Terrible ideas and brilliant ones can be surprisingly difficult to tell apart.

More often than not they tend to be terrible. So, from a purely statistical perspective, what you’re about to read is likely a horrible idea. That fact notwithstanding, in the great tradition of selfishly publishing less than half-baked ideas on my blog so that I can benefit from readers’ comments and feedback, I present the following little thought experiment for your enjoyment.

Some Context

In which I present a view only slightly more strident than my actual feelings

Every day it becomes more obvious that we are deliberately slowing the advance of science and the useful arts, the pace of that innovation which we so fastidiously revere, for the sole purpose of propping up the expired business models of academic journal publishers.

But we may have finally seen the nail that will seal academic journal publishers’ coffins. Via Stephen Downes yesterday, here’s an article about how to use Tor with Sci-Hub in order to privately and securely read research articles you don’t have legal permission to access. The “you’re not allowed to read this research” genie seems to be completely out of the bottle. The Library Loon shares thoughts about the countermeasures journal publishers will undoubtedly begin to employ against Sci-Hub and, consequently, all other readers of their articles – making them even less useful to scholars, researchers, and other readers than they currently are. It sounds like Napster and the turn of the century music wars all over again.

At least when the music industry began suing downloaders, they could pretend they had artists’ financial interests in mind. But given the thorough intellectual raping and pillaging journals commit against academic authors, stripping them of essentially every right contractually assignable, there will be no sympathy for the journals as their end game plays out. Who exactly are the little guys the journals are fighting to protect as they sue researchers for illegally reading articles that advance their cancer research? Who will the public side with here? Was there ever a worse PR disaster waiting to happen?

If it were ever broadly understood by the public, even the current state of academic journal publishing would be a PR disaster. Let’s be clear – for many decades the academic author never even had a choice. If she hoped to keep her job, she was forced to give away – literally give away – any and all rights to her own work so that journals could charge outrageous sums of money to prevent most people from reading it. Adding insult to injury, the journal then also charged the author to purchase back copies of her own words, which of course were no longer hers but now the sole ‘property’ of the publisher. (And did I mention she also has to serve as a volunteer reviewer for the journal in order to meet her service obligations to earn tenure?) Today, authors have the privilege of not only doing all the research, writing all the words, and being volunteer review labor for the journal, but if they want to retain control over their writing they can also pay the journal $1500 – $3000 per article they publish. Makes you want to write more, doesn’t it?

The entire system is morally compromised and morally compromising. Here’s a modest proposal to speed academic journal publishers’ demise, ease the pain of their passing, and put innovation back on the fast track.

The Thought Experiment

In which I attempt to strain the reader’s willful suspension of disbelief

Strong copyright advocates have long claimed that creative works are “property” and therefore should be afforded all of property’s protections and other considerations under the law (plus whatever additional concessions they could wring out of the hapless congresspersons they lobby). Let’s play that idea out for a moment. Adapting language from Wikipedia for the sake of expediency:

Eminent domain is the power of a state or a national government to take private property for public use. The property may be taken either for government use or by delegation to third parties, who will devote it to public or civic use. The power of governments to take private real or personal property has always existed in the United States, as an inherent attribute of sovereignty. This power reposes in the legislative branch of the government and may not be exercised unless the legislature has authorized its use by statutes that specify who may use it and for what purposes. The legislature may take private property by passing an Act transferring title to the government. The property owner may then seek compensation by suing in the U.S. Court of Federal Claims… Its use was limited by the Takings Clause in the Fifth Amendment to the U.S. Constitution in 1791, which reads, “… nor shall private property be taken for public use, without just compensation.” The Fifth Amendment did not create the national government’s right to use the eminent domain power, it simply limited it to public use.

Think about it for a moment. What privately held property could possibly benefit the public more than the scholarly record? The accumulated knowledge of the researchers of the last 100 years or so (i.e., research articles still under copyright of disseminators as opposed to authors)? Has there ever been a better public use argument for taking private property under the government’s eminent domain power? Honestly, what is the benefit of a road somewhere compared to the scholarly record?

