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RHETORICAL INVENTION IN COPYRIGHT IMBUED ENVIRONMENTS
By

Martine Courant Rife

A DISSERTATION
Submitted to
Michigan State University
in partial fulfillment of the requirements
for the degree of
DOCTOR OF PHILOSOPHY
Rhetoric and Wn’ting

2008

ABSTRACT
RHETORICAL INVENTION IN COPYRIGHT IMBUED ENVIRONMENTS
By
Martine Courant Rife

This empirical mixed methods study explores copyright law’s mediational
influence on digital composing using a sequential transforrnative mixed methods
research design. The author executed a digital survey (N=334) of students and
teachers in US technical and professional writing programs. She also conducted
discourse-based interviews with digital (student) writers regarding how they
factored in copyright law and fair use in their composing decisions. The
discourse-based interviews were supported as well by examining a wide variety
of web texts supplied by research participant interviewees. Drawing particulany
upon the work of Janice Lauer, Carolyn Miller, Cynthia Haller, Lev Vygotsky, and
Chaim Perelman, the author synthesizes these scholars’ work and uses that
synthesis to frame her study with activity theory (AT) and rhetoric theory while
simultaneously drawing upon the work of Michel Foucault especially as it relates
to his concept of the “author-function.” Three main areas of inquiry in the study
are: 1) examining the status of knowledge and understanding of copyright law in
the field of technical and professional writing (TPW) as well as with professional
writers; 2) investigating the creative thinking processes, or rhetorical invention, of
writers in these programs composing webtexts in light of copyright law; and 3)
examining what happens to mediational means as writers leverage them in digital

contexts. When synthesizing the data for this third research goal the author as

well draws upon actor network theory, particularly the work of John Law and
Bruno Latour.

The study's six major findings are web spaces are sites of cultural
collision, or oommonplaces, where students occupy sometimes conflicting
positions; The intertextuality of web-space-writing provides support for Foucault’s
theory that the single author is an ideological production representing the
opposite of its historical function, i.e. the “author-function,” in the larger culture.
No support is found for a human culture existing without an “author-function,”
whether it is a workplace culture or even a more community-knowledge-focused
culture as exists in India; Contrary to assertions by a number of scholars, for
digital writers speech is not chilled. Copyright law as a system of invention
organized by rhetoric instead produces speech; Rhetorical topics congeal as a
heuristic mediating the digital composing process of writers. Copyright law is just
one topic in this heuristic, and not the most important topic; For this group of
writers, ethics trumped the law in importance when considering digital composing
choices; Whether copyright law serves as a “rule” or “tool” on the AT triangle is
influenced by levels of writers’ knowledge and understanding of the law.

Implications for teaching, learning and research include suggestions for
changing TPW curriculum and pedagogical approaches, continued disciplinary
theory building in the area of composing process theories as well as research
design, and additional research with respect to a number of complexities and

contradictions that emerged from this study.

DEDICATION
I dedicate this to Mike for his patience, Ansel for his tolerance, and Olivia

for picking up all the slack when I disappeared into the text.

ACKNOWLEDGEMENTS

I extend special thanks to the following persons for helping me with this
dissertation and sharing their ideas; many of these ideas appear in some form or
another in these pages: Special thanks to William Hart-Davidson, Chair who
provided the intellectual framework for my initial mass of chaotic ideas. He also
was really good at helping me figure out what I was trying to say in several areas
on these pages. I also thank committee members Jeffrey T. Grabill, Danielle
Nicole DeVoss, and Bump Halbritter. I must as well especially thank Danielle
Nicole DeVoss for her stamina in staying with me for the last five years as I first
completed my master's degree, and then this PhD. She is the one sustaining
force who served on both committees. Thank you.

Thanks to Ansel Courant for teaching me Excel. I admit I tested the limits
of his patience. Also special thanks to Jim Ridolfo for reading and re-reading
these chapters and talking to me about, especially, the “author-function.” I also of
course thank the research participants, especially the interviewees, who are
certainly the smartest and most cunning digital writers I know. They are also
good people. I thank Kendall Leon for providing feedback on the survey. I
generally thank the Rhetoric & Writing Program, particularly Malea Powell,
Director, as well as the undergraduate Professional Writing Program at Michigan
State University for supporting this study in many ways, particularly through their
energetic and enthusiastic students. I also thank the Graduate School at
Michigan State University for providing generous funding for my work. Finally, I

thank the WIDE Research Center for its intellectual support.

TABLE OF CONTENTS

LIST OF TABLES ..................................................................................

x
LIST OF FIGURES ................................................................................ xi
INTRODUCTION .................................................................................... 1
CHAPTER 1
PERSPECTIVES ON THE COPYRIGHT PROBLEM WHEN
COMPOSING FOR THE WEB ................................................................ 4
The Law: Copyright and Fair Use’s Relevance to Digital
Composing ........................................................................ 6
The Copyright Problem in Educational-Digital Writing Contexts... 9
Research on Intellectual Property Related Topics ........................ 11
Historical Studies in IP and Rhetoric Contexts ................... 12
Pedagogical Arguments Framed in IP Contexts .................. 15
Field-specific Arguments in IP Contexts .............................. 21
Discussions of Authorship and Copyright ............................ 25
Empirical Studies in IP Contexts .......................................... 29
Using Rhetoric Theory to Design an Empirical Study on
Copyright and Digital Writing ................................................ 35
CHAPTER 2
“100 DIFFERENT PIECES” AND RHETORICAL INVENTION:
Ll‘DElETAhDING'I'I-ELAWS INTERSECTIONWITH DIGITALOONPOSING ........ 38
The Webspace as Commonplace: Rip, Mix, Burn ............................ 39
Remix and Authorship ............................................................ 45
My Theoretical Assumptions Framing this Study ............................. 47
Part One: Rhetoric Theory ................................................................ 50
Rhetorical Invention and Heuristics ....................................... 50
Rhetorical Topics as Heuristics ............................................. 56
Connecting Lauer’s Heuristical Thinking to “Legal
Reasoning” ................................................................. 61
Part Two: Activity Theory .................................................................. 65
Overview of Activity Theory History ....................................... 67
What is Mediation? ................................................................ 69
Connecting Activity Theory to the Study of Writing in
Rhetoric & Writing ....................................................... 76
Connecting Vygotsky’s Activity Theory to Heuristical
Thinking in Rhetoric & Writing ..................................... 78
Conclusion ........................................................................................ 80

vi

CHAPTER 3

RESEARCH DESIGN ................................................................................. 82
Research Questions ........................................................................ 83
Research Sites ................................................................................ 84
Population Sampling Methods for Survey and Interviews ............... 85

