For more information, please see the following press release: http://www.law.yale.edu/news/12077.htm

MFIA, an initiative of the Yale Information Society Project and the Knight Law & Media Program at Yale Law School, was founded by Yale Law School students to defend the public’s right of access to government information and to support traditional and emerging forms of newsgathering.   Through MFIA, Yale Law students work under the supervision of veteran media attorneys who volunteer their time pro bono on cases where private actors lack the resources to prosecute the public’s access rights. More information about MFIA follows:

• About MFIA – http://www.law.yale.edu/intellectuallife/11200.htm
• MFIA Files Amicus Urging Protection of Anonymous Online Critic – http://www.law.yale.edu/intellectuallife/11453.htm
• MFIA Files Appellate Brief on behalf of Journalist Denied Access to Court Records – http://www.law.yale.edu/intellectuallife/11466.htm

If you read the fair use statute, you might think that the copyright law’s framers shared this intuition:

“[T]he fair use of a copyrighted work … for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; …”

Perhaps those who access and transform copyrighted materials in the course of educating themselves—and in the course of educating others—are engaged in use that is fundamentally and categorically fair? Even if you don’t interpret the first sentence above to set forth a definitive list of fair use activities, it’s clear that Congress sought to carve out a strong exemption from liability for educational uses of copyrighted works. Based on the fair use statute, it looks as if the question of whether a use occurs in the context of teaching, scholarship, research, or education should be a threshold question, rather than merely one single factor in a broader inquiry. Indeed, Congress later affirmed in Section 110 that the “performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction” is not infringement.

So, then, what’s the worry for glee clubs? Or for that matter, what’s the worry for students who design a wiki around an in-copyright novel; edit that wiki by adding passages from the novel, images from film adaptations of the novel, and excerpts from critical reviews; display their work at an achievement fair; offer the wiki to a teacher who proceeds to share the project with future students studying the work in question; and make the wiki available as an open educational resource to students in other locations?

In brief, the worry has less to do with the text of copyright law, which seems to carve a wide swath of fair educational use, and more to do with the ambiguous ways in which this law has been interpreted. Judges sometimes evaluate fair use claims in complex and unpredictable ways, and lawyers are able to inject ambiguity into categories like “educational purposes” & “face-to-face teaching activities.” As a result, almost every point along the chain of technological and individual actions described above is at least capable of being classified as an infringement of copyright, and thus capable of triggering a fine of up to $150,000 for each instance of infringement.

Let’s be optimistic and assume that there’s a 1% chance of a judge finding willful infringement and assessing the full damage award in each instance: that still represents $1500 worth of risk for each action. Is a school likely to assume this kind of liability? Or is the possibility, however remote, of a crippling damages award going to serve as a fairly strong deterrent for any student or educator considering bringing cultural artifacts or experiences into the learning environment?

Many student projects already require the use and integration of copyrighted content, not to mention the frequent back-and-forth distribution of the projects and software containing this content, both for purposes of collaboration and student evaluation. The formalization of a clear and broad fair use interpretation for the classroom context would dispel the institutional fear and uncertainty surrounding these actions, and would free students and teachers to spend more time exploring, understanding, and recontextualizing materials within a newly opened-up educational public domain. It would be faithful to the statutory text of the Copyright Act. And it would permit us, once again, to conceive of fair use “not as a disorderly basket of exceptions to the rules of copyright, nor as a departure from the principles governing that body of law, but rather as a rational, integral part of copyright, whose observance is necessary to achieve the objectives of that law.”

Back in December, when the national broadband plan was still being developed, some of us at the Information Society Project submitted a filing (pdf) to the FCC on the topic of copyright and education. In our filing, we suggested that increased broadband access would transform how education takes place both inside and outside the traditional school environment. We advocated for the creation of a broadly accessible repository of creative works that could be used in the course of education without fear of copyright infringement liability, and we suggested broadening the definition of what activities fall within “the course of education” for purposes of this repository and for the TEACH Act.

