How Some Online Undergraduate Students Understand Copyright

HOW SOME ONLINE UNDERGRADUATE STUDENTS UNDERSTAND COPYRIGHT

Carlos Ovalle () and Philip Doty ()

School of Information, University of Texas at Austin

1616 Guadalupe St., Suite 5.202, Austin, TX 78701

When considering copyright, college-age students are often presumed to do nothing but misappropriate others’ creative works or, even worse, act as so-called “pirates” as they share such work with others. Some copyright owners assert that such behavior is based on two foundations: ignorance of the law and an unwillingness to pay what is fair for creative works. But, when one looks carefully at what such young people believe and why they do what they do, the picture is more complex. The authors examined statements about copyright made by nearly 1,000 undergraduates over several semesters in a lower-division undergraduate elective offered online at the School of Information at the University of Texas at Austin.This course, in its various iterations, has been offered since 1993. Copyright is one of the five modules required of all students in the course. The statements show the complexity of the students’ attitudes about copyright and their engagement with manyintractable conflicts about copyright and cultural production.

The copyright module provides a brief introduction to copyright. The instructors discuss the reasons for a copyright system and explore the major primary and secondary sources of copyright law in the U.S. The module examines the exclusive rights of rightsholders and exemptions to those rights available under law, followed by a discussion of copyright and digital material. This poster focuses on some of the themes identified by nearly one thousand students who have taken the course in the last two years, derived from the synchronous online chats and follow-up comments of the course participation assignment.

Students have two ways of fulfilling the module’s participation requirement. Students can participate in an interactive Webcast where one or more guests appear in a live streaming video. Students join a chat room created for their section of the course, and their instructor and/or a teaching assistant joins in the chat room to keep the chat on track. Students are graded solely on their participation in the chat rooms as well as a follow-up question in the discussion forum. The student can answer a series of questions in the discussion forum based on the subjects discussed in the synchronous chat. The chats are an “open” forum, and the students determine what is discussed.

When we look at the chat logs, there are many spontaneous expressions of students’ beliefs about copyright. We identified three major themes important to the students taking the class over the past several semesters and to cultural production:

Extreme frustration with or disrespect for copyright law
The first major theme was students’ frustration with copyright law and/or their disrespect for elements of it. The frustration had a number of sources, e.g., the complexity of copyright statutes and jurisprudence, the apparent difficulty in using creative works to make new creative expression without misappropriation, fear of surveillance, and presumed dysfunctionality of copyright, especially for digital works.
Concerns about creativity and how copyright affects it
The second major theme involves the nature of creativity including how to build on existing work, what creativity means, concerns about the First Amendment and free expression, and engagement with conflict among utilitarian,incentive, and natural rights theories of copyright.
Profit and copyright
The third major theme that the students’ posts exhibited involves the role of profit (what many termed “money”) in copyright and in creativity. Sub-themes here included greed, critiques and defenses of distributors (the Disney Corporation in particular), and confusion about private, non-profit use of copyrighted works.

The poster explores some of the students’ expressions and demonstrates how these expressionsengage some of the intractable policy problems related to copyright in the United States and prominent in the scholarly literature.

DISCUSSION

Many people make unexamined statements regarding the file sharing of college students. They assert that such activity is unconsidered and at least partly due to ignorance. They attribute these activities to the students’ desire for free material and easy access to enabling technologies. The popular press regularly makes such assumptions, and they have also been the focus of Congress. Congressional testimony on the subject is overwhelmingly provided by strong rights-proponents, notably from the recording and motion picture industries. To many Congressional members, students are thieves engaged in “rampant file-stealing” (Wexler, 2003, p. 8). Industry representatives state that their “primary market decides it would rather steal than pay for the product it gets,” and warn that Congress should “imagine what happens when those students graduate and carry this behavior into the real world” (Sherman, 2006, p. 16).

