by Erica Charis

In 2011, when MOOCs first started to catch on in the United States, the course offerings were tipped heavily toward the “hard” sciences. Coursera’s cofounder, Mr. Ng admitted to the Wall Street Journal in 2013 that, “[t]here was a real question of whether this would work for humanities and social science.” (Geoffrey A. Fowler, “An Early Report Card on Massive Open Online Courses,” Wall Street Journal Online, October 8, 2013, available at https://www.wsj.com/articles/sb10001424052702303759604579093400834738972)

One of the key questions in many disciplines revolved around third-party owned materials. For decades, numerous courses leveraged fair use in the classroom to teach using copyrighted material, beyond what was available in the public domain. MOOC instructors, faced with a classroom that seemed to extend fair use’s educational provisions to the breaking point, raised serious questions about whether their courses could even be taught effectively with all the copyrighted materials stripped from them.

If there were questions about humanities and social science courses, there were even more significant doubts about music courses. When Berklee College of Music released its first MOOC in 2013, there was little-to-no precedent for teaching practical music skills online, much less in an open, high-enrollment environment. Additionally Berklee had built its reputation specifically on popular music instruction. Yet, four years later, Berklee has 31 courses on the Coursera, edX, and Kadenze platforms in both English and Spanish, with five more English courses in production and six Portuguese courses in development.

With popular media being high on the list of materials targeted for take downs, cease and desist letters, or potential legal action, how has Berklee found its way around those thorny legal implications? In most cases, the faculty did what they do best: they got creative.

A few stellar examples are:

• Gary Burton’s improvisation students analyze examples he wrote. George W. Russell’s musicianship courses do the same with twelve-bar blues tunes penned by the instructor.

• Thaddeus Hogarth introduces his students’ guitar techniques with his own songs, where he is the copyright owner.

• Pat Pattison makes listening recommendations to his lyrics students, explicitly referencing only rhythms and language tools.
• Chrissy Tignor-Fischer’s students to practice Pro Tools production techniques using a demo song from one of the students, who granted permission for its use.

Music Business and Music Therapy courses leverage nearly entirely open access content for their required readings.

There is in fact only one case where the unavoidable use of third-party content resulted in a paid fee for permissions. Sometimes, however, a class needs to assert fair use to make its pedagogical point. For example, Gary Burton’s students are given access to a jazz standard lead sheet to give them a piece from the canonical repertoire to work with for their final assignment. A songwriting course currently in development may use excerpts from a Radiohead tune, though the examples will be played by the instructor and not directly from a recording.

On a broader scale, these strategies fit well within the context of solutions observed and actively promoted at other institutions. A working group of edX-affiliated librarians recently released a best practices document on intellectual property materials in MOOCs, consolidating a wide variety of approaches into a outline of “different methods for optimizing use of third party materials, while still maintaining low-to-moderate [legal] risk.”  When no public domain materials are sufficient, materials owned by the institution, or open access and open licensed materials are highly recommended.

Discovering or creating such materials can be labor intensive, but as the popularity of Berklee’s MOOCs seems to indicate, the materials can be both effective in instruction and attractive to prospective students.

Erica Charis is the Creative Writing Instructor for Berklee Online and former Assistant Director of Assessment of Programs and Planning for Learning Resources at the Berklee College of Music’s Stan Getz Library

by College Art Association

The process of creating a Code of Best Practices in Fair Use for the Visual Arts, which the we released at our annual conference in February, has already changed our community for the better, and we have barely begun to use it.

Creating this Code has been a two year process, conducted in conjunction with American University professors Patricia Aufderheide and Peter Jaszi. When it began, we knew our field was beset by problems put in motion by one simple axiom: when in doubt, ask permission. 

Scholars were frustrated; it sometimes took years to get permissions for illustrations for a monograph–or even a journal article. Graduate students had taken to selecting thesis topics based on ease of permissions. Editors were frustrated by balky processes and the occasional blank space where permissions did not work out. Museum professionals had stories upon stories of exhibitions gone awry or delayed interminably for permissions. Artists were hesitating to experiment with digital artforms or make recombinant art. They sometimes told their students to create anything they liked…until they wanted to exhibit it. 