A. Step One: The Survey ...................................................... 85
B. Step Two: The Interviews ................................................. 87
Survey and Interview Data Collection Methods ............................... 92
A. Step One: The Survey Hypotheses ................................. 92
B. Step Two: The Interviews ................................................ 99
Site and Population Selection .......................................................... 107
Mixed Methods Approach ................................................................ 108
Pilot Study ........................................................................................ 1 12
Overview of Pilot ................................................................... 112
A. Pilot Survey Results ............................................... 1 15
B. Pilot Interview Results ............................................ 1 17
Data Analysis ................................................................................... 1 19
Research Questions .............................................................. 120
Overview ................................................................................ 120
A. Survey-Broad External Global Level Views ...................... 123
C. Interviews-Local Level Context and Detail Building .......... 126
Transforming the Survey and Interview Data ................................... 133
Limitations ........................................................................................ 134
A. Survey Limitations ............................................................ 134
B. Interview Limitations ......................................................... 135
C. Mixed Methods Limitations ............................................... 135
D. Generalizability, Reliability, Validity .................................. 135

CHAPTER 4

BROAD GLOBAL OVERVIEW: THE SURVEY ............................................ 137
Overview ........................................................................................... 138
Part One: Analyzing the Variables .................................................... 144

A. Demographics .................................................................... 144
B. Attitude .............................................................................. 146
C. Cognitive ........................................................................... 149
D. Behavior ............................................................................ 157
Part Two: Differences Between Populations ..................................... 159
Knowledge of Copyright Law .................................................. 164
How Important is Knowledge of Copyright Law? .................... 166
Obeying the Law ..................................................................... 167
Part Three: Analyzing Relationships .................................................. 168
Discussion of Relationships .................................................... 169
Part Four. Answering the Research Questions ................................. 172
Culture and Community .......................................................... 174
Part Five: Overall Implications for Teaching, Learning
and Research ......................................................................... 177

vii

Implications for Changing TPW Curriculum

and Pedagogical Approaches ............................................... 177
Implications for Additional Disciplinary Theory

Building in the Area of Composing Process

Theories as Well as Research Design ................................. 181
Implications for Additional Research with

Respect to a Number of Complexities and

Contradictions that Emerged from this Study ....................... 182
CHAPTER 5
A REMIXED THEORY OF AUTHORSHIP ................................................... 185
Actor Network Theory (ANT) ............................................................. 191
The Data ........................................................................................... 193
Colliding Cultures ............................................................ 193
“Student"? ........................................................................... 204
A Remixed, More Robust Theory of Foucault’s Author-Function 211
Common Knowledge — Commonplace .......................................... 226
Implications for Teaching, Learning, and Research ...................... 228
Student Subjectivities ......................................................... 228
Writing the History of Present-Day Authorship ................... 230
Rhetoric, Activity Theory, and Foucault/ANT ...................... 233
CHAPTER 6
RHETORICAL INVENTION AND THE LAW ............................................. 236
Heuristics & The Role of Metis in Invention .................................... 236
Copyright Law as Producer .................................................. 249
A Frame of Justice ............................................................... 249
A Digital Writing Inventional Heuristic .................................. 250
A Theory of Metis in Invention .............................................. 257
Ethics Trumped the Law ....................................................... 265
Rules or Tools?: The Agency of the Law .............................. 269
Implications for Teaching, Learning, and Research ............. 283
ENDNOTES ............................................................................................... 287
APPENDICES
Appendix 1.1 ............................................................................................... 296
Appendix 3.1 ............................................................................................... 399
Appendix 3.2 ............................................................................................... 300
Appendix 3.3 ............................................................................................... 302
Appendix 3.4 ............................................................................................... 313
Appendix 3.5 ............................................................................................... 315
Appendix 3.6 ............................................................................................... 316
Appendix 4.1 ................................................................................................ 343

viii

Appendix 4.2 ................................................................................................ 346
Appendix 4.3 ................................................................................................ 348

REFERENCES ............................................................................................. 349

LIST OF TABLES

TABLE 3.1: Stratification of Programs in Entire Population

before Random Selection ....................................................................
TABLE 3.2: Comparison of Stratified Populations ...............................
TABLE 4.1: Two Screening Questions ................................................
TABLE 4.2: Educational Level ............................................................
TABLE 4.3: Student/Teacher/Other .....................................................
TABLE 4.4: Obeying the Law ...............................................................
TABLE 4.5: How Important is Knowledge of Copyright? ......................
TABLE 4.6: Knowledge and Understanding—Copyright and Fair Use

TABLE 4.7: Knowledge and Understanding—Unauthorized Use vs.
Authorized Use Questions ....................................................................

TABLE 4.8: Knowledge and Understanding—The Plagiarism Question
TABLE 4.9: Chilled Speech Index ........................................................
TABLE 4.10: How Important is Copyright? ............................................

TABLE 5.1: Rhetoric of Probable Knowledge — a Cross Cultural View

86

93
1 40
1 45
1 45
1 47
1 49
346

348
1 52
351
1 67

235

 

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I-F

 

 

LIST OF FIGURES

FIGURE 2.1. Screen Capture from Leslie’s Interview ........................ 40
FIGURE 2.2. Heuristics as Mediational Means ................................... 64

FIGURE 2.3. A Traditional Social Science Stimulus-Response

Model. In a traditional social psychology framework, the person

(as a container of variables) coordinates a task with the

environment. Copyright law is part of the environment, just one

part that the actor takes into account when composing for the

web ..................................................................................................... 69

FIGURE 2.4. Copyright Law in a Generation-One Activity
Theory Triangle ................................................................................... 71

FIGURE 2.5. A Generation-Two Activity Theory Triangle. Above is
a second-generation activity theory triangle showing the additional
cultural, social, and history dimensions added to Vygotsky’s original

proposals ............................................................................................ 73
FIGURE 3.1. Studentness of Interview Participants ............................ 88
FIGURE 3.2. Causal Process Model Regarding Survey ...................... 97

FIGURE 3.3. Survey Attrition. The vertical line above question two
indicates the end of the first two screening questions on web
composing ........................................................................................... 98

FIGURE 3.4. A Screen Capture from a Student Web Text Used to
Formulate Interview Questions before Meeting with the Student

