWorld URL. There are some possible “infringement” if not “plagiarism” issues involve in displaying another website in your own websites’ frame (and not telling your visitor where the external content is coming from). As of January 2005, PCWorld had evidently discontinued the practice of using frames in its find links. Even the old links (like the one I used) were no longer framed. (That should tell you something right there…) In this scenario I have omitted a discussion of the many problems and puzzlements I had to address when I first read the article in October, primarily because my readers will no longer be able to experience them firsthand. I invite you to visit Brad Templeton’s discussion, “Linking Rights,” at http://www.templetons.com/brad/linkright.html. He contrasts various techniques web pages use to provide content to visitors and discusses the potential ethical and legal issues. By January 2005 Google also had changed the way its Advanced Image Search feature displayed content. Google used an “intelligent” frame to display a thumbnail of the image on the top and the actual page containing the image in a scrollable frame on the bottom. The URL was prominently displayed in the frameset. You knew where the image was actually located. Also prominently displayed in the top of the frame was the advisory, “This image may be subject to copyright.” Perhaps this change in Google’s presentation was in response to a lawsuit pressed on it in November of 2004. See “Porn publisher sues Google over images,” By Chris Gaither / Los Angeles Times, Monday, November 22, 2004 at http://www.detnews.com/2004/technology/0411/22/technology-12360.htm. Excerpt: Beverly Hills pornography publisher sued Google Inc. for copyright infringement Friday, accusing the Internet titan of failing to adequately remove from its search results thousands of photos posted online without permission.” An article on Google’s business philosophy exclaims that Google is not taking the safe road when it comes to “serving up content” to its customers. See, “Google: The Search for Internet Intellectual Property Integrity and Financial Security” by David J. Stephenson, Jr. at http://www.fwlaw.com/google.html. Excerpt: “One of Google's business strategies is to push the limits of intellectual property law as far as possible in order to optimize Google's technological innovations. Google's policy is to not only anticipate what the law will be, but to create it. As shown by the summary judgment disposition in Google's favor after the other defendants had settled out of court in Geico, Google expects the law that it creates will surprise its competitors and therefore give it a competitive advantage.” Nonetheless, Google is well-aware of the Safe Harbor clause in copyright law and allows webmasters to control what content gets indexed and served up to it’s customers. It offers webmasters and copyright holders a way to protect their work from the Google bots and its Internet Search Engine. See “Remove an Image from Google’s Image Search” at http://www.google.com/remove.html#images. I would not be surprised if many universities invoked this option to prevent student pages from finding their way into search lists. By quietly suppressing Internet searches, universities may be exercising prudent safeguards, but students may feel their rights of free expression are being secretly extinguished.

And When I Got to The Conference If you recall, this story began after I read the PCWorld article, “Make your point crystal clear with free pictures and movies off the Web.” I went in search of compelling visuals for my E-Learn presentation using Google. I should finish my story by telling you what happened at the conference. As I was preparing to make my presentation at E-Learn, the PC I was using experienced a drive failure. Unable to utilize my PowerPoint slides, I had to improvise until the technicians could remedy the situation. Luckily, I had this wonderful adventure to share with my audience of educators who certainly related to my experiences in the “Merry Old Land of IP– I mean, Oz.”

Resources, References and Related Issues

Were the Oz graphics copyrighted? Yes. See Section 102 Subject Matter of Copyright in General at http://www.copyright.gov/title17/92chap1.html#102. Also, see Chapter 3: Duration of Copyright in Title 17 at http://www.copyright.gov/title17/92chap3.html. The Oz graphics were derivative works from the movie, “The Wonderful Wizard of Oz,– released in 1939. Under current (2005) copyright law, the movie will not fall into the public domain until the end of 2034, assuming no further extensions to copyright terms are enacted by that time (see Copyright Term and the Pubic Domain at http://www.copyright.cornell.edu/training/Hirtle_Public_Domain.htm. The book the movie was based on was copyrighted in 1900. Twenty-eight years later it was granted a second-term extension; that term elapsed in 1956 and the book is now in the public domain, although certain publishing companies have reprinted the story and have distribution rights over their works in those publications (visit the Copyright Clearance Center at http://www.copyright.com/). (See, “To Own the Wizard: Oz Artifacts,– at http://www.loc.gov/exhibits/oz/ozsect3.html).