As the Fifth Amendment notes, the law requires “just compensation” when private property is taken in this manner. That would undoubtedly be a large sum of money in this case. Where would it come from? Probably from the budgets of libraries across the country that are already paying outrageous fees to lease temporary access to intentionally crippled digital versions of research articles.

This could be a win-win:

  • Publishers, who are under incredible pressure from alternative distribution models, legitimate open access programs, and guerilla open access initiatives like Sci-Hub, get a major golden parachute for their shareholders.
  • The full scholarly record goes immediately into the public domain, benefiting everyone.
  • Libraries continue to pay out of their acquisitions budgets for some period of time, but now they’re paying for something that is actually usable by students, faculty, scholars, and others.
  • The hundreds of millions of people whose tax dollars supported much of this research, but who have never had a chance to see the results of the work they funded, finally get what they paid for.

Now, you may be asking yourself ‘can “intellectual property” be taken under eminent domain?’ Here’s a lengthy excerpt from a Chapman Law Review article (with a link to an apparently legal copy of the entire article) that makes the case – An Eminent Consequence: Why Copyrights Could Become Subject to Eminent Domain. Reader beware: This is a single article by a single author (who I don’t know), and clearly this is not the definitive word on the matter. However, the argument is intriguing, and the eminent domain taking of the scholarly record by the government appears to be theoretically possible.

There would, undoubtedly, be significant logistical obstacles to overcome in implementing such a plan. (For example, if a foreign publisher’s copyright is formally recognized in the US, does the US government have jurisdiction to seize it under eminent domain?) A plan like this would be anything but simple or straightforward. But think of the benefit to society it could create… Imagine the revolutions in scientific discovery that would be enabled by unimpeded, cross-disciplinary, automated text-mining – something utterly impossible under the current publisher regime. Imagine the increased rate of innovation that would emerge as more and more people had access to cutting-edge knowledge, increasing our ability to solve ever larger and more complex problems at home and abroad. Imagine the humanitarian impact of thousands of volunteers in Wikipedia-like projects freely translating these research results into languages spoken in the developing world. Imagine shaking up the antiquated tenure and promotion policies at universities! (Ok, I admit it – that last suggestion strains my authorial credibility.) As Dr. Seuss might say, you could imagine until your imaginer gets sore and not even have scratched the surface of the possibilities.


Well, there you have it. When you play out this little thought experiment, where does it take you? Does it catalyze a global increase in innovation and quality of life? Does it cause the zombie apocalypse that ends human society? Something in between?


The tl;dr. In many contexts – like open content, open educational resources, open source software, open access, and open data – “open” means “free plus permissions.” But when modifying nouns that aren’t copyrightable – for example, in contexts like “open pedagogy” or “open educational practices” – open necessarily means something else. There are significant costs when we aren’t clear about what we mean by open in different contexts.

A dozen or more years ago I was sitting in a meeting at MIT. There were fifteen or so people from around the world in the room and we were talking about open courseware. At some point the conversation turned to copyright and the incredible amount of time, effort, and resources it takes to review and clear all the material you want to share openly. A participant from China smiled broadly and said something along the lines of “That’s one of the great things about doing this work in China – you don’t have to worry about copyright! Nobody over there cares.” We all laughed appreciatively at his caricaturization of his own culture. As our laughter died down he added emphatically, over a flat stare, “I’m serious. We don’t even think about it.” Our laughter turned to awkward chuckling as we struggled to change the subject.

Matthew Smith has written a really excellent article over on the ROER4D (Research on Open Educational Resources for Development) site titled “Open is as Open Does“. This post is extremely timely for me, given that the #OpenEd16 Call for Proposals just opened yesterday and includes the themes “The Meaning of Open” and “The Ethics of Open.” There are numerous really smart and challenging ideas in Matthew’s post worth responding to, but I’ll focus this little bit of writing on the meaning and ethics bits.