Harvard Art Historian, Suzanne Preston Blier, who is Vice President for Publications at the College Art Association and a member of the Committee who helped to shape the code points out that “This is a potential game changer. Image permission questions have shaped publishing decisions for much of my career, adding long hours of difficult and frustrating administration work as well as months and sometimes years of wait to projects.”
She adds: “Costs of publishing images, which is critical in this field, can be huge and there is a well-entrenched (if erroneous) lore among art scholars about how the core problem might be addressed.”

These familiar stories were only known to one’s own corner of the field. It wasn’t until we did the research, funded by the Samuel H. Kress and Andrew W. Mellon Foundations, to show the scope and depth of the problem overall that we could see the consequences. We were keeping ourselves from doing the work we love in the way we know it should be done, because we were not sure when legally we should get permission, when we did not have to, and what our risk really was. 

That awareness helped drive us forward in the process of deliberations that resulted, a year later, in our Code. We focused on five common practices: writing about art, teaching about art, making art, museum practices, and digitizing collections. 

“The brilliance of this Fair Use Best Practices Code,” says Blier, “is not only that it now exists, but also that it is written in a very accessible way and encourages each of us address individual cases through a series of clearly written questions. In short this is something each of us can do on our own, but also knowing that the College Art Association is behind this and can offer potential help if stumbling blocks emerge along the way. “

We are aware that the Code itself doesn’t change anything. It is a tool to making decisions ourselves. The College Art Association has funding from the Mellon Foundation to do education and outreach over the next two years, to help people in our community practice making the decisions that they can comfortably say are the ones that best further the work they do, within the law. 

by Dan Booth, Partner at Booth Sweet LLP, a Commercial Arts & Technology law firm located in Cambridge, MA.

It’s routine in copyright debates to hear appropriation artists depicted as heartless vampires who feed off their sources and thoughtlessly toss the sullied victims aside. I’ve experienced the opposite. Fair use is routinely practiced by artists who pay savvy, creative tribute to those they admire, exploring and building from their inspirations. For example, Lauren LoPrete’s Tumblr page This Charming Charlie discovered a missing link between Peanuts and the Smiths, and became an Internet phenomenon. Heedless of fair use, Universal Music threatened it with DMCA takedown notices. At first Lauren considered giving up, announcing on her page, “I know it’s over.” But she decided to strike back punk-rock style, so we went public. She posted our counter-notice on her page the day we served it, making plain why her work is a paragon of fair use. 

The Internet rallied to her support with Smiths fans from Morrissey discussion boards to the LA Times pointing out the obvious: a band that hadn’t existed in decades could only benefit from this sort of attention. The people at Universal Music backed away silently, realizing they’d gone after the wrong person. (Again.) The site got even more famous and even Morrissey embraced it, profoundly gratifying for a lifelong Smiths fan like Lauren:

This is where the ethics of her methods become clear. She’d never profited from the site, but people started clamoring for This Charming Charlie merchandise; a friend of hers even found a This Charming Charlie knockoff shirt for sale in South Korea. Lauren seriously pondered both the legal and ethical aspects. I counseled her by asking, “What Would Ian Mackaye Do?”

The popular view of fair use is one sort of punk rock approach: take what you want until you get caught. Ask forgiveness, not permission. But that’s a mindset that assumes fair use isn’t really a right – it’s something you only get away with. I’m suggesting a more rigorously ethical Ian MacKaye approach: do unto others. One way to look at fair use is to put yourself in the source’s shoes and ask whether the source you’re building off would consider it fair. In this case, we actually know that Morrissey considers your site better than fair. But would he consider it fair to profit off his appreciation? Or would he feel like his generosity had been taken advantage of? Asking permission is the conscientious way. It’s punk, just not gutter punk. 

Lauren took that to heart. Cool and thoughtful as always (yes, I’m her lawyer so I’m partial, but I consider those observations objectively true), she declined to go to market, deciding to stay true to the original nature of her project. This sort of fair use is a creative collaboration with the past, practiced by artists rigorously aware of the lines between an author’s rights and the public interest, and using those lines as their medium and message. That’s not vampirism; it’s rejuvenation.

