Monthly Archive for August, 2008

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Major (US) Court Victory for Open Licenses

As reported on Ars Technica, a recent United States Court of Appeals for the Federal Circuit decision has given some legal teeth to open licenses:

The lower court had found that redistributing software in violation of the terms of a free software license could constitute a breach of contract, but was not copyright infringement. The difference matters because copyright law affords much stronger remedies against infringement than does contract law. If allowed to stand, the decision could have neutered popular copyleft licenses such as the GPL and Creative Commons licenses. The district court decision was overturned on Wednesday by the United States Court of Appeals for the Federal Circuit.

Maybe this will finally quiet the “confused” people out there who think that those of us who support open licenses are anti-copyright. As pointed out by this case, open licenses depend heavily on copyright law to provide “incentives” for users to comply with the license and (as a last resort) enforcement mechanisms.

On the possibility of openly publishing course materials at BYU

A good friend suggested to me yesterday that openly publishing my course materials may not be possible at BYU due to the Brigham Young University Intellectual Property Policy. Curious that such a restriction on my ability to openly share my course materials might exist, I explored the policy in more detail. Here’s what I found.

1. Course materials are Creative Works as defined by the IPP:

Intellectual properties are divided into two categories: technical works and creative works. Technical works include intellectual properties that are generally of a scientific, engineering, or technical nature—such as patentable or unpatentable inventions, devices, machines, processes, methods, and compositions; computer software; and university collections. Creative works include all intellectual properties not covered in technical works that are of an artistic, scholarly, instructional, assessment, or entertainment nature. Examples of creative works might include creative productions, such as works of art or design; musical scores; books, poems, and other types of scholarly or creative writings; films; video and audio recordings; and instructional materials, such as textbooks and multimedia programs. All computer software is included in technical works except that which is clearly developed for entertainment or for instructional purposes, e.g., electronic textbooks and textbook supplements, classroom and self-study tutorials. (Section I Para 1)

2. The university does not claim ownership of Creative Works when these are created with only nominal use of university resources.

The university retains ownership rights to all technical works but relinquishes ownership rights to the developer(s) of creative works when “nominal” use of university resources are involved in the production of the intellectual property. When “substantial” university resources are used in the production of creative works, however, the university will retain its ownership position, and income from the project will be shared with the developers. (Section IV Para 2)

3. “Nominal Use” of university resources is defined as things done within the normal scope of your employment at BYU.

Nominal use of university resources is use that is within the required activity of one’s appointment at BYU…. maintaining assigned levels of teaching, scholarship, and citizenship activities, so that anticipated performance in these areas is at the expected level. (Section IV.b Paras 1-2)

4. Course materials are explicitly mentioned in the Nominal Use section of the IPP.

Course or instructional materials may not be generated with the use of support units financed by the university (e.g., the Center for Instructional Design [note from David: this is now called the Center for Teaching and Learning]). Courses or instructional materials generated in the normal course of teaching, without such support, are allowed. (Section IV.b Para 3)

Conclusion: As long as I produce course materials myself, without additional funding or support from the university, courses and instructional materials I produce to support my own courses are created with only nominal use of university resources, and the university does not claim ownership. Therefore, as the rights holder, I will be able to continue openly licensing the materials I use in teaching my courses.

Hooray!

Open Education 2008 Registration is Open!

Open Education 2008 Conference registration is now open! This year’s event will be special in a number of ways (more on this soon!), so please come join us for a fabulous event dedicated to open education and – this year – the ten year anniversary of open content!

The future of open source (and open education?)

People love to analogize / equate open education to open source. There are huge problems with this way of thinking… The one that comes first to mind is that many changes to an open source program can be empirically tested to objectively determine whether or not they improve the program (by increasing its speed, decreasing its file size, etc.) at almost no cost (by recompiling the programs and running automated tests), but many changes to an open educational resource cannot be judged objectively (did changing these words really engage learners more? do these new examples communicate the educational content better?) and even when they can be meaningfully tested, this can only happen at rather high costs in time and resources (e.g., setting up and running usability tests or “horse race” research studies involving enough students to produce statistically meaningful results). Of course, this one difference in the community’s ability to judge whether adaptations should be kept or rejected makes a mountain of difference in our ability to collaboratively develop educational resources rationally and objectively. I could go on about the differences, but they aren’t actually the point of the post.

The point of the post is that, because it can be interesting to think about open education in terms of open source (if you’re careful not to push the analogy too far), Tim O’Reilly’s latest bit of writing called Open Source and Cloud Computing about very near future problems for the open source movement should be required reading for open educators. We will face similar problems in the not-too-distant future, and we should be thinking about them now.

As outlined above, I don’t believe we’ve figured out what kinds of licenses will allow forking of Web 2.0 and cloud applications, especially because the lock-in provided by many of these applications is given by their data rather than their code….

But even open data is fundamentally challenged by the idea of utility computing in the cloud. Jesse Vincent, the guy who’s brought out some of the best hacker t-shirts ever (as well as RT) put it succinctly: “Web 2.0 is digital sharecropping.” (Googling, I discover that Nick Carr seems to have coined this meme back in 2006!) If this is true of many Web 2.0 success stories, it’s even more true of cloud computing as infrastructure. I’m ever mindful of Microsoft Windows Live VP Debra Chrapaty’s dictum that “In the future, being a developer on someone’s platform will mean being hosted on their infrastructure.” The New York Times dubbed bandwidth providers OPEC 2.0. How much more will that become true of cloud computing platforms?

That’s why I’m interested in peer-to-peer approaches to delivering internet applications. Jesse Vincent’s talk, Prophet: Your Path Out of the Cloud describes a system for federated sync; Evan Prodromou’s Open Source Microblogging describes identi.ca, a federated open source approach to lifestreaming applications.

We can talk all we like about open data and open services, but frankly, it’s important to realize just how much of what is possible is dictated by the architecture of the systems we use.

There are a number of ways to understand Tim’s point in the context of open education. If we consider the architecture of higher education, for example, the meaning of “lock-in by data” becomes clear. We can easily reconsider “social network fatigue” (which prevents you from joining too many social networks because you can’t stand to type in all your basic personal details for the nth time) in terms of “gen ed fatigue” by which students are prevented from moving from one university to another because they know credits won’t transfer and they can’t bear the thought of taking World Civilization again. A student’s own data – course grades and accumulated credits that belong to them – are not really any more portable across universities than your Facebook profile is across social networking services. Note that this is not a technical problem, it is an policy problem purposely designed to lock a student into a university. While the Bologna Process has certainly been criticized, it is attempting to make it possible for students to move freely between universities. And as my friend Al is so fond of asking, why shouldn’t a student be able to do their physics at UC, their engineering at MIT, their cyberlaw at Stanford, and their religion courses at BYU?

Of course, saying that LMS vendors try to lock our data into their systems would be another reading of this part of Tim’s article, but one that is too obvious because it is too technical; this is more of an open source problem than an open education problem.

Careful reading and thought will show that Tim’s insightful analysis does indeed point toward many of the problems open education will have to face in the near future. Just please don’t take the open source / open education analogy too far. :)




Creative Commons Attribution 3.0 United States
This work by David Wiley is licensed under a Creative Commons Attribution 3.0 United States.