Killing technological generativity

If there is one way to kill technology generativity, lock the technology up to such an extent that you can’t even repair it, let alone hack at it to do something new and innovative.

I’ve written about generativity before (in the context of open textbooks). Briefly, generativity is the capacity a system has to be changed and modified by someone other than the original developer to do something new and interesting that the original developer may never have imagined.

As I read this Motherboard article How to Fix Everything, it hit me again just how difficult technology companies make it for their systems to be repairable, much less generative.

“Normally if I purchase a hammer, if the head of the hammer falls off, I’m allowed to repair it and fix it. I can use the hammer again,” Charles Duan, director of Public Knowledge’s Patent Reform Project, told me. “For a lot of these newer devices, manufacturers want to say ‘We want to be the only ones to repair it’ because they make more profits off the repairs. They’ve found lots and lots of way to do this. Intellectual property law, contracts, end user license agreements, lots and lots of ways to try to make sure you can’t do what you want with your stuff.”

A few weeks ago I came across the story of farmer Matt Reimer and his brilliant robotic hack that turned an old tractor into a remote controlled tractor, saving him time, money, and from sending his old tractor to the landfill. If his tractor was a John Deere tractor, he would not have been able to make these modifications as John Deere makes it impossible to tinker with their tractors.

John Deere told the copyright office that allowing farmers and mechanics to repair their own tractors would “make it possible for pirates, third-party developers, and less innovative competitors to free-ride off the creativity, unique expression and ingenuity of vehicle software.”

Think about that for a moment – a farmer not allowed to fix his own equipment. If you are from a farming community, you know how ludicrous that sounds.

But beyond the silliness of not being able to repair your own stuff (let alone the terrible environmental consequences of forcing people who use their products to live in an even more disposable society), corporations that lock up their technology send a clear message that the only way innovation can happen is within their narrow confines and vision. It limits the scope of innovation to only what a corporation wants, and only in the ways that serve the corporation.

Because we should all have the ability to turn pop bottles into lights.


On using OpenEd: an opportunity

Update:  On June 8, 2015.  Some positive and encouraging news  from the University of Guelph. From the statement on their website they say, “it is evident that the various meanings of the term ‘OpenEd’ will be challenged to co-exist and therefore, the University of Guelph is taking steps to release the official mark in its entirety, although this will make the mark available for others to attempt to make it their official mark or to apply to register it as a traditional trade-mark.”

For the past 6 months my organization BCcampus has been in a dispute with the University of Guelph over our use of this:

BCcampus Open Education logo

Current BCcampus Open Education logo

Like many of you, we have always used the term OpenEd as a short form way of saying Open Education. It’s a term that is familiar to anyone working in the field of open education. In our community, many of us host forums and events using the term OpenEd. Around the world, people write blog posts, create websites, and host conferences using the term OpenEd. Our global community uses the term OpenEd interchangeably with Open Education to mean a series of educational practices and processes built on a foundation of collaboration and sharing.

BCcampus has been working with higher education institutions in British Columbia for over a decade on open education initiatives, so when it came time to redesign our main open education website (, it was only natural that we would gravitate to the term that many people in BC and beyond associate with us: OpenEd. Our graphic designer, Barb Murphy, developed this logo in the fall of 2013 and, at the end of November, 2013, we launched our new website with our new OpenEd logo. We thought nothing of it and went along our merry way chugging along on the BC Open Textbook Project.

Little did we know that, on December 18, 2013, the University of Guelph trademarked OpenEd.

Last fall, we received an email from UGuelph asking us to stop using OpenEd. At first, we thought it was a joke. Someone trademarking OpenEd? Anyone involved in the open education community would realize how ridiculous that sounds. But after numerous emails, it became apparent that they were, indeed, serious about wanting us to stop using OpenEd.

We went back and forth with Guelph until it became apparent that they were not going to give up on their trademark claim, but for the cost of their legal paperwork to write up a permission contract ( $500), they would allow us to use the term in perpetuity to describe any open education activities in BC that we were associated with.

We considered the offer, and thought it a fair request from Guelph. They didn’t ask us for a licensing fee. The would give us the rights to use the mark for basically the cost of their lawyers writing up the contract. $500 is not a lot of money.

But then we thought about the rest of the open education community in Canada and how they will not be able to use the term unless they negotiate with Guelph as well. And we thought that, if we agreed to the terms, we would be legitimizing their claim to a term that runs against the very ethos of what we practice. We decided we couldn’t do it.