Interviewee ........................................................................................... 105
FIGURE 3.5. Pilot Study Participants in Quadrants (N=26) ................. 114
FIGURE 3.6. Three Systems ................................................................ 122
FIGURE 4.1. Knowledge Levels for Students, Teachers and Others... 165

FIGURE 4.2. From Left; Positive Correlation, Zero Correlation,
Negative Correlation ............................................................................ 168

FIGURE 4.3. Showing the Relationship Between Knowledge and
Certainty in that Knowledge ................................................................. 171

xi

FIGURE 5.1. Visual Vignette of Jessie’s Web Writing ......................... 195

FIGURE 5.2. Visual Vignette of Amanda’s Web Writing ...................... 198
FIGURE 5.3. On the Top is Heather’s Work and on the Bottom

is Sarah’s .............................................................................................. 201
FIGURE 5.4. Visual Vignette of Rob’s Web Composing ....................... 209
FIGURE 5.5. Visually-Symmetrical Cultural Attire Collage ................... 223
FIGURE 6.1. Cultural Activity System Organizing Meaning ................. 245
FIGURE 6.2. The Mediational-Digital Composing Heuristic ................ 264
FIGURE 6.3. The Actual Law and the Proximate Law ........................ 272

FIGURE 6.4. Relationship of Copyright Understanding to a Webtext
At the tip of each arrow one might image a webtext. As

the writer's understanding of copyright law varies, so

does the impact the law has on the writer's webtext. The

idea of this diagram is taken from Hutchins (1995), except

where I have the copyright law, he has a canoe. Where I

have the writer, he has an island. Where I have the webtext.

he has stars. So as the canoe travels, the position of the

stars change in relation. In western navigation, the island is

mapped as fixed .................................................................................... 276
FIGURE 6.5. Legal Associations Produced by Title 17 ......................... 281
FIGURE 7.1. LESLIE’S VISUAL VIGNETTE ......................................... 317
FIGURE 7.2. ROB’S VISUAL VIGNETTE ............................................. 323
FIGURE 7.3. SARAH’S VISUAL VIGNETTE ........................................ 326
FIGURE 7.4. JESSIE’S VISUAL VIGNETTE ........................................ 330
FIGURE 7.5. HEATHER’S VISUAL VIGNETTE ................................... 334
FIGURE 7.6. AMANDA'S VISUAL VIGNETTE ..................................... 338

xii

INTRODUCTION

I’m going to briefly summarize each chapter here.

In Chapter One I first outline my research questions and then discuss the
law and define both copyright and fair use and their intersections with digital
composing. My basic research questions explore whether and how copyright law
(and fair use by implication) is influencing digital composing processes and
whether (how) copyright law, rhetorical invention, and digital writing intersect?
Next, I point to the particular issues raised in educational-digital writing contexts,
followed by a review of the literature on intellectual property (IP) related topics in
the five areas of history, pedagogy, general field-based stances, authorship, and
finally empirical studies. I end Chapter One by leading into Chapter Two which
discusses my theoretical frame as I designed and entered this research.

In Chapter Two I provide a theoretical framework for understanding both
the nature of my inquiry as well as the study design. In the chapter, I blend
together rhetoric theory and activity theory as it pertains to my inquiry. I discuss
the webtext as a site for rhetorical invention, a space where copyright issues are
raised, and a practice that challenges our current understandings of authorship. I
also explain rhetoric theory’s connection to the copyright problem, followed by a
justification for my use of activity theory and how I’ve blended that with a rhetoric-
based notion of heuristics.

In Chapter Three I explain the research design as a mixed methods study

that includes a survey and interviews of students and teachers in technical and

professional writing programs, and writing majors, in the US. I explain the three
larger research goals. One, I want to examine the status of knowledge and
understanding about fair use and copyright law across the field of technical and
professional writing as well as in individual writers. Two, I want to investigate the
creative thinking processes, or rhetorical invention, of writers in these programs
composing web compositions in light of copyright law. Three, I want to examine
what happens to mediational means as writers leverage them in digital contexts. I
also give a detailed overview of specific research questions. | outline in detail the
rationale for the choices I made in the study design, survey administration, and
selection of student interviewees. I also describe data collection and analysis
methods, the April 2006 pilot study, as well as research design limitations
(generalizability, reliability, validity).

Chapter Four first provides a broad overview of the study’s six major
findings followed by a global perspective on the survey data and subsequent
findings. The study's six major findings are 1) web spaces are sites of cultural
collision; 2) the intertextuality of web-space-writing provides support for
Foucault’s theory that the single author is an ideological production representing
the opposite of its historical function; 3) For this group of writers, digital speech
was is chilled; 4) Rhetorical topics congeal as a heuristic mediating the digital
composing process of writers; 5) When we consider the hierarchical and
embedded nature of rhetorical topics that mediate digital composing choices, for

this group of writers, ethics trumps the law; 6) While the study supports the idea

that laws have agency, as knowledge and understanding increase, that agency is
increasingly diminished by the human actor.

In Chapter Five I discuss a theory of authorship that came out of the data
collection. I describe how my theoretical framework going into the study shifted
during data collected. Thus, ltum to Foucault since he wrote about the author-
function.

In Chapter Six, I argue that we might further explore the connection
between heuristics, metis, and rhetorical invention in copyright imbued
environments. In order to accomplish a start to this exploration, I pick up from
Chapter Five and continue discussing the study’s findings. I also discuss

implications for teaching, learning, and research.

CHAPTER 1

PERSPECTNES ON THE COPYRIGHT PROBLEM WHEN COMPOSING FOR
THE WEB

The Congress shall have Power. . . To promote the Progress of Science and
useful Arts, by securing for limited times to Authors and Inventors the exclusive
Right to their respective Writings and Discoveries. (Article 1, Section 8, US
Constitution)

In this chapter I first outline the nature of my inquiry. I then discuss the law
and define both copyright and fair use and their intersections with digital
composing. Next, I point to the particular issues raised in educational-digital
writing contexts, followed by a review of the literature on intellectual property (IP)
related topics in the five areas of history, pedagogy, general field-based stances,
authorship, and finally empirical studies. I end the chapter by leading into my
next chapter which discusses my theoretical frame as I designed and entered
this research.