On Tuesday of last week, when the FCC released its national broadband plan, I was happy to see a significant amount of space devoted to education. Additionally, the Director of Education for the broadband plan noted that “the work of the team at the Information Society Project at Yale was a critical piece of input for us while developing the plan, on issues of copyright and digital education.” We are proud to have played a role in the development of these national broadband strategies.

Here’s what the National Broadband Plan says on the topic of education and copyright:

New broadband-enabled solutions are transforming how teachers and students use content and media. But copyright law must keep pace as new technologies and media are developed. In part due to a lack of clarity regarding what uses of copyrighted works are permissible, current doctrine may have the effect of limiting beneficial uses of copyrighted material for educational purposes, particularly with respect to digital content and online learning. In addition, it is often difficult to identify rights holders and obtain necessary permissions. As a result, new works and great works alike may be inaccessible to teachers and students. … [List of examples of inaccessible works.] … Penalties for copyright infringement can be substantial, but the boundaries between permissible and impermissible uses of copyrighted works in educational contexts—particularly with respect to digital content and online learning—are not always clear. That produces a chilling effect on teachers, schools, and school districts, which limits the use of cultural works for educational purposes.

Increasing voluntary digital content contributions to education from all sectors can help advance online learning and provide new, more relevant information to students at virtually no cost to content providers. Congress should consider ways for educators to interact with their students using new educational content contributed by the public in the following ways:

Procedurally, some might be wondering why these policy suggestions on education and copyright are relevant to a national broadband strategy. Why shouldn’t the FCC just rely on an “if we build it, they will come” strategy, and let application and content-providers take care of the provision of these higher broadband-related goods?

Well, I’d argue that it’s impossible to assess strategies for increasing broadband growth and penetration without at the same time considering the purposes and the implications of increased broadband access. For instance, a straightforward comparison of the significant costs of increasing rural broadband access with the marginal benefits of connecting a few more communities—without considering the national purposes of education, job growth, security, and health care access—might yield the conclusion that expanding rural broadband access really isn’t worth the investment. But in a country where nearly one hundred million people currently lack broadband access at home, and where there are strong correlations between lack of internet access and lack of economic opportunity, a true consideration of the costs and benefits of Internet access must take these otherwise foregone social and economic opportunities into account.

Perhaps the more fundamental point in weaving these discussions of education into the broadband plan is found in the realization that as faster Internet access comes to schools and communities, a wider array of rich media content and Internet-driven educational applications will come to these schools and communities as well. What does this mean in practice? Rather than having a few centralized rightsholders (textbook publishing companies, content distribution companies with school contracts and licenses, classroom software makers, etc) determine what content will be part of a school’s curriculum, we will likely begin to see schools, teachers, and students making more of these curricular decisions for themselves. Both in the formal classroom context and in the informal extracurricular context, educators and students will increasingly be able to search through the wealth of available applications and content on the Internet and make a choice as to which information is most appropriate to a given assignment or lesson plan.

As the FCC puts it, in a broadband-equipped world,

This examination of information flow fits within an ambitious broadband plan focused on spectrum reallocation, investment in public infrastructure, and more broadly, treating the Internet as *the* crucial communications medium, separate from the one-way medium of broadcasting. But the development of new, interconnected, broadband-dependent education platforms based on improved information flow may be forestalled if the legal status of students’ and educators’ ability to craft, share, transform, and distribute complex creative works remains as unclear as it currently is.

II. Licensing Diversity?

Of course, different people have different ideas about how best to clarify the legal status of educational use and creation of copyrighted works. Timothy Vollmer from Creative Commons objects to the FCC’s suggestion of a new copyright notice that would “allow copyright owners to authorize certain educational uses while reserving their other rights.” See http://creativecommons.org/weblog/entry/21260. Vollmer argues that under the plan’s implementation of a notice whereby rightsholders could authorize free educational use of their content, it will be “difficult to determine what will qualify as ‘educational’ content and use,” and various interoperability problems will arise:

Certainly, Creative Commons has a great deal of experience in designing interoperable licenses, and has made a number of decisions in the past to phase out developing nations and sampling licenses (available here: http://creativecommons.org/retiredlicenses) which represented a more particularized and domain-specific approach to copyright. Indeed, as Vollmer points out, Creative Commons in 2003 considered a proposal to develop an education-only license but ultimately chose not to implement that license.