Then we thought perhaps we should fight and win the mark back? Wrestle the trademark from Guelph and then turn around and release the trademark with a CC0 license for the entire community to use (even Guelph). We thought we could prove our prior use, not only based on the fact that we started using the logo on our new website weeks before their claim was finalized in December of 2013, but going back even further to the 2009 OpenEd conference BCcampus sponsored at UBC in Vancouver where a wordmark very similar to what Guelph has trademarked was first used.

The 2009 Open Education Conference Logo. The conference was at UBC and sponsored by BCcampus

The 2009 Open Education Conference Logo. The conference was at UBC and sponsored by BCcampus

But after speaking with a lawyer, we discovered that the best we could do is win prior use rights for BCcampus, which would be good for BCcampus, but lousy for the entire open education community.

So in the end,  we have decided to change. We are currently working on dropping the term OpenEd from our logo and replacing it with the words Open Education.

This will not be cheap for us. The redesign is simple, but that BCcampus OpenEd mark is used in many places. Most notably, we now have to redo the covers for close to 90 textbooks in our open textbook collection as that OpenEd mark appears on the cover of every book.

Each cover on every open textbook in our collection needs to be changed

Each cover on every open textbook in our collection needs to be changed

And then once the cover is changed, we need to update 3 different websites where that cover might be used. Plus, we have created a ton of additional material that has the mark OpenEd on it that will now need to be scrapped.

In my mind, however, this is the right move. If BCcampus pays even a modest fee, then we accept that it is ok to copyright and trademark something that, I believe, should rightly belong to the community. Given my own personal values around openness and sharing of resources, it’s a bargain I did not want to make. And it doesn’t make sense to fight a battle that will win a victory for BCcampus, but not for the wider open education community. It would feel less than hollow.

So, we change.

The opportunity. If you are from Guelph and are reading this, there is another alternative. You have the trademark to the OpenEd mark. You control the IP. You can always choose to release the mark with a Creative Commons license and show the wider open education community that you understand the community and the open values that drive our work in education everyday. You can be a leader here by taking the simple act of licensing your mark with a CC license and releasing it to the community for everyone to use.

Update June2, 2015:  Trademarks and copyright are different ways to protect intellectual property, and the suggestion I made in the post is probably too simplistic a wish as CC licenses are meant to alleviate copyright, not trademark, restrictions (h/t to David Wiley for pointing me to this distinction).  However, it appears that the two can co-exist and you can openly license and protect trademarks at the same time, as this document from Creative Commons on trademarks & copyright suggests.


The burden Canadian Copyright law is placing on higher ed institutions

I attended the annual BCNet conference in Vancouver yesterday where I was presenting on the BC Open Textbook Project (my slides).

While I was there I sat in on a session title the Copyright Modernization Act presented by Larry Carson, Associate Director, Information Security Management (UBC), Eric van Wiltenburg, Manager, Information Security Office (UVic), Dave Kubert IT Security Officer (UNBC), and Michal Jaworski, Legal Counsel (UBC). The session focused on how higher ed institutions have been responding to a new clause in the Canadian copyright act that came into effect in January of this year, the “Notice and Notice” provision .

In essence, the notice and notice provision now gives copyright holders a mechanism to track down suspected copyright infringement by putting the onus on ISP’s and other intermediaries (like post-secondary institutions) to contact suspected copyright offenders. Barry Sookman has a nice, succinct post describing the new regulation.

The regime permits copyright owners to send notices to internet service providers and other internet intermediaries claiming infringement of copyright. The notices must be passed on by these service providers to their users. Because there are no regulations, the notices must be processed and passed on by the internet intermediaries without any fees payable by copyright owners.

As illustrated in the session, this new provision is putting a large burden onto the shoulders of institutions that now have to track and contact potential copyright offenders on their network.

All the institutions made it clear that the only information that copyright holders have to go on is an IP address. How the copyright holders are obtaining the potential infringing IP addresses is unclear to me, but it is happening. Which explains to me why this has become a security issue at most institutions since they are often the first point of contact when any odd IP related activity comes up.

Once the copyright holder contacts the institution with an IP address that they alleged is being used to illegally download their material, the institution then has an obligation to match the IP with a person and send that person a notice saying…well, that is one of the first problems institutions are struggling with. What to actually say in their notice. Institutions are grappling with this. Is it simply a notice to the alleged offender that this activity has been noticed on the network, or does the notice go further and ask them to stop? Institutions are (rightly so) hesitant to become the police and be forced into a role where they then become the enforcers of the legislation.