In contrast, the undergraduate students’ expressions engage many difficult conflicts related to copyright, its purpose, and other questions that copyright theorists have long wrestled with. For example, one student’s statement that “we are forgetting the larger purpose behind the creation this law” (the Digital Millennium Copyright Act) touches on two vexing questions in copyright jurisprudence and theory. The first is why copyright was developed as a legal regime, its rationale, and its purposes. In the U.S., copyright was developed on utilitarian principles as a means to provide creators an economic incentive to create; ultimately, such creation should lead to the “Progress of Science and Useful Arts” for the benefit of the public. However appropriately, copyright laws are often discussed as a “balancing act” between the rights of creators and the rights of the public. As Litman (2001), Patry (2009), Vaidhyanathan (2001), Lessig (2001), Gillespie (2007), and others note, however, it is difficult for “the public” to assert its rights during the lawmaking process. Students are aware of this difficulty, and many of their comments reflect on business interests in conflict with the public interest. One student stated that, “I think it is absolutely absurd that some big business or entity is able to use the law to suppress the rights of the millions of other people that live in this country.” Similarly, several students expressed the belief that copyright law has been co-opted by large companies in ways contrary to its purpose.

The second vexing question is the controversy surrounding the Digital Millennium Copyright Act of 1998 (PL 105-304). Among other changes, the DMCA created new rights related to the digital distribution of materials. The DMCA made it illegal to circumvent Digital Rights Management (DRM), without consideration of whether the use would ordinarily be fair. There are no time limits on these anti-circumvention restrictions. One student expressed frustration with use of the law to limit rights, stating that, “People [in this context, copyright holders] use the law and DRM to get around fair use.” In this student’s opinion, copyright is not about providing incentives for creation, but a means of control over the use of creative works. Students have expressed beliefs that such control has free speech implications, looking at examples where copyright has been used to take down legitimate speech. One student complained that, “Copyright is pushing free speech off a cliff.”

Restricted expression has had substantial and growing attention in the copyright literature, e.g., Julie Cohen (1996), Neal Netanel (2008), Tarleton Gillespie (2007), Kerr & Bailey (2004), Larry Lessig (2001), James Boyle (1996 and 2008), and Lange & Powell (2009) on the complex relationship between copyright and the right of free expression, especially as instantiated in the First Amendment to the U.S. Constitution. Even a strong rightsholder advocate such as Paul Goldstein (2003) recognizes that the maximizing of copyright holders’ ability to monitor and control users’ ability to access, read and other otherwise use copyrighted works may bring courts’ attention to how copyright has further encroached onto free expression. For many decades, jurists and the copyright bar have comforted themselves that copyright does not trespass unduly onto free expression by relying on the so-called safety valves that weaken rightsholders’ exclusive rights: the limited nature of the copyright term, the right of fair use (17 USC 107), the right of first sale (17 USC 109), the idea/expression dichotomy (a concept which has come under increasing critique from many quarters (e.g., Lange & Powell, 2009; Vaidhyanathan, 2001), and special protections carved out for certain libraries and archives (17 USC 108).

The ability of these safety valves to protect First Amendment interests and the public interest in the production and distribution of creative works that copyright is meant to support has long been an object of criticism by many. The students’ statements about the First Amendment and the ability of copyright to protect creators’ interests and the larger public interest indicate their sensitivity to the difficulty of assuming that the safety valves work.

Students note the tension between the economic and utilitarian views of copyright and competing notions of encouraging creativity. The economic model is not necessarily sufficient to encourage, or even describe, creation. A student shared his opinion on the economic role: “Music is an art form. People will always create art and express themselves (whether or not they get paid).” Rather, students recognize that the economic benefit can act as an incentive for distributors while having little to do with creators. A student complained that, “Copyright’s existence is solely to make money and not about the rights of the artists.” Students are also aware, however, of the important role of distributors in the development of material, and the potential harm that illicit file sharing might have on existing industries. One student seeking to defend the music industry informed her colleagues that, “No revenue = no music industry.” Students struggle to combine these disparate views of the industry and its role in creation.