An overarching question for our field is whether and how copyright law
(and fair use by implication) is influencing digital composing processes? Since
composing processes rely on rhetorical invention, the question becomes how do
copyright law, rhetorical invention, and digital writing intersect? These questions
are explored in this study. Specifically, I examine whether copyright and fair use
are considered by writers as they compose for the web. The writers I examine

are those in US writing majors including technical and professional writing

programs. Some of my inquiries entering this study include the following:

0 Does the US fair use doctrine play a part in the composing decisions of
professional technical student writers and their teachers?
. Does it influence students in technical communication programs as they
construct websites or other texts that are remixed?
. What is the link between understanding fair use and certainty in that
understanding in the writing process?
These inquires relate to other questions I have. It’s been a decade since Tharon
W. Howard (2004) originally published his piece urging the field to attend to
copyright/fair use issues as they intersect with technical communication. I wonder
if his call been heeded?
- Are technical communication teachers understanding, relying on, and/or
teaching fair use/copyright to their students?
0 Are they doing so in a way that maps onto the eventual workplace
environments that technical writing students will enter?
. Are fear and a lack of understanding/knowledge about fair use
circumscribing digital speech (web writing) in educational settings? In
other words, is digital speech chilled? (Hobbs, Jaszi, & Aufderheide, 2007;
Fisher & McGeveran, 2006; Heins & Beckles, 2005; Herrington, 2001;
Lessig, 1999, 2002, 2004; Logie, 2006b; Porter, 2005; Westbrook, 2006)?
This project aims to answer these questions and provide insights that can guide
programmatic/pedagogical decisions regarding the preparation of students as
technical and professional writers. However we can also Ieam something about

digital writers’ and their ability to express themselves in the current political

climate. As I explain in later chapters, in this study I explore these questions with
a survey and interviews of writers in the professional writing community.
The Law: Copyright and Fair Use’s Relevance to Digital Composing

US copyright law (Copyright Law, Title 17, USC), enacted through
Congress’s constitutionally granted power under Article 1, Section 8, US
Constitution, is applicable to digital composing because this law provides
automatic protection to any work that is fixed and original at the moment of its
fixation. Any original text, visual, sound, etc. published to the web is copyright
protected. Because of copyright law's broad application, virtually all digital
publishing whether or not it incorporates another’s text, visuals, sounds, or
movies, is going to invoke copyright law. Protected works include notes,
webpages, software, computer code, emails, reports, patterns, tutorials,
instructions, manuals, visuals, video, audio, and all other “fixed” media. Under
current law, a copyright holder has the exclusive right to copy, distribute,
perfodeisplay, and create derivative works. Fortunately, relief from the
copyright holder’s monopoly is provided via the fair use doctrine as codified in
Section 107 of the US Copyright Act (Copyright Law). This doctrine provides an
exception to the copyright holder’s exclusive rights (see also Howard, 2004,
p.403) and is heavily relied on in educational environments as students and
teachers complete remixes, critical analysis, research, and mash-ups for
purposes of teaching and learning (Rife, 2007).

Section 107 (Section 107 as well as Section 106 are reprinted verbatim in

Appendix 1.1) defines fair use as "reproduction in copies . . . or by any other

means . . . [for uses] such as criticism, comment, news reporting, teaching
(including multiple copies for classroom use), scholarship, or research”
(Copyright Law). The four factors that courts use to make legal determinations
regarding infringement are listed in the statute, and function as a legal heuristic
guiding not only judges, but also attorneys, users, authors, and others who
attempt to make everyday composing decisions. Those four factors ask that one
consider".
1) the purpose and character of the use including whether such use is of
a commercial nature or is for nonprofit educational purposes;
2) the nature of the copyrighted work (nonfiction has less protection that
“creative” work);
3) the amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and
4) the effect of the use upon the potential market.
While not acknowledged often, reliance on fair use is alive and well in the
business sector. Since technical and professional writing (TPW) cares about
workplace writing, this is relevant. The everyday activities of the intemet rely on
fair use. Search engines send out “spiders” that crawl the web, copying
increasingly vast amounts of data that is stored in the search engines’ databases
(Band, 2005). This copying is completed without direct permission of website
owners. “In other words, the billions of dollars of market capital represented by
the search engine companies are based primarily on the fair use doctrine” (Band,

2005, p.5). Another example of for-profit reliance on fair use is the invention and

sales of software that records screens or captures images on the web
(TechSmith products come to mind). If such uses were not deemed potentially
fair, this software could be outlawed similar to peer-to-peer software due to its
potential to “induce” users to infringe.

Once technical writers leave the academy, how, if at all, do they apply
their knowledge and understanding of copyright/fair use? This question is
critically important as most technical writers with degrees and/or formal education
enter workplaces where they are experts. In other words, such technical
communicators may easily become leaders among their peers; therefore, we
might hope the information and ways of knowing they bring with them from
academia are accurate and useful. In the educational setting of school, in some
ways the risks are great for inaccurate knowledge, but in other ways the risks are
low. The risks are great because the average cost of defending a copyright
infringement lawsuit is just under one million dollars, but the risks are low in the
academy because at least back in 2006, educators weren’t being sued (Fisher &
McGeveran, 2006). This may be changing (See Rife, 2008a).

Since the four elements of fair use analysis consider the nature of the use
(commercial versus educational), and whether the use of a copyrighted work
negatively impacts the potential market for the copyright holder, "fair use” applies
much differently to technical writers in for-profit environments than it does to
technical writing students at the academic institution. To understand
copyright/fair use connections between workplace writing and academic writing,

the current status of technical communicators’ knowledge and practices must be

examined. As Sarah,1 one of the research participants and a recent TPW
graduate working in her own web publishing business notes: “I would love to
know, like what a small web design company . . . three or four people does when
they need pictures and graphics, you know.”
The Copyright Problem in Educational-Digital Writing Contexts

A growing body of scholarship emphasizes the need to teach writers basic
copyright law and fair use (DeVoss & Porter 2006b; Herrington, 2003; Howard,
2004; Juillet, 2004; Logic, 2005, 2006b; Reyman, 2006; Rife, 2006, 2007; Rife &
Hart-Davidson, 2006; Waller, 2006a). Since most writing and research is done
via the computer and in networked environments, reliance on the fair use
doctrine has become crucial for the educational community: we live in a cut-and-
paste world where remix is commonplace (Grabill 8 Hicks, 2005; Lessig, 2004;
Rife & DeVoss, 200x; Westbrook, 2006); however, it is unknown whether “fair
use” is properly understood (and taught) by either teachers or their writing
students. Findings from a pilot study in our field indicate it is not (Rife & Hart-
Davidson, 2006). Further, in September 2007 the Center for Social Media at the
School of Communication at American University released a report “T he cost of
copyright confusion for media literacy,” explaining the results of a study regarding
the understanding of fair use and copyright by individuals in educational-media
literacy contexts. The main inquiry explored the relationship between copyright
beliefs and teaching practice; the study found the key goals of teaching media
literacy were “compromised by unnecessary copyright restrictions and lack of

understanding about copyright law” (Hobbs, Jaszi, & Aufderheide, 2007, p. 1).