Matthew begins,

As someone who thinks about and funds research on openness in developing country contexts, I’ve often wanted to ditch the word open altogether. It is such a value-laden term, with so many potential interpretations that people attribute whatever meaning they like to it – often with great passion. Then we end up in endless debates regarding effectively arbitrary definitions. Given that any application of “open” to a new social innovation (like open educational resources or open government) is really just a social convention, can we really say that one definition is the right one?

Asking after the universal single right meaning of a word seems like a less than fruitful enterprise, and it’s obviously not what Matthew means to do here – in fact, he’s suggesting it’s impossible. Let me agree with him for a paragraph or two.

There are cultural and contextual differences in meaning of words – what is the correct definition of “flat”? Does it mean “apartment” or not? The answer, of course, depends on when and where you are. Meanings vary by context. Even in the very same time and place, the same word can have multiple meanings which become clear only through their use in context. Is a “sentence” a set of words that convey a complete thought, or the punishment given to a person found guilty of a crime? Yes. Words only have meaningful definitions in context, and so part of our quest for clarity about “open” has to be a scoping of the context we care about. (Just for fun, look at Google’s definition of open. Be sure to click the down arrow at the bottom of the box to get all the juicy details – Google presents 15 major definitions of the term, none of which cover the specific context our current conversation imagines.)

While there is an important sense in which a certain level of ambiguity lubricates our everyday conversation, there are some contexts in which being specific about definitions matters greatly. Context: when the doctor says I need to take 100 milligrams of ibuprofen, it matters a great deal that we agree – with specificity – about what a “milligram” means (and what “ibuprofen” means for that matter). Context: if you spend $1000 for an Apple Macbook, you have an expectation that “Apple Macbook” means something very specific. Context: when the US Department of Labor offers $2B in grant funding on the condition that all materials created with that funding be “open” educational resources, they likely have something quite specific in mind.

Generally speaking, the importance of defining a term-in-context with specificity is directly correlated to the potential negative consequences of persistent confusion about the meaning of the term. I continue to argue – often with great passion – about the meaning of “open” in the narrow context in which I work because I believe failure to create a broad consensus about it’s meaning will have significant negative consequences for society. I’ll come to those in a moment.

Matthew continues,

Critically, what the research [in the developing world context] suggests is that open standards and/or legal permissions are neither necessary nor sufficient for some people to treat the material as open in practice (i.e., engage in the 5Rs practices) to make or do something useful or valuable with that technology or content. This is true particularly in developing country contexts without active copyright enforcement or culture. What the research in the developing world is revealing over and over again is that “free with permissions” can happen through social rather than legal means – it may be based on norms rather than law… “In situations where intellectual property enforcement is either impossible or counterproductive, people frequently behave toward protected content as if it were part of a commons, and as if intellectual property regimes did not exist, or simply did not matter.” (Mizukami & Lemos 2010)

You can now understand why reading this article reminded me of my uncomfortable experience at MIT all those years ago. I fully trust that Matthew is correct about what is happening on the ground in many developing world contexts. However, I don’t believe this reality changes the context specific meanings of open that I recently wrote about in my article on The Consensus Around Open. When used as an adjective to describe specific creative artifacts – like open content, open educational resources, open access research articles, open data, or open source software – the clear community consensus is that “open” means free plus permissions.

Matthew hints toward a path through the confusion later. He notes – and this is critically important – that permission to do something doesn’t guarantee that it gets done:

OER by themselves don’t do anything – they don’t have an impact just sitting in the cloud or on someone’s Raspberry Pi. It is only when they are used in particular ways that change can happen – and it is this change that motivates most people interested in “open” in the first place.