Yet I’m inclined to defend the rough structure of the FCC’s plan on several grounds. First, a diversity of licensing approaches may not be mechanically desirable, but it is surely inevitable. We have to recognize that a single licensing paradigm granting broad, non-domain-specific use and reuse rights might not make sense in all contexts, particularly in a space where the users themselves (students, educators, etc) might wish to ensure that their creative works do not leak outside the domain of education.

Second, many creators and institutional copyright holders might want to make materials available to students and educators, and the FCC’s recommendation might convince them to share their works with this narrower audience whereas a comparatively more open licensing framework might dissuade them from sharing at all. Perhaps rather than starting from the premise that creative works should be shared only if they can be shared perfectly and universally, we should accept the idea of multiple licensing frameworks that enable maximum content availability in each context—and then work to build a broader system that can cope with this license diversity and make differently licensed works interoperable. This is a necessarily iterative process, but it recognizes the multiplicity of motivations that different creators have for sharing their works, and it takes pragmatic account of the likelihood that a significant number of educational publishers will flip their inventories from closed to open if they can have reasonable assurance that their works will be made freely available only within the context of education. In this respect, the educational right of use notice is analogous to Creative Commons’ non-commercial licenses.

Third, in order to maximize access to the educational content repository created by the educational use notice, the FCC and Congress can employ a hallmark-based approach regarding what constitutes “the course of learning,” and not simply use the indicia associated with formal educational activities as the dispositive criteria for delimiting the educational from the non-educational. The FCC takes an important step in the direction of promoting interactive broadband-based learning where it suggests that Congress update the TEACH Act “to better allow educators and students to use content for educational purposes in distance and online learning environments without prejudicing the other rights of copyright holders.” Perhaps this approach would permit those building online tutorials, educational wiki-style entries, instructional videos, interactive educational software and games, and other online or distance learning materials to draw upon works from the educational repository.

In any case, while the educational use notice might be an important mechanism for clearly identifying freely usable works and thus relieving educators and students of the great uncertainty currently surrounding reuse of copyrighted works, it clearly would not prejudice these same users’ ability to assert fair use or other education-related copyright exceptions with respect to works that did not carry the notice. Similarly, if educational publishers, museums, authors, and other content-holders saw fit to grant even broader use and reuse rights than contained within the educational use notice, they would be free to employ a relevant Creative Commons license to express that intent. The point is that the FCC’s proposed educational use notice will not, in all likelihood, cause any harm to the educational content ecosystem, and in fact may be a quite positive—and strongly iterative and pragmatic—step in the road towards a high-bandwidth educational world where there are few legal barriers to the broad use and development of creative works and applications.

Many commentators have focused on the Broadband Plan’s 100-squared initiative, which states that by 2020, “[a]t least 100 million U.S. homes should have affordable access to actual download speeds of at least 100 megabits per second.” The plan outlines three primary mechanisms for achieving this core goal. First, the plan recommends that the government “should make more spectrum available for existing and new wireless broadband providers in order to foster additional wireless-wireline competition at higher speed tiers.” Specifically, the plan states that the FCC “should make 500 megahertz newly available for broadband use within the next 10 years, of which 300 megahertz between 225 MHz and 3.7 GHz should be made newly available for mobile use within five years,” and 120 megahertz of which should be “reallocate[d] … from the broadcast television (TV) bands.” Second, to ensure that both consumers and administrative agencies have sufficient access to data on broadband quality and competition, the FCC’s broadband plan advocates for the collection of “more detailed and accurate data on actual availability, penetration, prices, churn and bundles offered by broadband service providers to consumers and businesses.” Finally, the plan develops numerous recommendations for the modernization of broadband infrastructure, including a suggestion that federal financing of highway and bridge projects should be “contingent on states and localities allowing joint deployment of conduits by qualified parties” and that Congress “should consider enacting ‘dig once’ legislation applying to all future federally funded projects along rights-of-way.” To fund rural access to broadband services, the plan proposes reforming the $9 billion Universal Service Fund through a transition in focus “from yesterday’s analog technologies to tomorrow’s digital infrastructure.”