“Will fair use survive?”, an older fair use research study (Heins & Beckles,
2005) found artists and scholars have only a vague sense of what fair use means
and this uncertain knowledge circumscribes composing practices: “There is an
urgent need for accurate information” (p.54). An additional study, “The digital
Ieaming challenge” released August 2006, states undue fear about copyright
infringement liability has constricted exchanges of valuable information across
social network spaces (Fisher & McGeveran, 2006). This same study found
because of Digital Rights Management technologies, the only way certain media
can be accessed, even for purely educational uses, is for teachers and
individuals to knowingly violate copyright law by circumventing anti-access
measures. It turns out such circumvention is a common practice (Fisher 8
McGeveran, 2006). Other than my pilot study (Rife & Hart-Davidson, 2006), the
other studies I list here are not in our field. But together these studies say there is
lack of knowledge about fair use, and this misunderstanding is chilling or
circumscribing speech. Both Rife and Hart-Davidson (2006) and Fisher and
McGeveran (2006) found people break the law in some circumstances in order to
accomplish goals. What the present study intends to do is further explore and
test these combined assertions.

Within the field of TPW, there are conflicting viewpoints on how to handle
the copyright problem. In a recent Intercom ethics case problem (Waller,
2006a,b) on applying fair use to workplace writing processes, a case study
presented a newly hired technical writer needing to create a resource publication

for her organization based on lesson plans supplied by 20 teachers who had

10

themselves cut-and-pasted others’ materials from various existing webspaces.
The teachers subsequently supplied the cut-and-pasted lesson plans along with
the URLs to “Erin” who then considered the implications of using such materials
in a resource guide. The case study was interesting because it plunged directly
into a very complicated area where workplace and school legalities and ethics of
use converge. Intercom readers expressed interest in resolving the questions
posed in Waller’s fair use scenario, but reader responses varied greatly (Waller,
2006b). Readers argued “Erin” should walk away from things, “stick with
copyright law,” consider quitting her new job, take the position: “It’s not my job,
boss,” and finally, provide suggestions to her supervisor. I surmise the wide
variety of responses, which in general oversimplified the case study’s variables,
reflect a wide variety understandings about fair use. The inquiry on fair use and
ethics, along with the wide variety of reader responses, points to the need for my
study for the field of technical communication, and even for the larger field of
composition studies. The question remains: At this moment in time, how does fair
use influence writing processes and pedagogical decisions in educational (and
other) settings? Before I explain the research design (Chapter Three) and the
framing theory (Chapter Two), I further describe what others in our field have
said about intellectual property and writing.
Research on Intellectual Property Related Topics

Five categories of rhetoric and writing ( R&W) research (or closely related
disciplines) in the area of IP exist. In order to assure I am not duplicating

someone else’s effort, as well as for reasons discussed in the next chapter, I

11

looked outside our field at IP related research and briefly summarize here what I
found. The five IP research areas, although not exhaustive, are worth noting
because they inform my study:

1) Historical studies that examine certain cases in the context of IP and

rhetoric,

2) Pedagogical arguments framed in IP contexts,

3) Field arguments or scholarly stances/position papers in IP contexts,

4) Discussions of authorship and copyright, and

5) Empirical studies in IP contexts.
Historical Studies in IP and Rhetoric Contexts

Researchers in this category exam historical documents in IP contexts
through a rhetorical lens, and from those examinations write interpretations on
how these histories might inform current practices and theory building. Some
researchers in this category explore the history of IP generally. Brockmann
(1988, 1998, 1999) studied how inventors used technical communication and
rhetoric to accomplish recognition in the US patent system. He examined
historical patent records, looking for rhetorical strategies used by communicators
seeking patent protection. Brockmann notes how inventors such as Oliver Evans
had to construct, in writing, their ideas as both novel and their own in order to
meet the legal requirements for patent protection.

Like Brockmann, Bazerrnan (1999) examined historical documents, in this
case Edison’s notebooks and drawings, through genre theory. Bazennan argues

Edison’s patent-process drawings are speech acts and legal objects - and are

12

marked and shaped by requirements of patentability. Gradually, over time,
Edison’s notebooks were increasingly inscribed with “the law.” “[Nlotebooks also
contained documentary traces of inventive activity with legal implications, certain
legal features rapidly emerged . . .” (p.64). For example, early notebooks
featured invention drawings, but over the years, first one signature, and then
many witness’ signatures appeared in the upper right-hand corner of each
drawing. Eventually notebooks were formally organized rather than strewn all
over the workshop. Finally, official seals were pressed into the upper right-hand
corner of the drawings, providing further documentation of the drawings’
legitimacy. By examining historic records Bazen'nan shows how laws shaped the
generation of knowledge and invention via Edison’s writings. Like Oliver Evans,
Edison had to protect ownership in “his” ideas by documenting novelty (since
novelty is a requirement for patent protection) (p.85). Bazerrnan connects his
research on Edison to ”theories of rhetoric, social organization, and technology
studies” (p.5).

Similarly, Kathleen Durack’s (2001, 2004) research connects rhetorically-
focused historical research with IP issues, but with a slightly different focus than
Bazerrnan. She argues that the patent record is an important place where
women inventors and users of technology might be written into the history of
technical communication. Durack argues that technical communication
researchers might study the patent record in order to trace the history of

discovery and development of their field. All of these researchers looked at

13

historical records in the context of IP and rhetoric and argued that legal systems
of invention shaped “invention” in a very material way.

Outside our field, in legal studies a number of scholars have written pieces
on the history of IP. Here I only scratch the surface. In Gellar’s (2000) piece
“Copyright history and the future: what’s culture got to do with it?” the author
relies on a number of familiar sources, including work by Rose, Levi-Straus,
Havelock, Eisenstein, Foucault, and McLuhan, among others. Gellar discusses
the most ancient aspects of copyright law and the emergence of individual
authorship. Mandlch (1948), May (2002), and Prager (1944) all present
fascinating histories of the first codified intellectual property statutes of Venice.
Ricketson’s (1986) piece is historically oriented and tells of global events and
international figures surrounding the Beme Convention. Okediji’s (2000) classic
piece “Toward an intemational fair use doctrine," provides a comprehensive
examination of history and international perspective on the US fair use doctrine.
Her argument is that some kind of international standard should be developed to
shape and preserve fair use. All of these authors, both in legal studies and in
R&W, explicitly write about either the history of IP, or how IP shaped the
construction of history through its impact on texts.