Here’s the intellectual pivot that I believe is important. The context Matthew is really writing about – open pedagogy, open practices, or open educational practices, depending on whose terminology you prefer – is meaningfully different from the context I just described. One is open as an adjective describing characteristics of creative works, which are copyrightable, and the latter context uses open as an adjective describing things people do in support of learning, which aren’t copyrightable. And since they aren’t copyrightable, it makes little sense to try to define them as being permissible or not.

I define open pedagogy as ‘the set of teaching and learning practices that are only possible or practical in the context of the free access and 5R permissions characteristic of open educational resources’ (e.g., here). Those who prefer other terms, like open practices or open educational practices, use different language that means largely the same thing.

Note that my definition of the “open” in open pedagogy doesn’t say how you ended up getting those 5R permissions – it only encompasses the range of things you can do once you have them. There are a number of ways you could end up with these permissions as pertains to a specific creative work you want to use in support of learning:

  1. You could be granted them explicitly by means of an open license,
  2. The creative work you want to use could be in the public domain, meaning there is no need to acquire permissions,
  3. The use you want to make could qualify as fair use / fair dealing, exempting you from the need to acquire permissions, or
  4. You could just not care about the legality of what you’re doing and proceed to act as though you had the necessary permissions when you really don’t, perhaps because you think there’s no way you’ll get caught

Matthew sees a lot of (4) happening in the developing world, and suggests that perhaps the way we define open should be based on what’s happening in the real world, rather than what we are imagining in our towers of ivory:

One alternative approach would be to take a grounded theory approach to the open definition. In other words, we build up a definition based more on what is happening in practice, rather than pre-conceived theory about open. Given the evidence emerging from IDRC supported research, the conclusion would be to focus on openness in practice, what that looks like, how to do it well, and its benefits – regardless of legal or technical status. I see this as the logical evolution of openness: First we define it (arbitrarily), then we research it, and then based on the new evidence, we redefine it.

I see two problems with this approach. First, it would equate open with breaking the law (we can argue about the ethics of this disobedience separately). In the US and other places we have worked extremely hard to demonstrate that open educational resources respect the law, comply with the law, and that it makes sense for government to embrace the principle of openness in many of its functions. If open became a synonym for violating the law, there is no way governments could support openness, no way that open policies could be enacted, etc. I don’t believe that making “open” mean a systematic disregard for copyright moves forward the work any of us are trying to do. (I could probably support a phrase like “guerrilla open” to describe these practices in order to acknowledge their broad practice and characterize them accurately.)

The second problem is by far the larger of the two, and pertains to both the forms of open pedagogy that rely on fair use and those that depend on guerrilla open practices. This is because forms of open pedagogy practiced in the context of a fair use exemption generally must remain private (in order to qualify as a fair use) and forms of open pedagogy practiced illegally generally must remain private (in order to avoid being caught and punished).

When work is done privately – when it is carefully hidden from the public – no synergy is possible. When the individual nodes remain disconnected, no network can emerge. When the giant hides, no one can stand on his shoulders. For example, we now know that Archimedes, in his The Method of Mechanical Theorems, developed several techniques similar to integral calculus. However, because Archimedes’ work was lost, it was nearly 2000 years before similar techniques were rediscovered by Newton and Leibniz. How would the world be different today if the calculus had emerged 1800 or 1900 years earlier? We’ll never know, because this incredible intellectual work never became public until quite recently.

Likewise, by relying on interpretations of open that require teachers and students to develop and perform new pedagogies in private we are no doubt missing out on amazing work that is occurring around the world. The same breakthroughs are likely made by multiple faculty or teachers, only to retire with them because the whole enterprise was illegal in the first place and so they could never speak about them publicly. Or perhaps it all depended on an interpretation of “fair use” that they weren’t willing to take a chance getting sued over, so they kept quiet about it. No doubt, we are more often failing to learn lessons about things people secretly tried that were ineffective, and these ineffective techniques are then replicated in classrooms around the world, too.