Yochai Benkler and others have criticized the plan for not focusing sufficiently on how the government might employ more specific pro-competitive interventions such as open access rules in order to achieve these goals, and for setting speed goals that are too low. While acknowledging the importance of these criticisms and the centrality of the question of how to promote faster and more reliable broadband access, I would like to use this post to focus on a few other of the plan’s hundreds of recommendations.

First, besides spectrum allocation and data collection, the plan makes use of a variety of corollary mechanisms for increasing competition and innovation in the broadband ecosystem. To promote the development of a robust market in set-top devices for accessing video and broadband, the Plan seeks to initiate a proceeding requiring broadcasters to install in subscribers’ homes a simple gateway device whose “sole function should be to bridge the proprietary or unique elements of the Multichannel Video Programming Distributors network (e.g., conditional access, tuning and reception functions) to widely used and accessible, open networking and communications standards.” Standardizing consumer access devices in this manner may be crucial to ensuring that users can transport subscription content and applications across all of the many devices they use to access the Internet, and in guarding against the rise of network-particular devices and a balkanized or splintered broadband ecosystem. The implementation of open standards and protocols also helps address the public choice problem at the heart of broadband video access by ensuring that it’s not just a small number of existing device makers and network providers who can articulate a stake in the future of the interface between television and the Internet.

Second, the plan also explores demand-side barriers to greater broadband adoption. For instance, to ensure that people have the skills to use broadband services, the Plan suggests the launch of “a National Digital Literacy Program that creates a Digital Literacy Corps, increases the capacity of digital literacy partners and creates an Online Digital Literacy Portal.” And the plan admirably develops detailed plans for maximizing the ability of persons with disabilities to take part in the broadband ecosystem.

This exploration of demand-side barriers is related to the final of the Plan’s three major sections, which (in response to the request made by Congress in the American Recovery and Reinvestment Act of 2009) seeks to explore how the implementation of broadband access will affect the development of and access to health care, education, energy and the environment, economic opportunity, government performance, civic engagement, and public safety services. It’s these “national purposes”—and particularly on the question of how broadband relates to education—that I’d like to explore in a second post.

Alien Infrastructures: Learning from Unusual Arrangements of Information and Communication Technology

Christian Sandvig

Pragmatically minded researchers often use “best practices” comparisons to study the design and organization of technological systems such as telephone networks, broadband providers, and platforms for computer-supported cooperative work.  While best practices are often useful, in complex interdependent systems that depend heavily on their context, dramatic and inspirational differences may be just as valuable as the imitation of commonalities.  This argues for research on best practices and also on strange practices.  In this research project we compile a literature of cases that are recognizable as information and communication systems, but due to one (or more) severe constraint they have evolved in a way that is noticeably strange.  By focusing on these constraints we develop a database of difference that includes shoe computers, pigeon networks, modern long-distance atmospheric optical networks, and Internet services optimized for semi-nomadic reindeer herders.  We use this corpus to assess our own expectations for technological systems of information and communication, and reflect on what a standpoint theory of infrastructure might look like.

Infrastructures of Imageability

Susanne Seitinger

Increasingly, urban environments are brightly illuminated by a combination of display and lighting technologies at nighttime. These systems fulfill different functions and are rarely designed together to enable a holistic lighting environment. Meanwhile, advances in LED technology and the miniaturization of embedded electronics are converging towards new types of addressable infrastructures that both provide light and convey content. Rather than understanding these systems separately, I suggest blurring the boundary between various “infrastructures of imageability” to rethink their social and aesthetic role in the city. I revisit the socio-technical origins of lighting and display to suggest some possible directions for alternative narratives of urban illumination.

Rural Development through Village Knowledge Centers in India

Ramesh Subramanian

For the past several years, India has experimented with extending the reach of ICTs to rural areas with a view to bringing development to these areas. This paper examines the implementation of Village knowledge Centers in rural Southern India. I first describe the developmental disparity that exists between urban and rural areas in India, and justify the implementation of rural projects that extend ICTs to rural areas. I examine prior work and then describe in detail the Village knowledge Center Project conceived, developed and implemented by the M.S. Swaminathan Research Foundation, a NGO located in Chennai, India. I then describe my field visits and observations and conclude with an analysis of the role and benefits of such projects, unresolved questions and issues, and possible directions for future work.