Did the copyright holder have a right to determine whether the images should have been used in the website? Yes (although there are exceptions to the exclusive use rights of authors/copyright holders defined in Section 106 Exclusive Rights in Copyrighted Works. http://www.copyright.gov/title17/92chap1.html#106)

Did the student make Fair Use of the images (thus negating the exclusive right of copyright holders in this case)? Here is my (IANAL – I am not a Lawyer) unofficial “statutory” analysis of the Four Factor Fair Use Test (see Section 107. Limitations on exclusive rights: Fair use http://www.copyright.gov/title17/92chap1.html#107): factor 1) nature of the use. The nature of the student’s work was educational, and educational activities are generally acceptable as fair use. The purpose of the website was to educate herself, not the public in general; the educational benefit here is a private one, but one she might have had to forgo if the images proved too “costly” to obtain for educational purposes, and that argues for the use of them in such projects as a public good. Without knowing the source of the images, it is difficult to assess the remaining fair use factors: 2) nature of the work used (whether they actually were intended to generate revenue or were provided by the author “pro bono”), 3) amount/substantiality of the total (were there many more or, if not, did these at least not constitute the “heart” of the work), and 4) potential value/effect upon the market. In particular, it is impossible to make any assessment of factors two and three, since the body of work in question is not known. One can only make speculations about the last factor, the potential value/effect upon the market. It is unlikely that her use diluted any demand for the images, however, the fact that her site was featured very prominently in a Google search (within the first 20 “hits” out of over 20,000 pages) might argue that her work could dilute “the market or value” if there was a potential market for the images. The most recent court cases involving findings of infringement in fair use cases were based upon a judgment of failure of the fourth factor. Potentially she might have had hundreds of visitors (based on her rankings in Google’s results), and they might have been tempted to do what she had done: copy the images for their own personal use. Her work could dilute “the market or value” of the images - if there was a potential market for the images. Arguments about lost revenues are generally speculative -- one reason why the law permits fines as remedies in lieu of actual damages (see Chapter 5 Copyright Infringement and Remedies in Title 17 US Code at http://www.copyright.gov/title17/92chap5.html). Moreover, some legal analysts argue that the fourth factor itself involves an element of circular reasoning that makes it untenable as an evaluative precept (see Redefining the Market Failure Approach to Fair Use in an Era of Copyright Permission Systems. Lydia Pallas Loren. 1997. http://www.lclark.edu/~loren/articles/fairuse.htm).

Are there any cases of students being sued for copyright infringement? As of January 2005, there are no cases of students being sued for copyright infringement for works used in educational projects required by instructors, even if those projects are posted on the Internet and available through search engines. (This does not include instances of “take down” notices served to students which never reached the courts, nor does it include content posted at university websites by students acting under their own initiative, see “Apple Sues Student: Computer giant accuses undergraduate of publishing trade secrets,” by Joseph M. Tartakoff, 1/12/05 at http://www.thecrimson.com/article.aspx?ref=505326). There are a growing number of cases of educational institutions being sued for secondary infringement for downloading of music files by their students (such uses were not shown to be educational in purpose). Students themselves have been named in those cases and have been held liable for damages. See the following articles on the web: “New Round of Lawsuits Against 717 Illegal File Sharers Includes Continued Focus On University Network Users Who Illegally Download Music,” RIAA (Recording Industry Association of America) website, 1/24/05, at http://www.riaa.com/news/newsletter/012405.asp and “RIAA Targets College Students with 750 More P2P Suits,” by Keith Regan, E-Commerce Times 10/29/04 at http://www.ecommercetimes.com/story/37721.html. But students are finding ways to protest copyright laws that they feel are overly protective of big business, see “Students Fight Copyright Hoarders” by Katie Dean, Wired News, Nov. 10, 2004 at http://www.wired.com/news/culture/0,1284,65616,00.html.