This process is placing a huge administrative burden on institutions as they have been spending a large amount of time and resources dealing with these notices. One of the panel participants reported their institution was receiving up to 10 notices per day, with the others stating that they were dealing with hundreds of these notices each month. Hence the desire to come up with technical processes to automate the routine.

Specifically, the administrative burden looks like this.

First, when the institution receives a notice from a copyright holder, the notice may not come from the actual copyright holder, but instead from a third party contracted by the copyright holder to act on their behalf. So the first step for the institution is to try and figure out if the notice request they receive is, in fact, legitimate. And, early on when the regulation came into effect, there were many non-legitimate requests being sent to Canadians demanding that they pay a fine for alleged copyright infringement (and who knows how many Canadians actually did this when there was no need to). So, the first task is figuring out who is actually contacting them and whether they have the authority to act on behalf of the actual copyright holder.

Second, the institution then needs to match the IP address with a person to send the notice to. Not an easy task, especially if you are using NAT. Another time consuming task when you are dealing with hundreds of requests a month.

There is a big stick for institutions that don’t forward notices to an offending party. If an institution fails to forward a request, then the institution can be held liable for the alleged copyright infringement even if there is no further proof that copyright infringement has occurred. This put an incredible onus on the institution to comply with forwarding notices as it presumes their guilt that a copyright infringement has occurred, and makes the institution responsible for the presumed offense.

Finally (at the risk of burying the lede here, depending on what role you have at an institution), one of the more ridiculous aspects of the “notice and notice” system is that faculty and academic researchers have been receiving these notices for posting their own journal articles and published research online. Imagine posting your journal article on your institutional website (or, perhaps on an open course where you might want your students to have access to the research for teaching and learning purposes) and you receive a “notice” from your own institution saying that you have been reported as a potential copyright thief? I can’t imagine that is a good feeling. There seems to me to be a real risk that this type of notification from your own institution, regardless of how benign or moderate the wording may be, could lead to internal divisiveness between faculty and administration (a point that was touched on briefly in the session).

Now, there is always the new fair dealing clause that you could use in your defense. But the onus is then on you to defend your use of your own work in response to the notice. There again is a presumption of guilt for a perfectly legitimate use of the material (and if you are a faculty or researcher where this type of scenario has happened to you, I would love to hear whether this paragraph rings true to with your own experience).

Using technology to fix bad legislation, while understandable given the circumstances, does feel like a coping mechanism; one that is putting a large administrative cost onto the backs of the institutions. It forces them to act as an intermediary on hundreds of alleged infractions or else risk being fined over suspected infringements. The legislation also casts such a wide net that legitimate uses of copyright material are being tagged as malicious, forcing faculty and researchers to prove that their use is legitimate. All this not only sucks up time and resources, but puts the institution in the position of being the one to cast a cold copyright chill down the backs of its staff, students and faculty.


What we can learn about copyright from fashionistas

I have a whole new respect for the fashion industry after viewing this brilliant TED talk from Johanna Blakely called “Lessons from fashion’s free culture.”

In a nutshell, Blakely’s argument is that an entire creative ecosystem and industry has developed around fashion because fashion cannot be copyright. Indeed, without the ability for one designer to copy (or be “inspired”) by the work of another, there would be no fashion industry as we know it today.

Under the law, fashion designs are exempt from copyright. You cannot copyright a design because lawmakers view clothing as a “utilitarian” product. The common good of clothing humanity overrode the rights of fashion designers to profit from their clothing. But because there is no copyright, designers have been able to freely elevate that utilitarian product (clothing)  into something that is now considered art.

It is a compelling argument in support of copying as a model of ownership that encourages innovation as copying allows for the the free flow of ideas, and this free flow of ideas drives innovation. It forces those who are being copied to continually “up their game” and create unique designs. Copying forces innovation and creativity.

But this lack of copyright isn’t limited to fashion. Cars, food, furniture – these are all utilitarian items that cannot be controlled by copyright (which begs the question in my mind, when does something like a smartphone or computing device become a utilitarian device so that the silly litigation wars from Apple and Samsung?)


Does section 30 of Bill C-11 really mean we have to destroy online lessons 30 days after a course ends?

I’m no copyright lawyer, so I am throwing this out in hopes that others can help me understand one of the new clauses of Canada’s new copyright law, Bill C-11.

I was reading an excellent summary from Contact North on the implications for online and distance learning of Bill C-11 (HT to @veletsianos via Tony Bates blog for the lead), and, while the news seems quite good for educators in general, there was one clause that made me start seeking out more info.