My discussion here reflects how I thought about the literature entering my
study. However, after conducting data analysis, I think that other authors writing
about history, or even current events, are sometimes writing about cultural

practices that strongly connect to the goals of intellectual property laws although

14

such practices aren’t/weren’t called “copyright law” or “patent.” I discuss this
insight in later chapters.
Pedagogical Arguments Framed in IP contexts

The work in this category argues because of the changed nature of writing
in digital environments, teachers need to recalculate what they teach and include
IP issues. On a broad level the argument in favor of teaching intellectual property
derives from the growing body of scholarship arguing in favor of teaching
students informational literacy, multiliteracies, and digital literacies (ALA, 2004;
New London Group, 1996; Sorapure, lnglesby, 8 Yatchisin, 1998). The teaching
of digital literacies imbricates the teaching of copyright because it relates to how
one might legally use others” materials, and vice versa (See also Digital Rhetoric
Collective, 2006; Grabill & Hicks, 2005; Henning, 2003; Selber, 2004; WIDE
Research Center Collective, 2005). The American Library Association’s (ALA)
fifth standard is particularly relevant, and encompasses interests of digital and
multi literacies: “The information literate student understands many of the
economic, legal, and social issues surrounding the use of information and
accesses and uses information ethically and legally" (ALA, 2004). Measurable
outcomes for such students include having an understanding of “intellectual
property, copyright, and fair use of copyrighted material.” The arguments that
support teaching digital, informational, and multi literacies also support the
argument that teaching copyright law is important.

More specifically, within R&W, there’s been a recent upsurge in scholarly

attention to how copyright law might shape or inform the teaching of writing in

15

digital writing environments. Back in 1997-98, special issues of Kairos and
Computers and Composition focused on copyright and composition pedagogy.
Even before that, Lunsford and Ede (1994) explored collaborative authorship and
the teaching of writing, laying groundwork for further copyright discussions in the
context of teaching writing. The conversation was continued in the 1997 special
Intellectual Property issue of Kairos wherein TyAnna Herrington explains the fair
use doctrine and its importance to the teaching of writing in online environments.
In her article Herrington argues contrary to popular belief, copyright laws do
apply to digital communication, the public does have fair use rights, and fair use
is necessary in order to protect freedom of speech. In the same issue of Kairos,
in an interview Johndan Johnson-Eilola (1997) characterizes intellectual property
as a social and economic construct existing to maximize profits for capitalists.
Johnson-Ellola was asked during the interview where fair use should begin on
the web, since everything is “published.” The question was as interesting to the
field in 1997 as it is still, and yet the question remains without a clear answer,
even by legal scholars.

Interest and inquiry within composition studies on fair use, copyright, and
the relevance of these doctrines to the teaching of writing was further expanded
in a special issue of Computers and Composition (1998), edited by Gurak and
Johnson-Eilola. In this issue Herrington, Shirk and Howard, Logie, and Walker
discuss — take positions on copyright, fair use and their implications for the
teaching of writing. Herrington connects free speech to fair use, Shirk and

Howard discuss the implications of CONFU (conference on fair use) fair use

16

guidelines on writing pedagogy, Logie reminds us of IP law's history and
connection to developing technologies, calling for teaching of copyright issues,
and Walker argues because the intemet changes what writing teachers do in the
classroom, they should develop theories that show differences and similarities
between plagiarism and copyright.

Recent media coverage of the peer-to-peer filesharing cases along with
the fact 100’s of schools, individuals (including students), and peer-to-peer
software distributors have been sued, has understandably kindled disciplinary
interest. In the context of P2P filesharing and teaching, writing-pedagogy-pieces
have appeared by Porter and Rife (2005), DeVoss and Porter (2006a,b), and
Rife (2006). Addressing R&W teachers, when the US Supreme Court found
Grokster secondarily liable for the copyright infringing behaviors of users of its
software, Porter and Rife (2005) published a short working paper noting case
outcomes and their implications for the teaching of writing. They argue writing
teachers should not show blatant disregard for the law, or look the other way in
the event their students are engaging in obvious copyright infringing activities
since such teacher attitude could be deemed “inducement.” Following Porter and
Rife's (2005) short position paper, the CCCC-IP Caucus began a yearly
publication “Top IP Events,” published on the NCTE website. Porter and Rife’s
(2005) Grokster piece was one of the first included in this collection.

DeVoss and Porter (2006b) continue the conversation, noting how digital
writing and the P2P filesharing cases have changed the nature of writing and

impacted how to teach use of other’s materials. They urge the development in

17

composition pedagogy for a theory of digital ethics. Consideration of authorship,
origin, and giving credit where credit is due are what DeVoss and Porter consider
the core values of digital ethics. “Our role then, is to provide students—and each
other—with scaffolding so that they understand fair use practice and engage in
ethical relationships with the work from which they are borrowing” (p. 199). Note
in an earlier piece, Porter (1997) argues if the law is unethical to follow, we can
break it. Logie (2005) addresses Porter’s argument, stating that if we are going to
engage in civil disobedience it needs to be organized and public so our behaviors
aren't mistaken for ignorance, or even worse, active theft.

Also in the context of P2P filesharing, Rife (2006) reviews major P2P
cases occurring over the last ten years and their implications for writing
instruction, arguing that R&W teachers should continue their scholarly work in the
area of IP and pedagogy. Wakefield (2006) reminds readers of the need to
attend to issues of ethical and legal use of other’s materials in her instmctional
note on using music sampling in the classroom. She reviews basic copyright law
with respect to musical recordings, and unpacks the ways in which such texts
can be protected (and thus infringed) by copyright.

Westbrook (2006) recently made an important move by connecting visual
rhetoric and copyright in a very pragmatic context - a student whose multimedia
piece was unable to be published since the requisite permissions were denied by
the copyright holder. Pointing to the missing student piece in his article,
Westbrook writes that copyright affects composition teachers and students “on

the level of daily practice”; copyright law threatens to silence both teachers and

18

students (pp. 477-478). The author suggests using Lessig’s Creative Commons
licensing as an immediate practical solution to the copyright problem. Westbrook
is currently working on an edited collection, Composition & Copyright, to be
published in May 2009 by Suny Press.