Dan Booth is an attorney and founding partner at Booth Sweet LLP, in Cambridge, MA.  Booth Sweet LLP is aCommercial Arts & Technologylaw firm.  They serve as counsel for the creative industries, handling clients’ day-to-day business law issues, including intellectual property protection and licensing. From copyright to contracts, trademarks to trade secrets, the law plays a critical part in the creative industries.  Dan is also an officer and member of the Board of Directors of Passim, a nonprofit arts organization and an active member of Volunteer Lawyers for the Arts.

by Sarah Jeong. Sarah is a 3L at Harvard Law School.  She writes about technology, law, feminism, and civil rights/civil liberties.

Most law students, at some point or another, will spend time on a journal subcite. The process involves pulling all the sources cited in the footnotes of an article, and meticulously going through the article line by line, footnote by footnote, making sure that everything checks out. Subciting guarantees a certain quality in articles—I’d even go as far as to say that it’s integral to the creation of new legal scholarship.

Today, subcites rely heavily on new technology like cloud drives and search engines. Journals collect electronic sources in a Dropbox, which then gets shared with multiple journal members. Sometimes we scan or photograph pages out of books—that goes into Dropboxes, too. As for search engines: I’d love to see numbers on how many Google searches will be made before a journal article is finally sent to the printers—all I can say is that the final number is probably very, very large. And let’s not even get into what a godsend Google Books can be in a pinch.

I don’t think people realize the extent to which fair use rules everything around them. A pdf in a Dropbox is a copy. When twenty journal members download that file, that’s another twenty copies made. We need to make those copies just to be able to check citations—and thanks to the fair use doctrine, we have that leeway.

The simple ability to do a Google search is also something that we have the fair use doctrine to thank for—search capabilities hinge on caching, and caching has been deemed to be fair use.

And as for Google Books? It took eight years of litigation, but that too is a fair use.

Without fair use, a subcite would be impossibly illegal. Of course, that would be a completely absurd outcome. But that’s the whole point of fair use: without fair use, copyright is completely absurd. Fair use is the part of copyright that gives us room to breathe, to move, to actually get things done. Things like criticism, parody, art—and yes, even legal scholarship.

by Christopher David DeLaurenti. Christopher is a sound artist, improvisor, and phonographer based in Virginia. His sound work encompasses field recordings, electroacoustic and acousmatic music, text-sound scores, free-improvised low-tech electronics, and compositions for acoustic instruments. His latest work No Sound Is Stolen: Fair Use Music 1983-2013 was just released today, Wednesday February 26^th, 2013.

Although I’ve used snippets and substantial segments of other people’s music in my own work for decades, I have always avoided terms like plunderphonics, sampling, mashups, and sound collage.

Sonically, the names sometimes fit, but I felt instinctively that I needed another term: Fair Use Music.

It took me over 20 years to decide what to call this stuff. Discovering John Oswald’s four track EP, Plunderphonics, at the King County Library in 1994 spurred me to finish Three Camels for Orchestra. Yet calling what I do plunderphonics doesn’t feel right, despite my affection for the term and love of Oswald’s music. In my heart, I know I’m not stealing anything.

I hate the word sampling; the connotation of superficial, fly-by listening belies the profound challenge – and seduction – of sampling: To make what someone else has recorded yours. Sampling also denotes repeatedly triggering the same sound from a keyboard, pad, or predefined loop, something I would never, ever do. I love it when others do it well (namely The Bran Flakes, People Like Us, Escape Mechanism, Negativland, Steev Hise, Wobbly, Evolution Control Committee, Paul Dolden, and others) but it’s not for me. I prefer to hew and hone fragments (with debts owed to the amazing Noah Creshevsky and John Wall with a kinship to the Randomized Control Trials of Martin Bland) as in Three Camels or subject a song to convolution and other DSP and end up with “Sylvian’s Wood.”

I almost adopted “sound collage.”  Visual artists offer ample and inspiring precedents. Max Ernst’s Woman with 100 Heads is a masterpiece of precise construction. Hannah Hoch and Romare Bearden are giants of the 20th century art. Alas, collage still suggests disparate fragments rather than a single entity – casual rather than causal order. The comparison has limits: Some of my edits are (to my ears) invisible, others blunt and obvious. Visual collages seldom capture the continuum from evident assemblage to seamless entity.

