Stop chasing the law

I appreciated the information Nemire was presenting in "Int Prop Dev and Use for Dist Ed Courses", yet I was concerned with the propensity of the article to "chase the law". This non-critical standpoint didn't stop at the legal system, but continued when discussing university policies as well. Here are four of the more egregious logical fallacies, with some commentary on why I believe them to be particularly misleading or damaging for uninformed readers. Overall, the lesson seems to be that people truly interested not only in not getting into trouble but providing a more equitable education system need to stop chasing the law and start acting in ways that manipulate the way the courts have to conceive of that law. I'll now pull a quick quote from Krause and Palm who, though they were talking about unionizing [graduate student] labor, seems appropriate.

Waiting for the law to change is also not an option because it relies on a misleading conception of the political process. Given the weakness of political parties, there are few effective mechanisms to hold elected politicians accountable to workers' interests as laws get made. Labor leaders have long repeated the maxim that organizing does not follow the law -- the law follows organizing. If workers do not build power on the ground, the law will not change.[1]

So let's take a closer look...

Advancement of knowledge and progress in technology drives the need for protecting inventions, new ideas, writings, music, and other media. (26)

And here the author is, in the first sentence of the abstract, doing us a solid by letting everyone know we're on board with copyright protection. Why does the "advancement of knowledge" unquestionably require "protecting"? Why not give knowledge away for as close to free as we possibly can?

Read in a more productive light, what sorts of protections does the "advancement of knowledge" require? Though the phrase "progress in technology" scares me in general when used as a reason for motivation, and the rest of the article plays into that suspicion, we can take our productive reading's cue from that arena. Here, I'm back to my favorite example of subverting copyright from within that system, Free and Open Source Software. We need to protect knowledge not from its being exposed to fellow human beings, but from those folk taking that knowledge and, through an abuse of law, making it their own, commercially. Unfortunately, that's not what Nemire means in this sentence or the balance of the article. We're looking at using copyright in a conventional means, as we'll see explained a bit more in our next three quotes.

The university is one of the largest providers of intellectual property. It is reasonable, then, to consider that the university has a stake in faculty, staff, and student activities regarding intellectual property. (29)

Did you hear the gasket pop in my head? *sigh* The connection needs to be made explicitly. I make lots of [figurative, I mean, of course!] poop, if you know what I mean. We can discuss what sort of stake that means I should have in its disposal. What specifically about providing IP, which I argue is precisely the university's raison d'etre, means they should be worried about IP created downstream?

Nemire doesn't give her comments this connotation, but I will: It is not "reasonable" in some fatalistic sense that the university should have a financial stake in the intellectual property it helps its, what, users? create, and that pulls me into a quote from a bit further along the same page.

When royalties are involved, some universities require faculty members to turn over part or all royalty payments to the university because documents were created on university time, using university technology.

We, as scholars and educators -- as those employed outside of the business world, in a position where the public trust is that we're not focusing on "Recruit. Retain. Solicit." -- have to take issue with the user of the word "because" here. The reasoning behind Nemire's "because", even if it's intended to be offered as a proxy in place of those universities that practice such viral practices, has already been undercut by the phrase "some universities". There is no universal "because" where the because only works for "some".

What's happening at those "other" universities? How is it that being "created on university time, using university technology" doesn't equate to their becoming king to your royalties? Give to Caesar, sure, but who made the university into the monarch?

The same sort of uncritical, "that's just the way it is" reasoning occurs in the following section as well, just a bit earlier than the last quote:

Faculty should have several concerns when considering intellectual property. They need to be aware that they are relinquishing their copyright when they publish academic work. It is common practice and will likely continue, as most journal editors and publishers want to own the information in their periodicals.

"It is common practice and will likely continue" does not review the law, only teach its readers to conform to it for tradition's sake. You may ask, how did this tradition get started? I'll tell you. I don't know. But it's a tradition. (quoting Fiddler on the Roof, a snippet of which is helpfully included above, of course)

What are the options in the law? Do you own your work when you publish a book? What sorts of contracts are out there? How can we inhabit the law?

How can we stop chasing the law and start living within and manipulating it?

[1] Monika Krause and Michael Palm. Forthcoming. "Activists into Organizers. How to Work with your Colleagues to Build Power in Graduate School", in: Monika Krause, Mary Nolan, Michael Palm, Andrew Ross (ed.): The University Against Itself: The NYU Strike and the Future of the Academic Workplace. Philadelphia: Temple University Press, 2008, pg. 226-7