Another argument regarding pedagogy appears in Logie’s (2005) work,
where he provides a broad overview of copyright laws (including a bit of history),
and argues for the importance of teaching copyright in technical communication.
Lunsford (1999) and Robbins (2003) combine feminist-rhetorical theory with
discussions of intellectual property. Lunsford’s concern is with corporate
authorship; Robbins argues as we try to understand intellectual property, we
should look at cases and issues of authorship Involving women’s ways of making
knowledge particularly via collaboration. Her example is the origination of
Americanized versions of British writer Anna Barbauld’s 1778 primers, Lessons
for Children.

Reyman (2006) argues for teacher awareness and even activism, but with
respect to the TEACH Act. She notes the Technology, Education, and Copyright
Harmonization (TEACH) Act of 2002 was developed to update copyright law to
accommodate the uses of copyrighted materials in distance-education
environments. And yet, pursuant to her analysis of the TEACH Act and its
implications for teaching writing, the act fails to offer the same protections for
online teaching as it offers in face-to-face environments. She argues the TEACH

Act provides an opportunity for faculty and their institutions to become more

19

involved in the conversations about copyright, and even to influence law and
policies.

In Logie’s (2006b) short position paper, he argues copyright instruction
should have a central place in the writing classroom. He states a 1790’s US view
of copyright explicitly stated the “importance of scholarly access” (p. 1). Copyright
law was originally invented to assist Ieaming : “And we, as educators, have failed
in our obligation to embed this simple fact in the public’s consciousness” (p.1). To
address this problem, Logie urges us to make “copyright a point of focus within
[our] pedagogy" (p. 2).

In A legal primer for the digital age (2003), Herrington offers a short
textbook covering a wide range of laws as relevant for technical communicators
in everyday practice. The text contains a section on intellectual property issues,
where Herrington notes copyright law is applied in conjunction with other laws,
formal registration is not needed, and she discusses basic work-for-hire issues.
In Controlling voices: intellectual property, humanistic studies, and the lntemet,
Herrington (2001) focuses on how intellectual property law impacts educators
including those in rhetoric and technical communication. Finally, this area of
scholarship is expanding. Danielle Nicole DeVoss, Shaun Slattery, and l are
working on an edited collection: Copy(write): Intellectual Property in the Writing
Classroom. Shaun’s involvement here is key because at DePaul University he’s
developed a graduate level course on copyright for students of new media. Our
collection focuses specifically on pedagogy and copyright, and builds upon

Westbrook’s forthcoming collection. All of the authors listed in this section argue

20

copyright law should cause writing teachers to reflect on and revise their
curricular decisions and pedagogies.
Field-sgecific Arguments in IP Contexts

Researchers in this category explore IP issues and how those issues
shape the construction of knowledge. They might also conduct rhetorical analysis
in an IP context (but without doing history per se) or simply take a position, other
than a pedagogical stance, on an IP related issue. These researchers also
provide information for the field generally, but not necessarily tied to pedagogical
concerns. In 2000, for example, the CCCC lP Caucus published its three page
fair use statement, “Use your fair use: Strategies toward action,” in College
Composition and Communication. This wasn’t so much research, as a call for
awareness in the field.

As early as 1977 an entire issue of lEEE Transactions on Professional
Communication was devoted to exploring copyright and the possible impact of
the new 1976 copyright act on professional communication. Numerous articles in
the journal discussed implications of the new copyright law on dissemination of
scientific journals, library copying, computer use, and educational use of
copyrighted materials. A section in the journal was devoted exclusively to fair use
(pp. 190—194). In 1978, the same journal provided an article on “How to apply for
copyright registration” under the new law. In the following year, lEEE
Transactions on Professional Communication (1979) devoted an entire issue to

patents and their relevance to scientific and technical communication practices.

21

Durack’s (2006) recent piece discusses the relationship between patent
systems and the peer review process in order to illustrate how university patent
activity influences the production of scientific knowledge. She points out as
current trends continue, the researcher must acknowledge the presence and role
of the patent system on the creation of scientific knowledge; her research signals
directly to the increased need for technical communication scholars to attend to
these issues. In Selber’s (2006) short position paper, “Beyond Napster".
institutional policies and digital economics,” using the context of Penn State’s
contract with Napster for use of commercial, legal music file sharing applications,
the author encourages ambitious examination of institutional policies on
academic computing.

Another recent publication in this category is Logie’s (2006a) book, Peers,
pirates, and persuasion. Logie uses rhetorical theories of Mailloux and Burke
(among others) to examine the criminalization, theft, piracy, sharing, and combat
metaphors in the P2P filesharing controversies. Like Westbrook, he makes
connections to visual rhetoric but does so with a different focus. Rather than
focusing on implications for teachers and students, Logie conducts a rhetorical
analysis, illustrating how rhetoric is useful in understanding these events. He
discusses rhetorical turns taken by P2P fllesharing services and other
stakeholders as they developed ethos in part through the visual.

On the topic of law, ethics, and technical communication, Gurak (2005)
gives a broad overview of ethical considerations for technical communicators as

such considerations overlap with legal issues. In her overview of issues such as

22

protection of privacy, technical accuracy, and whistle blowing, she also briefly
discusses copyright and fair use as sometimes raising issues of ethics as well as
law. Hennig and Tjarks-Sobhani’s (2004) collection of writings from
representative technical communicators wortdwide, makes clear laws and legal
liabilities are a concern for technical communication, globally. Juillet (2004), a
practicing attorney, recently published a piece in Intercom touching on legal
liabilities that might crop up by web publishing. Domain names, trademarks,
notices and terms of use, privacy policies, and copyright are all discussed. Porter
(2005) focuses on intellectual property issues as he calls for technical writing
teachers to address their roles in public advocacy.

Looking briefly outside our field to work often cited by R&W scholars, in
Code and other laws of cyberspace (1999), Lessig discusses architectures made
of code, regulated by law, and shaping human behavior. The telephone network
and AOL are two (of many) examples Lessig uses. In The future of ideas (2002),
Lessig argues the battles being waged over information and the intemet are
battles between the old and the new. Creativity and invention build upon the past.
The past always tries to control the present, but in free societies, the power of the
past to control is limited. If information is locked down, then one can’t incorporate
that information into a collage, a remediated text, a parody, a story, or any other
form of invention. In Free culture (2004), Lessig argues fair use is overburdened
because post 1978, all fixed works are automatically copyright protected, and fair
use wasn’t designed to withstand such a burden (since almost every use is

regulated, any use is either copyright infringing, or rarely “fair use”). Litman’s

23

book (2001) traces the recent history of our current copyright controversies. She
discusses events leading up to the enactment of the DMCA. In Copyrights and
copywrongs Vaidhyanathan (2001) provides broad background and histories
regarding the current copyright debates. In his second book (2004),
Vaidhyanathan takes the position anarchy (as in defying authority) in the context
of copyright law might be a good thing.