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Christian Sandvig (Ph.D Stanford) is an Academic Fellow at the Berkman Center for Internet and Society at Harvard University as well as an Associate Professor in Communication, Media, and the Coordinated Science Laboratory at the University of Illinois at Urbana-Champaign.

Susanne Seitinger (MCP MIT, BA Princeton) is a Ph.D. student with the Smart Cities group at the MIT Media Lab. Her dissertation –Liberated Pixels: Alternative Narratives for Lighting Future Cities– explores the aesthetic and interactive potentials for future lighting and display infrastructures.

Ramesh Subramanian (PhD, MBA Rutgers) is a Visiting Fellow at the Information Society Project, Yale Law School as well as the Gabriel Ferrucci Professor of Information Systems at Quinnipiac University. His research interests focus on the intersection of IT and technology policy in developing countries, Security, Law, & Cross-cultural issues.

The Harvard-MIT-Yale Cyberscholar Working Group features ongoing research concerning the digital age. Meeting alternatively at Harvard, MIT, and Yale, the group aims to share and enrich knowledge among rising scholars. Sessions are designed to advance research through cross-disciplinary conversation.

Law.gov is an attempt to create a distributed registry and repository of primary legal materials. Carl is participating in a number of workshops this winter and spring at law schools, NGOs, courts, and governmental agencies; his goal is to figure out what the main obstacles and objections will be in promoting broad legal access through a repository such as law.gov.

At our NYLS panel, Helen, who has written a great new book called Privacy in Context, wondered how public legal materials changed when they were taken out of dusty physical court archives and released online. She illustrated the privacy problems with a story about a county clerk in Ohio who put all of his town’s legal records online, including criminal and divorce records, and encountered a fair amount of pushback in response from townsfolk who were worried about the resulting potential intrusion into their lives from snooping neighbors and curious officials. Helen raised the question whether placing legal information on the Internet merely revealed the potential privacy problems that up until now have been practically obscured through physical access restrictions, or whether the online move fundamentally transforms public information and leads to a whole new set of privacy concerns.

During my talk, I mentioned my sympathy to the stronger (latter) notion of Helen’s that information leads a very different life once it’s released online. danah boyd, for one, has carefully catalogued and beautifully narrated the numerous advantages and problems of the persistence, searchability, replicability, and aggregation of online information. And it’s very much an open question as to where the norms will come from that will resolve these privacy and reputational problems—particularly as traditional information fiduciaries and duties of professional confidentiality are replaced by more mechanistic data-aggregation and distribution services. But while I would definitely want any release of governmental information to take account of the unique characteristics of online information—both from the perspective of the agencies/courts releasing the legal datasets and from the perspective of the decentralized third parties building apps, interfaces, data-harvesting tools, and search engines on top of that information—I wouldn’t necessarily want to let this become an argument against releasing onto the open Internet legal information-sets that Lexis and Westlaw have *already* digitized and made available to anyone who can pay for access. Beyond the limits on downstream innovation that would be implied by limiting the organization of legal information and the accumulation of legal data to a couple of existing providers, such a strong imbalance of access to the fundamental raw materials and organizational tools of legal communication should be troubling to any society that considers itself a nation of laws. It seems inevitable that coming up with the “rough consensus and running code” around which different levels and branches of the government can congregate (and interface with users) will require broadening the conversation beyond archivists and private legal information providers to include attorneys, judges, legislators, agency regulators, computer scientists, and other non-administrative users of laws. This is, I think, exactly what the law.gov movement is trying to accomplish.

My other contributions to the conversation at NYLS were mainly along the lines of figuring out (a) what was unique about legal materials as opposed to other kinds of archived works and (b) how to design archives and interventions that accounted for the unique linguistic economies of legal works. That is, how best can one develop metadata and standards that identify the hierarchical and jurisdictional interoperability (or lack thereof) of caselaw, statutes, and regulations? I also brought up a variety of distinctions between transparency and access, direct vs. indirect court functions, and public vs. private archivists, and examined how our evaluations of these distinctions would affect efforts at broadening access to law. I’ve put up my slides for anyone who is interested, and am glad to talk with anyone who’s interested in continuing these conversations.