Several years ago I settled on Fair Use Music, which denotes how I use others’ music both legally and aesthetically. Copyright has gone too far and lasted too long. Elastic and ever-changing copyright terms (14+14 years in 1790, now 95/120 years or life+70 years as of 1998) remind us that such rights remain arbitrary with no inherent basis in artistic creation. Laws merely a century or two old and superannuated by interminable extensions should not impede anyone’s experience of – or eagerness to transform – music.

When I create, I hope to reveal how I listen. Since you stand a greater chance of already having heard a commercial (more or less) popular recording, my fair use music illustrates how I listen more transparently than anything else I make.

There is no money in making this music; every time I sit in front of a tape deck or laptop, I, like most artists, metaphorically open a wallet or purse and set dollar bills aflame. Burn baby, burn! I make my work in defiance of capitalism at an irretrievable fiscal loss. But if everything was priced fairly, everything would cost nothing – just like the music below.

- Adapted from the liner notes to the album No Sound Is Stolen: Fair Use Music 1983-2013 which has been released today, Wednesday February 26^th, 2013.

by Brandon Butler, Practitioner-in-Residence at American University, Washington College of Law, Washington D.C.

I can’t remember for sure, but there is a very good chance that the first cassette I bought with my own money was a “Weird” Al Yankovic tape. (If it wasn’t, it was Run D.M.C.’s “Tougher Than Leather,” which tells a fair use story of its own.)

I became a huge fan of Yankovic’s when I was in elementary school, and I actually heard some of the touchstones of modern rock music first as polkas (all the classics of the Rolling Stones catalog, for example, are recapitulated in the epic Hot Rocks Polka medley). I think I loved Weird Al so much because he appropriated macho, grandiose songs and made them into nerdy, silly, absurd little nuggets with guitars replaced by accordions and big 1980’s production turned into cheesy novelty.

By Antmantrunks (Own work) [CC-BY-SA-3.0] Wiki Commons

As a wimpy nerd, it was extremely empowering to laugh at what other people thought was cool, to mock what they thought was tough, and to see images of domination and power twisted into stuff that was, well, goofy and weird. I know that Yankovic generally asks permission as a courtesy (though he isn’t afraid to go forward without it), and he may even pay royalties to some of his subjects. That doesn’t mean he isn’t in some basic way a beneficiary of fair use; without it he could never mock his subjects unless they agreed to it, a permission that might have been easy to withhold, especially if the parody cuts a little close to home.

I love fair use because it empowers people like Al (people like me!) to quote culture at itself, to twist it a little bit, to mock it, and to make it our own. Fair use is a great equalizer, something all us nerds, and perhaps some of you non-nerds, too, need if we’re going to make it to adulthood in one piece.

by Gail Clement, Scholarly Communications Librarian and member of the Fair Use Resource and Support Team

“In Fall 2013, the Texas A&M Libraries launched its new Fair Used based Electronic Reserves program, shifting away from a prior policy that relied on numeric cut-off amounts and other fixed criteria.  The new Fair Use policy relies on faculty members to certify that their course materials placed on E-Reserves are pedagogically necessary and therefore represent a Fair Use. The only exclusions to the policy are in-print materials produced expressly for the educational market, and licensed materials with terms and conditions that prohibit placement on Electronic Reserves.

TAMU Libraries’ video ‘The Pedagological Zone’ introduces the new Fair-Use Based E-Reserves Policy (note clever product placement for the Code of Best Practices in Fair Use in the foreground!)

Crafted by a cross-unit team within the Libraries with guidance from the General Counsel’s Office, the policy recognizes that instructors are the only ones who can establish what materials, and in what amounts, are necessary to meet  pedagogical objectives.  Library personnel are, however, responsible for ensuring that faculty have an understanding of copyright, Fair Use, and terms of library licensed resources.  To that end, the Libraries charged a Fair Use Resource and Support Team (FURST), comprising library copyright specialists, to devise training materials, workshops, and  to answer questions as they arose.  

Each year faculty members must re-certify that they have read and understand the policy, in order for their course sites to be activated in the Electronic Reserves system. The current policy is available online from the Libraries website (http://library-reserves.tamu.edu/areslocal/pdfdocs/er_guidelines.pdf). Faculty have been certifying with reported ease.

Analysis of policy implementation based on the Fall 2013 pilot is underway, and project team members expect to publish their findings in the library literature within the coming months.”