Another major source of frustration and inhibition using copyrighted works is the unpredictability of copyright and dissatisfaction with responses such as “it depends” and the overall complexity of the law. For example one student said that, “Copyright laws are so variable it’s hard to determine if you’re breaking the law or not,” while another noted bluntly that, “There is so much grey area with copyright… it sucks.” As is widely recognized, while there has been a proliferation of tools to make and share creative works, especially digitally, there has not been increased clarity or useful guidance about how to make new works, use others’ creative expression in one’s own work, or the like. As every copyright expert recognizes, whether in a court of law or elsewhere, determining if a particular behavior violates rightsholders’ exclusive rights is based on the particulars of the instance in hand. Sensitivity to the specifics of the situation is little comfort to creators, students, users of creative works generally, schools, other institutions, or nations. Rightsholders, especially large media distributors, while bemoaning the presumed ignorance about copyright, rely on that ignorance to unfairly characterize all sharing as “piracy” and to paint young people in particular as unrepentant lawbreakers.

The concept of fair use is particularly problematic for the students in INF 312. The four factors in deciding if a use of a copyrighted work is fair, and thus not subject to injunction, take-down, fine, or other punishment for copyright misappropriation, are these outlined in 17 USC 107, and include the character of the work, the character of the use, the amount used, and the effect on the market for the work. Courts have a great deal of latitude in weighing these factors, and, therefore, there is great uncertainty by all parties in predicting if a court will rule a use fair. This latitude that courts have is by design, not just by the common law principles of the rule of precedent (stare decisis) but also by the deliberate generality of the statutory expression of fair use in the 1976 Copyright Act. As another student said, “I do not think fair use is fair at all. It is much too vague, causing confusion and almost identical cases to be judged differently.”

On a related note, one statement by a student demands special attention: “How can the rule of law be promulgated if your average joe doesn’t even know it? That doesn’t seem fair.” Such a situation seriously undermines the rule of law. That, in and of itself in a polity such as ours that asserts itself as subject to the rule of law not men [sic], is a serious public policy problem. Even worse, however, is what else such widespread uncertainty about law does. For example, we are a nation of over 300 million from many social, ethnic, and cultural traditions. One of the few things that hold us together is our shared understanding of the law and our trust that the law will be equitably applied. Without such faith, the social fabric unravels (Relyea, 2002). We can also think of law as a rhetoric, a major way of creating and maintaining community, telling us how we should behave, what other citizens’ expectations about our behavior are, and so on (White, 1987). What such uncertainty does, in addition, is make millions of persons into criminals or make them think that their behavior MAY be criminal. This uncertainty is especially problematic if the people are young and if the behavior involves the creation and use of expressive works. Instead of supporting cultural production, copyright ends up unnecessarily inhibiting citizens’ creation and creative use of others’ work – a paradoxical outcome, indeed, for a legal regime meant to encourage the creation and distribution of expression. This is a high price to pay in addition to the way that copyright alienates ordinary people from the law, from respect for the law, and from a sense that the law is fair and therefore deserves respect. As noted earlier, Congress and others have expressed their concern that college students are law-breakers. Students share that concern, and their overall confusion and frustration with many aspects of copyright law does little to provide answers.

CONCLUSIONS

We have discussed only a few of the students’ statements above, and only to a very limited extent. It should be clear, however, that young people’s attitudes and beliefs about copyright are complex, sophisticated, indicative of thoughtfulness, and anything but simplistic.

Copyright is an important gateway to the production of culture: it is intended to support creative expression while placing limits on what we can do with others’ creative expression for a limited time. Copyright is a major condition under which creative expression is made and shared. The discipline of information studies, like others, is especially concerned with cultural expression. Further, information studies is committed to a professional ethos that aims to ensure the creation of culture. We are similarly committed to the preservation of cultural expression, as testified to by the importance to us of institutions of memory such as libraries, archives, museums, schools, research institutes, and similar institutions. The students in this online undergraduate class over two academic years have given us insight into the complexity of their beliefs and attitudes about copyright, correct and mistaken. Given the growth of undergraduate education in information studies, the work we have to do is substantial in helping young people understand the complexities of copyright, especially for cultural production. At the same time, we have every reason to believe that students are eager for instruction and ready to make the most of it.

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