Thanks to the Yale ISP and to NYLS for convening this fascinating set of initial discussions.

All events are free and open to the public and will take place at Yale Law School.

• Free Press (comment)
• Center for Democracy & Technology (comment)
• Electronic Frontier Foundation (comment)
  • argues that the FCC lacks any statutory foundation for its rulemaking and seeks to distinguish reasonable network management from efforts to block copyright infringement.
• Public Knowledge, New America Foundation, Media Access Project, Consumers Union, & Center for Media Justice (comment)
• Future of Privacy Forum (comment)

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• Verizon & Verizon Wireless (comment)
• AT&T (comment)
  • argues that conversion of broadband networks into “dumb pipes” is inconsistent with history of Internet engineering and in fact would render Internet less neutral.
• Time Warner Cable (comment)
• Telefónica, S.A. Spain (comment)
• Comcast (comment)
• Sprint-Nextel (comment)
• Verizon + Google joint submission (comment)

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• Google (comment)
• Skype (comment)
• Vonage (comment)
• Open Internet Coalition (comment)

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• Global Crossing (comment)
• Fiber-to-the-Home Council (comment)
  • seeks to define “reasonable network management” from perspective of several wireline network engineers.
• Cisco (comment)
  • advocates for cautious case-by-case approach to adjudication, consistent with Comcast adjudication based on Internet Policy Statement, rather than codification of bright-line rules which might not be adaptable to changing business/technology environment.

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• RIAA (comment)
• MPAA (comment)
• Independent Film & Television Alliance (comment)
• Online Game Developers (meeting)
• Sony (comment)

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• U.S. Chamber of Commerce (comment)
• Communication Workers of America (comment)
• Christian Coalition (statement)

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• Timothy Lee (comment)
• Barbara Esbin (comment)
• Tim Wu (comment)
  • contextualizes net neutrality by examining historical regulatory perspective towards “close cooperation between America’s most powerful firms and its most powerful information and transportation networks.”

The right to take part in cultural life, to share in scientific progress, the rights to education, health care, and food: all are impacted by and impact upon policies and movements around intellectual property and Internet freedom.

This two-day conference seeks to lay the groundwork – conceptual and strategic – to build bridges between the A2K and human rights communities pursuing common goals of promoting greater access to knowledge, culture, technology and tools for innovation worldwide.

The conference will feature a diverse range of academics and practitioners in panels on topics including Perspectives on Access to Knowledge and Human Rights, Technologies of Dissent, The Right To Health, Digital Education, Freedom to Innovate, The Right to Science and Culture, Information Ethics, The Right to Development, Accessibility and the Right to Read, and Rights-Based Strategies for Advancing Access to Knowledge.

For more information, schedule, speakers list, program, and to register, please visit: http://www.law.yale.edu/intellectuallife/a2k4.htm.

The conference is being hosted by the Yale Information Society Project, an intellectual center examining the implications of the Internet and new information technologies for law and society. Organizing partners include the following:

3D: Trade, Human Rights, Equitable Economy

AAAS Science and Human Rights Program

Access to Knowledge for Development (A2K4D) Center, Department of Economics, School of Business, American University in Cairo

A2K Research Program at the Fundação Getúlio Vargas School of Law in Sao Paulo

Association for Progressive Communications

The Berkman Center for Internet and Society at Harvard University

Centre for Technology and Society at the Fundação Getúlio Vargas School of Law in Rio de Janeiro

Centro de Estúdios Interdisciplinários de Derecho Industrial and Económico

Consumers International

Electronic Frontier Foundation

Human Rights USA

Institute for Information Law and Policy at New York Law School

Intellectual Property Watch

International Center for Trade and Sustainable Development

IQSensato

Knowledge Ecology International

Orville H. Schell, Jr. Center for International Human Rights at Yale Law School

UCT Intellectual Property Law and Policy Research

University of Wisconsin-Milwaukee School of Information Studies