Was the student’s use of the images “unethical?” Social and legal norms indicate that what she does was a breach of conduct, if an unintentional one. She clearly did not attribute her sources and was guilty of plagiarism. She did not consider whether she had a right to use the materials, a right that overshadowed the exclusive rights of the copyright owner. See Introduction to Intellectual Property - from Educator's Guide to Intellectual Property http://lrs.ed.uiuc.edu/wp/copyright/intro.html. Her appropriation of the images was indicative of a strongly held assumption, especially among persons who have had access to computers almost all their lives and have not made a living generating IP, that if it’s on the Internet its free to appropriate for one’s own purposes. 10 Big Myths about Copyright Explained: a website by Brad Templeton http://www.templetons.com/brad/copymyths.html

Is the current view of intellectual property the only “right” way of ensuring creativity and public benefit? If you read, “The Story of a Manuscript,” at http://cnx.rice.edu/content/m11802/latest/ you’ll see that at different times in differing places creative works were used, interpreted, modified, shared, and built upon freely. Modifications, interpretations and errors introduced into a work might lessen the “authenticity” of a document and certainly would be viewed as “sloppy scholarship” by today’s standards. It seems that even Section 106A Rights of certain authors to attribution and integrity at http://www.copyright.gov/title17/92chap1.html#106a was not clearly a breach of conduct.

Is the student’s use of the images and her perception of the utility of the Internet a minority perspective? Probably not. Many Internet users look at it as a tool for communication and for free information. See “Counting on the Internet,” a report from the PEW Internet and American Life Project. December 29, 2002 at http://www.pewinternet.org/pdfs/PIP_Expectations.pdf. The assumption that the Internet is a commercial enterprise (or one that is mostly commercial) has been advanced by some analysts (see “Technology is Changing What's ‘Fair Use’ in Teaching—Again.” (2002, January 12). Education Policy Analysis Archives, 10(4) at http://epaa.asu.edu/epaa/v10n4.html), but surveys have shown that even though people shop on-line they still view the Internet as basically a “free” resource and a benefit. The question of whether the Internet is a “free” or a commercial enterprise is not a very meaningful one. The Internet is too heterogeneous for such generalizations. The January 2005 study, : Internet: The Mainstreaming of Online Life.,” by the PEW Research Center at http://www.pewinternet.org/pdfs/Internet_Status_2005.pdf examined the changes in Internet usage patterns and new technologies, including broadband access. While the technology used to access the Internet is usually “commercial” (meaning that it is sold for profit), the services, activities and content/products obtained through the Internet were by no means predominantly commercial. “By the end of 2004, nearly 60 million Americans with access to the internet at home logged on with a fast connection. When broadband at work is added, 72 million Americans have access to high-speed networks either at home or in the workplace. Those high-speed, always-on connections influence people’s behavior online. Those with broadband log on more often and spend more time online. They do more internet activities. They more actively participate in the online commons by creating and sharing content,” (p. 67). The study also found that users, no matter how they accessed the Internet, favored similar activities, “Even as internet Use has grown exponentially, the hierarchy of metaphors that describe it has remained constant: The internet is most of all a mail pigeon, then a library, then an amusement park, then a shopping center,” (p. 64). Some of these activities, such as shopping, involved direct monetary transactions by users. Some might have been free of charge. Those that were not free might have been paid for by the user under a blanket subscription type arrangement. The content accessed under such subscriptions would not have been pay-per-view (although such arrangements do exist) and thus, the “commercial” nature of the activity might not have been evident to the user. Services that did not cost the user might be supported by other revenue streams: paid advertising, public funding, or even grants. To say that every service has some business plan and some method of covering costs is not, however, to label it as commercial. And while Internet users may be oblivious to these considerations, it does not follow that the majority of the services they use are commercial.

