Week Five Digital History Post: History, Lawyers, and How to Borrow Without Stealing

Just like printing presses...

Copyright law is fuzzy. It's not the cute, cuddly, kind of fuzzy, either. It's more the "I dropped my bifocals in a vat of olive oil, and without taking time to wipe them off I'm going to read War and Peace" kind of fuzzy. When the fledgling government of the newly formed United States set about to create some sort of law governing creative works, the principles they set forth seemed to be pretty good. They were conceived to protect both the rights of owners and users of said material. The entire idea behind copyright was to encourage the creation and advancement of scientific, and other, works. As is so often the case, a couple hundred year of legislative drift occured, and the original intent of the law was lost to the legal wranglings of those who were more concerned with their own bottom line than they were with honoring the spirit of the law at its inception.

...copyright law get more complex with time 

In the past few years, the situation has become tinged with more than a little irony. At the same time that music, publishing, and movie corporations are successfully lobbying Washington for ever more restrictive laws concerning copyright, the internet is making enforcement of these laws harder and harder. While most people just take advantage of this and attempt to "slip through the cracks" by downloading music, computer software, and even books, as scholars we must hold ourselves to a higher standard. Realistically, while the digital age makes piracy easier, for those of us who choose to attempt to navigate the digital high seas legally, the changes in the way that information is used make things far more difficult. For example Daniel J. Cohen and Roy Rosenzweig of the Center for History and New Media write of an experience from the  they had when they were attempting to make an educational CD and ran into trouble. The use of the digital medium allowed them to include information from a number of different formats, from simple images to full video. While this meant that they are able to include far more information than they might have been able to in a book, it also means that they had to seek the permission from the copyright holders for each and every one of these items. Obviously this required the investment of a considerable amount of both time and money, two luxuries which most of us simply don't have.

The one saving grace for academics and researchers amidst all this copyright chaos is the term "fair use". According to the Copyright Act of 1976 there are certain conditions under which copyrighted materials can be used without obtaining permission from the owners. For those of us who can't hire a mercenary army of lawyers to secure rights for materials we want to use in the classroom, fair use provides us with a generous amount of leeway. Of course fair use—as all other things having to do with copyright law—remains fuzzy. Scholars cannot, however, allow the ill-defined nature of fair use to discourage them from using it. Far from it.  Employment of the fair use guidelines is much like using a muscle, in that they get stronger as they are used, and atrophy if they are not (visit here for more information on fair use).

The Creative Commons logo.

Utilizing and exercising fair use is key to protecting the rights of users in the protracted war over copyrights, but there are yet other answers to our problem. One of these is the site Creative Commons. Founded by Laurence Lessig, a professor at Stanford Law, Creative Commons provides solutions for people who want to protect their intellectual property, but also want to be able to share it with others. Creative Commons has drafted up limited use licenses which make it much easier to share everything from photos, to music, and even to textbooks. For those who are keeping an eye on the original intent of copyright law. Creative Commons represents both a original approach and a return to the foundational principles of copyright law.