By contrast, when open pedagogy is practiced publicly its methods, tools, artifacts, and results can be made freely and openly available to the public. They can be disputed, replicated, evaluated, and argued about. There are shoulders to stand on. There are mistakes to avoid. There is progress to be made.

The opportunity cost of defining the “open” in OER as affordable or free (without permissions), or building the “open” in open pedagogy on a foundation of fair use or guerrilla open, is nothing less than potentially delaying the advance of society. That’s why I’m so passionate about understanding what “open” most powerfully means in each of the various contexts in which we find it.


Notes on Open Pedagogy

Mary and Amanda wrote a great post yesterday about BCCampus’ upcoming plans around open pedagogy. It reminded me that I meant to post the notes I developed for my workshop on open pedagogy at the Maricopa Community Colleges last week. Here’s my outline for the conversation we had there. (Yes, I know it’s outline-y and not completely fleshed out, but hopefully there’s enough here to be valuable.) I’m thinking quite hard about this topic these days.

= = =

Students LEARN as a result of the things they DO.

We ask students to DO many things – read, watch, listen, answer, solve, etc.

Broadly speaking, our PEDAGOGY is how we decide what we ask students to DO.

Asking students to DO some things leads to better learning than asking them to DO other things. We should have a bias towards asking students to DO things that are more effective than less. Hattie is a good first source for this info (but certainly not the last word).

Pedagogy and educational materials intersect because we frequently ask students to DO things with RESOURCES – *read* articles, *watch* videos, *listen* to lectures, *answer* questions, *solve* problems, etc.

Open means “free plus 5R permissions.”

Open impacts pedagogy in two ways:

  • By increasing student access to RESOURCES, open increases the number of students who can DO things with RESOURCES
    • (INCREASE the number of students with access to effective pedagogy)
  • By enabling students to DO things with RESOURCES that weren’t previously possible or practical
    • (ENABLE new pedagogies)

The primary questions of open pedagogy, then, are:

  • What kinds of things would we ask students to DO with RESOURCES if we knew that all of them had access to the RESOURCES?
  • What can we ask students to DO with RESOURCES they can retain, reuse, revise, remix, and redistribute that wasn’t practical or possible to ask them to do before?

A Simple INCREASE Example (from Hattie)

Strategy: Reviewing Records
Definition: Efforts to re-read notes, tests, or textbooks to prepare for class or further testing
Example: Reviewing textbook before going to lecture
Effect Size: 0.49

(Use something like my Summary Slides strategy – so students are teaching students)

For things that weren’t practical or possible before, start from things we know were effective pre-open and make them more powerful post-open.

A Simple ENABLE Example (pre-open)
Strategy: Organizing and Transforming
Definition: Overt or covert rearrangement of instructional materials to improve learning
Example: Making an outline before writing a paper
Effect size: 0.85

There’s one degree of separation because you can’t rearrange the materials, just the ideas within them

A Simple ENABLE Example (post-open)
New Strategy: Revise and Remix
Definition: Editing and rearranging of instructional materials to improve learning
Example: Rewriting examples in a textbook chapter

An early example: Students’ additions of new characters to A Conversation about Learning Objects back in 2005

There are clearly opportunities here to tie into other pedagogical frameworks with high impacts on learning, like Service Learning (0.58).

A Disposable Assignment is any assignment about which students and faculty understand the following:

  • Students will do the work
  • Faculty will grade the work
  • Students will throw away the work

A reasonable estimate has US undergrads spending about 40 million hours a year on these kinds of assignments.

A Renewable Assignment is any assignment where:

  • Students will do the work
  • Faculty will grade the work
  • The work is inherently valuable to someone beyond the class
  • The work is openly published so those other people can find and use (5R) it

Examples of Renewable Assignments

See also BCcampus’ crowdsourced list of open pedagogy examples: https://docs.google.com/document/d/1TDf9Uem4SID0anlUQPxWdwCh3SkvQnEpvQu_bRGRUIU/edit

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