Everybody respects Stephen, and I’m no different. I’m dying to understand his criticisms of the creation of an educational use license for content, but I may be too dense to do so. Below are point by point responses to his criticisms as best as I understand them. If someone else can see that I’m missing the point in one or another, I wish they would fill me in. I hope he will make point by point rebuttals and responses so that I can better understand where he’s coming from.
Such a license begs the question of how ‘educational’ is defined and who will define it
No it does not. The license is a legal document, and “educational” has a definite meaning in legal history and past court decisions (granted the interpretation is US specific). Part of the beauty of working with Creative Commons on this project is that, instead of receiving no legal support from the community but pushing ahead with OpenContent licenses, “real lawyers” do reviews of literature and can say with some precision what “educational” means in the US legal system. Stephen and others may not like what it means, but that doesn’t change it.
I believe there is already a significant and stable “common understanding” of the term “educational” not just in legal history, but in the average person’s head. Fortunately these two understandings agree (as is not always the case with copyright law; cf Jessica Litman).
No one is more interested in facilitating informal learning than I am, (cf “OSLO Group”:http://oslo.usu.edu/). But legal documents aren’t the place to attempt to win mindshare for new interpretations of terms with decades of legal history. These battles have to be fought in the minds of people first. Only when popular opinion of “educational” has moved will courts be likely to reinterpret what “educational” means to them.
Such a license favour educational institutions at the expense of individual learners
This license bends over backwards to extend every possible right to individual learners within the constraints of the meaning of “educational”. In many educational use licenses, use is only permitted to institutional employees acting in their formal capacity. In other words, students in a peer study group would be prohibited from using materials legally. cc.edu gives rights to use “in a manner that is directly related to and of material assistance to the primary teaching and learning activities of an educational institution,” “solely for educational purposes.” Teachers, TAs, and peers, in sessions formal or informal, would be able to legally use cc.edu material to support individual learning.
Such a license opens the door to the pervasive monitoring of ‘educational use’
I agree completely with this statement, but am also quite confused by the sentiment of it. First, Stephen seems to imply that the cc.edu is inferior to the standard cc license in that cc.edu implies monitoring while cc does not. However, cc.edu opens the door to monitoring of educational use only to the same degree that the standard cc license opens the door to monitoring attribution, commercial use, and redistribution of derivative works under like licenses. Releasing material under any agreement implies monitoring. The only nonmonitoring option available in the distribution of creative works is dedication to the public domain. I think I must have missed the point here.
This criticism seems particularly odd given Stephen’s own work in technically enabling the “specification of use conditions”:http://www.downes.ca/cgi-bin/website/view.cgi?dbs=Article&key=1041124246&format=full for learning objects.
Such a license allows commercial publishers to push more legitimate open and free content from the marketplace by protecting the commercial sale of such content in other domains.
Again, I’m confused by a couple of things. None of the following will make sense if I’ve completely misunderstood the criticism. First, it doesn’t seem that open content can be pushed from the marketplace because its not part of the marketplace. The economics of open content are completely different than those of the marketplace, and while high quality open content may cause commercial publishers to think twice about creating for-fee versions, in the history of open source software I don’t see many examples of the existence of for-pay versions slowing down developers in their pursuit to build free alternatives.
Second, does anyone expect commercial publishers to be involved in using the cc.edu at all? Why would they? At first one might imagine commercial publishers using cc.edu licensed material as a “loss leader” advertisement to showcase commercial content. However, once the material was licensed under cc.edu, then no commercial use can be made of the content without express consent. Would commercial publishers really do this to themselves (put themselves in the position of having to explicitly authorize everyone who ends up buying “the rest” of the material to use the cc.edu material commercially as well)? Do commercial publishers want to authorize people to make freely shared derivative works of their “potentially commercial” content? I don’t believe commercial publishers will get within a mile of cc.edu.
Moreover, there is no mechanism or principle for deciding on the nature or domain of such an educational license: it will be, essentially, whatever David Wiley says it will be.
If a listserv with a “heated discussion” (as Stephen calls it) is not a mechanism for deciding the nature of the cc.edu, I don’t know what is. If cc.edu was going to be whatever I wanted, there would have been no listserv, no discussion, and no drafts — just an announcement of cc.edu v1.0.
At the same time, it is true that there is no mechanism for an individual to veto the cc.edu idea, which I think is what Stephen would like. But this all feels like the pages of history to me now. Richard Stallman was opposed to OpenContent; the project struggled to get off the ground over his oppositions, but finally managed to do so.
What I don’t understand is why Stephen feels like he should have veto power over another person’s project. I am just a completely opposed to his work on facilitating “fair compensation for RLO creation in distributed LO repositories”:http://www.downes.ca/cgi-bin/website/view.cgi?dbs=Article&key=1041124246&format=full because it legitimizes, facilitates, and encourages the creation and distribution of commercial learning objects. But do I have the right to demand veto power over this or anyone else’s work? No. Will I ever publicly call for him to drop his interest and pursue something else? No. I may criticize, as the academic tradition allows, but I would never presume to exercise dominion over another person’s research agenda.
Some people may consider my comments to be like “hand grenades tossed your way from the peanut gallery,” but I don’t think the establishment of free content as some kind of charity from (and at the beck and call of) commercial publishers to be a good thing, and while the publishers would no doubt find the free publicity an educational CC license would bring to be worthwhile, it would in the long run come at the expense of students.
As I’ve said, I don’t think commercial publishers will come within a mile of cc.edu. Even if they did, it would only mean a net gain in open educational content.
David Wiley may have, as he says, a “personal itch,” but some itches should perhaps not be scratched without due consideration of the consequences.
I’m only pursuing cc.edu because I’ve considered the consequences at some length. I wouldn’t invest the time and effort of all this debate (especially when I can just “do whatever I want”) if I didn’t believe the payoff to be significant.