The report notes that Bill C-11 has a distance learning provision, but (emphasis mine):

The implementation of a distance learning provision, though use of the exception features significant restrictions that require the destruction of lessons at the conclusion of the course.

Hmmm. Destruction of lessons at the conclusion of the course. Sounds ominous.

So, I went to the source (excuse the legalese here) and honed in on section 30, which begins by defining a lesson, which is really anything that uses content  under the newly expanded fair use clause of Bill C-11

 30.01 (1) For the purposes of this section, “lesson” means a lesson, test or examination, or part of one, in which, or during the course of which, an act is done in respect of a work or other subject-matter by an educational institution or a person acting under its authority that would otherwise be an infringement of copyright but is permitted under a limitation or exception under this Act.

The section goes on to state that a student can create a copy of that lesson, but the student has to destroy it 30 days after the course closes:

(5) It is not an infringement of copyright for a student who has received a lesson by means of communication by telecommunication under paragraph (3)(a) to reproduce the lesson in order to be able to listen to or view it at a more convenient time. However, the student shall destroy the reproduction within 30 days after the day on which the students who are enrolled in the course to which the lesson relates have received their final course evaluations.

Okay, fair enough, I guess. But the kicker is the next section, which states:

(6) The educational institution and any person acting under its authority, except a student, shall
(a) destroy any fixation of the lesson within 30 days after the day on which the students who are enrolled in the course to which the lesson relates have received their final course evaluations;

So, if I am reading this correctly, an educator who teaches an online course and who uses copyrighted content under the newly expanded definition of fair dealing (which is quite broad) will have to destroy that course material 30 days after the course ends? Am I reading this correctly?



Google Image Search adds license filter

Google announced a new feature for Image Search today that should make it easier for you to find, modify and reuse images from across the web.

Google Image Search now has a license filter which will allow you to filter out images based on the license type. This makes it much easier to find public domain or Creative Commons licensed images to reuse or modify.

To access the license filter you have to go to the Advanced Image Search options. At the bottom of the page you will see an option called usage rights with a dropdown list with the options to return images labelled for reuse, labelled for commercial reuse, labelled for reuse and modification and labelled for commercial reuse and modification.

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Adobe to add DRM to Flash video?

I imagine video remixers around the world are holding their collective breath today in hopes that Adobe will not go ahead and include Digital Rights Management (DRM) encryption in the new version of Flash servers.

One of the great byproducts of the emergence of powerful, free and easy to use media production tools like Jumpcut, iMovie and Windows Movie Maker is the emergence of the video mashup. Someone posts a video, perhaps to a video sharing site like YouTube, DailyMotion or a similar site, which then gets captured by someone else, remixed and recut to create something new.

Flash video is one of the technologies that is making this easy to do. The vast majority of video sharing sites are using this relatively new video protocol which, up until now, has been DRM free, unlike many other streaming media technologies like Real and Windows Media which have had DRM encryption fro quite some time. Ironically, the new version of Real Player includes a video download tool that allows you to download and save Flash video, but not Real video. Go figure.

Remixing is nothing new. But in a digital age, video remixing is becoming a powerful tool of both expression and media literacy. Seth Schoen at the Electronic Frontier Foundation makes a great point in his article:

Before we understand how to read media messages, we must first learn how to speak their language — and we learn that language by playing with and remixing the efforts of others. DRM, by restricting the remixing of Flash videos, stands to bankrupt a rich store of educational value by foreclosing the ability of students and teachers to “echo others” by remixing videos posted online.

There is another angle to this story. The fact that Adobe can use this new tool to effectively lock out any client side player except for an Adobe player. I don’t imagine Adobe would be so stupid as to shoot themselves in the foot and do this. One of the major reasons we are currently looking at purchasing a Flash server at our institution is precisely because it is much more platform neutral than Real, Windows Media or Quicktime. But corporations have done sillier things in the past in an attempt to control a market.

This will probably be a minor annoyance in the future as workarounds and hacks will become available should Adobe follow through with the plan to do this. But still it puts a hurdle in the way of remixers looking to build upon previous works to create new forms of art and express themselves in new and interesting ways.


A Fair(y) Use Tale

This is a short film put together by some folks at Stanford that I thought you might appreciate. It’s about 10 minutes long, but it is fantastically well done.

Basically, to illustrate copyright laws in the US, these filmmakers have edited a whack of animated Disney movies together to create a new work – a documentary about copyright.

Even if you don’t have any interest in copyright law, the editing alone is wonderful.

Hmm, wonder what Disney is going to say about this? How far will fair use and satire carry these guys against Mickey?