Were the images at the Library of Congress exhibit website in the public domain? Yes, the documents (copyright applications) were not “original” but wholly factual and thus were not eligible for copyright protection, see Section 105 Subject Matter of Copyright: United States Government Works at http://www.copyright.gov/title17/92chap1.html#105. The photos of them were taken by an LOC employee in performance of his regular duties (see the work for hire sections in Chapter 2: Copyright Ownership and Transfer of Title 17 US Code at http://www.copyright.gov/title17/92chap2.html) and were on that count, public domain. In fact, the story by L. Frank Baum is now in the public domain, although the movie upon which it was based is not. See Chapter 3: Duration of Copyright in Title 17 at http://www.copyright.gov/title17/92chap3.html.

Should the student have taken down her website? The answer depends upon whether you view her use of the graphics as fair use or not. In an earlier paragraph, the student’s use of the images was analyzed against the Four Factor test of the Fair Use. The fourth factor, effect upon the market/value, was the most problematic. The impact her site would have on any market for the graphics she used would certainly have been minimized were it not for the prominence the site had in Google’s Advanced Image Search – and she had no control over that. Perhaps because of concerns like this, Google gives webmasters the option to omit the indexing of certain domains or sub domains for Google’s search engine (see Remove Content from Google’s Index at http://www.google.com/remove.html). Presumably her school could have saved her the embarrassment she experienced with me by “opting out” on indexing student web pages. Had it done so, her site would never have appeared in my search.

Is the Internet a public forum or a regulated space? Without the “promotion” given it by Google, the student’s web page would have been just another document in the backwaters of the Internet, and the argument of potential harm to someone’s market would have evaporated. Some would argue that this suppresses the right of free expression; see Siva Vaidhyanathan. Copyright as Cudgel. The Chronicle of Higher Education. Washington: Aug 2, 2002.Vol.48, Iss. 47; pg. B.7. First Amendment (free speech) and intellectual property law are often at odds, and the question of whether the university had the right to control the visibility of content residing on one of their servers that was created by a member of their community is another issue. Google clearly believes that too much recognition can be a bad thing. And Google does not permit the student to decide whether her website should have exposure. Google requires that the site’s webmaster must initiate the “opt out” agreement, and had that been the university’s position, no amount of protest on the student’s part would have availed her. Moving her content to another site would have been her only alternative.

Would the university have taken down her website if the copyright owner had complained? Yes, because the university would have been liable for secondary infringement had they not done so. The safe harbor provisions of the DMCA clearly state that service providers must have in place methods to handle complaints from copyright holders, including “take down” procedures. See What Colleges and Universities Need to Know about the Digital Millennium Copyright Act, CAUSE/EFFECT journal, Volume 22 Number 1 1999 at http://www.educause.edu/ir/library/html/cem/cem99/cem9913.html. See the Safe Harbor provisions in Section 512. Limitations on liability relating to material online at http://www.copyright.gov/title17/92chap5.html#512.

Are students really that unaware of copyright and infringing activities? She told me her teacher had never discussed the issue with her. She also indicated that she had taken the course several semesters ago. Had she taken the course today, things might have been different. With the passage of the TEACH Act, colleges and universities ramped up their outreach efforts to ensure that their citizens were adequately informed of copyright laws. Those institutions without written policies moved expeditiously to codify them. See Balancing Copyright Concerns: The TEACH Act of 2001. by Laura Gasaway Educause Review November/December 2001 at http://www.educause.edu/ir/library/pdf/ERM01610.pdf. It is possible that instructors today might still omit discussions of copyright, thinking that fair use applied more generously to students than working academics. However, this student probably would have received information on copyright law and university policy elsewhere if not in the classroom. Most technology support groups offer courses and web-based FAQs to students; students are advised to read the student codes of conduct in their handbooks (discussing both plagiarism and respect for IP as well as penalties for violations). It’s rather unlikely that today she would never have been told about these issues. Whether she would have applied them to her own situation when considering whether to copy the images without attribution, is another question. The heart of responsibility resides in the intersection of theory and practice, of knowledge and action.