Me: Would you be willing to share the lesson plans and other materials you create with others for them to reuse?

Teacher: Sure!

Me: Great! The best way to do that is by applying this Creative Commons license to your work.

Teacher: A copyright license?

Me: Right. So that others know for certain that they’re allowed to reuse, revise, and redistribute your work.

Teacher: I don’t think I can make copyright assignments. I’m happy to share informally, but when it comes to formal sharing, I don’t know who actually holds the copyright in the materials I create for use in my class. Sorry.

After hearing this a few times I dug into the Utah Administrative Rules to answer the question of who owns the work teachers produce for their own use in their own classrooms. The answer? The issue was not addressed anywhere in the UAR. A call to the State Superintendent’s office and some research by their staff confirmed that there was no explicit statement about who owned the teachers’ work. Consequently, no one knew who could share what with whom.

So, last summer I testified at a meeting of the Interim Education Committee and had a longer conversation with our State Superintendent and one of his staff asking for a new Administrative Rule, explicitly stating that teachers can in fact share their work under open licenses. State Superintendent Larry Shumway then grabbed a hold of the idea and worked on making it happen.

The result is the shiny new Rule R277-111: Sharing of Curriculum Materials by Public School Educators, which includes the following language:

The purpose of this rule is to provide information and assurance to public school educators about sharing materials created or developed by educators primarily for use in their own classes or assignments. The intent of this rule is to allow or encourage educators to use valuable time and resources to improve instruction and instructional practices with assistance from appropriate materials developed by other educators….

Utah educators may share materials under a Creative Commons License and shall be personally responsible for understanding and satisfying the requirements of a Creative Commons License…

The presumption of this rule is that materials may be shared. The presumption is that Utah educators need not seek permission from their employers to share personally-developed materials.

I haven’t done an in-depth review of state policies, but I believe that Utah is one of the first (if not the very first) to formally adopt language (a) saying that teachers are allowed or encouraged to share their educational materials or (b) actually mentioning Creative Commons by name. Many thanks to Superintendent Shumway and his staff for making this happen!

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.

From the transcript of Jimmy’s announcement: “We’re going to change the GFDL in such a way that Wikipedia will be able to become licensed under the Creative Commons Attribution-ShareAlike license.” So they’re changing the GFDL itself. Perhaps this will mean universal compatability between GFDL and CC-By-SA?

Wow. I’m all but speechless.

Even though I can’t understand what he’s been saying to me for the last year, he still pushes me around mentally and makes me think and write. You simply have to love someone who does that for you. Commenting on Jennifer’s blog, Stephen asks:

Why does David Wiley think that open education is commercial education? It is not enough to say that the licenses are incompatible – this is only a problem for commercial exploiters of free content.

This comment is completely incomprehensible to me. When a group of learners who are in no way affiliated with a company or any other for-profit organization are prevented from remixing OERs by the copyleft provisions in the GFDL and the CC-By-SA or the CC-By-NC-SA, how is it that this is only a problem for commercial exploiters of open content? Stephen, please explain to me! I really do want to understand! Are you saying it’s ok for these learners to violate the license terms, because no one will care since they’re not making any money? Commercial or not, the copyleft clauses prohibit literally anyone and everyone from remixing GFDL materials with any CC materials licensed with the SA clause. This is why no one, commercial entity or not, can remix Wikipedia content with MIT OCW content. So how is this incompatibility only a problem for “commercial exploiters,” aka companies? Because kids won’t ever want to remix materials? Or because kids would never want to remix Wikipedia materials (GFDL) with MIT OCW materials (CC-By-NC-SA)? Or MIT OCW materials (CC-By-NC-SA) with Wikieducator materials (CC-By-SA)? Or Wikpedia materials (GFDL) with Wikieducator materials (CC-By-SA)? Too bad if anyone wants to, because they can’t. So Stephen’s post on Jennifer’s blog befuddles me.

And, while I’m asking Stephen to explain things to me, why is it that he seems to think “open” should really mean “closed?” In other words, why is it that “open” should mean “open to everyone except for some people” – specifically, companies? Why should we exclude anyone from what we’re trying to do? Stephen has talked before at length about how corporate participation in open education will be worse than no participation from corporations at all. Of course, this hasn’t been the case for RedHat and Linux, and it won’t be the case for open content and commercial publishers who get involved in it. But let me give an example. A while back, when I wrote about how the ambiguities and vagaries of the NC clause were scaring people away, Stephen responded:

Now you might say that I am actually limiting distribution by taking this attitude [of not caring if the NC clause scares away some people who might use open content]. Because, after all, I am lowering the number of people who could be distributing material. Because you support both free and commercial access, while I only support free access.

If this were simply a case of adding the two together, I would agree. But I would argue that the commercial use of content actually impairs the free use of that content. In other words, the access allowed by a commercial plus free access is less than the access allowed by free access alone.

There are many reasons for this.

And now let me take his points in turn:

• The commercial sector, for example, lobbies against funding for the free sector (cf. the lobby against the BBC, for example) as ‘unfair competition’.
• The commercial sector creates and lobbies for restrictions and conditions that make the distribution of free assets difficult – mandatory DRM standards, for example, accessibility requirements, or in our field, IMS specifications.

These statements are probably both very true. But neither of these lobbying activities will increase or decrease in correlation to commercial companies’ abilities to distribute open content, and so these are completely irrelevant.

• The commercial sector limits use of content by trademarking it or patenting it (for example, the animal images used on O’Reilly books are public domain, but only O’Reilly may use them on tech books, at least according to O’Reilly).

A little background in responding to this point. You may be surprised to hear this – but I am not anti-copyright; that is, I do not believe we should abolish copyright. I believe the incentive created by a limited-term monopoly on copying and distributing encourages lots of people to do things they would never otherwise do. I am, of course, a strong advocate of a significantly shortened term of copyright. I don’t know how you continue to encourage Walt Disney to produce creative works 50 years after he has passed away.

Stephen’s point about trademark pulling things out of the public domain is partly true. To briefly quote a nice paper on the subject by Zorich, “trademark does not grant an exclusive monopoly on use; instead, it grants the trademark holder the right to use the trademarked item as a means of distinguishing its goods or services in a commercial marketplace.” So O’Reilly protecting the use of public domain images on the cover of a technology book doesn’t prevent you or I from using them on our website, putting them on T-shirts, or doing anything else with them. It only prevents you and I from using them on the cover of our own technology books, which we would likely do to try to confuse the public about the origin of the books. So the trademarking of a public domain work in a specific market (like technology books) does prohibit one specific use of the public domain work. But it does not prohibit any others. And frankly, I don’t have a problem with that. I think it falls in the incentive category I mentioned in the previous paragraph. O’Reilly puts a lot of brain power and resources into their marketing. Why should I be able to come along and both (a) confuse the consumer and (b) ruin their reputation with a shoddy book that looks like they produced it?

There are three possible choices when it comes to using a public domain work as a symbol for your product – whether for-profit or otherwise (let’s keep in mind that not-for-profits trademark slogans and artwork and other things as well). One – no one should ever be allowed to do so, regardless of what benefit might be realized. Two – first person to do so should receive some protection against masqueraders. Three – there should be no restrictions at all with regard to this specific use of public domain works, regardless of what harm may occur. Stephen will likely disagree, but I believe situation Two (which happens to be the current situation) is the most reasonable. Situation one completely restricts uses of this sort (and thereby makes all public domain works operationally equivalent to fully copyrighted works), and situation three likely leads to complete chaos.

I’m knowingly delaying a response on the patent issue as I fully admit