Legal scholars Scassa (2004), Tabatabai (2005), Vaver (2004), and
Gervais (2004, 2005) all write on comparison issues of copyright law, fair dealing,
and fair use between Canada and the US (although they often refer to other
countries” laws as well). These pieces provide particularly helpful points of
contrast to facilitate a better understanding of the US fair use doctrine. A number
of legal scholars focus on educational fair use. Silberberg (2001) discusses
educational fair use generally, and argues educational fair use should be
preserved and be given breadth in court interpretation. Bartow (1998) and
Brandfonbrener (1986) discuss educational fair use and photocopying. Duhl
(2004) focuses in on the fourth factor, market impact, of the fair use analysis,
arguing the fourth factor is likely the most important factor in court Interpretations.
Barker (2005) covers fair use in light of the DMCA. Balkin’s (2004) piece, “Digital
speech and democratic culture,” discusses fair use and preservation of free
speech - his argument connects well to Herrington’s (1997, 1998) focus. Katz
(2006) notes the huge impact Creative Commons licenses might have on our
culture. He takes a critical view of CC licensing, noting how when an author

selects a license for her work, conditioning future uses on certain specificity, as

24

time passes and others use and license, use and license, certain conflicts can
develop in the licensing scheme.

David Nimmer (2003), a leading intellectual property scholar, conducted a
study on copyright cases decided between 1994 and 2002, and found 90% of the
time, if three of the four factors are found in favor of fair use, fair use is affirmed.
One cannot generalize his findings though, because he did not randomly select
the 60 cases he examined, nor did he analyze all reported decisions. Overall, of
the 60 cases he examined, 24 upheld fair use and 36 denied it (pp. 269-277).
Nimmer also analyzed percentage correspondences between each of the four
factors and a favorable determination with correspondences ranging from 42%
correspondence to factor two, and 57% correspondence to factor four, in the
context of overall favorable findings. He states across all four factors, there is a
51% correspondence to a favorable legal outcome. It would be useful to replicate
his study using more controlled methods and a concrete coding scheme that is
repeatable.

Discussions of Authorship and Copyright

In addition to scholarship directly addressing the copyright problem,
scholarship focused on authorship has interesting intersections with copyright
discussions. One key argument is that legal studies and “literary” studies should
unite (Bowrey, 2005; Woodmansee 8 Jaszi, 1994). Translating “literary” studies
to include TPW (often situated within English Departments) arguments
supporting intersections between writing studies and legal studies provide a

space for my study. The two disciplines fit well together because writing studies

25

cares about authorship, and copyright law provides a legal definition of “author”
and legally assigns rights to that entity. For example, in order for an artifact to be
copyrightable under US law, it must be “original” (Copyright Law, Section 106).
“Originality" is at the essence of our concept of “author” and his sole creative
genius. Ultimately, if I am studying intersections of copyright law and writing, then
I am in fact studying authorship, and asking: “What is an author"?

Of course, a discussion on authorship would be incomplete without
referring to Foucault’s (1984) classic piece, “What is an author?" I’ve seen this
piece cited widely in both legal studies and R8W. Upon entering my study, I
briefly referred to Foucault and cited this piece in my initial literature review,
especially because it laid the foundation for work by Woodmansee and Jaszi
(1994). However, as my data analysis progressed I found Foucault’s theories
about law and authorship become increasingly important to my work. Foucault,
after all, is The Theorist who wrote about both law and authorship (yet he did not
fully connect these two domains) — and it turns out his work became central to
mine. As the chapters unfold, I return to Foucault again and again. Here, I briefly
summarize his work in the area of “authorship" via his classic piece referenced
above.

Foucault (1984) argued the “author" was an ideological production, a
function of discourse. Since I examine authorship (this naturally happens when
one simultaneously examines copyright law and writing processes) in this study, I
draw upon Foucault’s theory of the author-function. I examine authorship in the

sense copyright laws and even licensing schemes like creative commons, look to

26

protect a form of authorship. True, it might not be the original author that is
protected, it might instead be someone the original author has assigned or who
has somehow inherited authorship. In the survey I examine aspects of authorship
like “chilled speech,” and interest in copyright law, etc. I also look at authorship
fiom the point of view of interviewees who authored web compositions. And I
examine how these interviewee-writers have drawn upon, appropriated, or
synthesized the work of other authors, outside themselves. Therefore authorship,
what it represents, and the sociocultural functions that produce it are a central
theme In this study thus my need to draw upon Foucault (even though he was
neither an R8W scholar nor a scholar in legal studies).

While Foucault (1984) argued the author was a function of discourse,
Rose claims the author is a proprietor and originator as well. Rose (1988) points
to the lack of scholarly exploration as to how legal-economic and aesthetic levels
of discourse interact or impact each other. Woodmansee and Jaszi’s (1994)
collection, The construction of authorship: textual appropriation in law and
literature, brought together legal scholars and literary scholars to examine the
issues raised by Rose with respect to authorship, collaboration, originality, and
copyright. In 1995, Martha Woodmansee, an English professor, and Peter Jaszi,
a law professor wrote an article published in College English, “The law of texts:
Copyright in the academy.” Here the authors argue for reunification of legal and
literary studies, and for opening of conversations (that they state were present in
the 19th century). They discuss the author-function via Foucault along with

current notions of fair use and its interpretation. Similarly, Bowrey’s (2005) book

27

Law 8 intemet cultures, makes connections between literary and legal
discourses, in the spirit of work by Woodmansee and Jaszi as well as Rosemary
Coombe (2002, 2005). Bowrey, an Australian law professor, examines the law in
the context of legal culture, and especially looks at how US law, practice, and
culture has influenced technology law on the global level.

Like fair use and copyright, the doctrine of plagiarism is concerned with
how another’s materials might be used and a discussion of scholarship on
authorship would not be complete without mentioning work on plagiarism.
Discussions complicating the teaching of anti-plagiarism often intersect with
copyright issues. DeVoss and Rosati (2002), Howard (1995, 2000), Klausman
(1999), Domsrife (2006), DeVoss and Porter, (2006a), and Rife and DeVoss
(200X) all provide examples where plagiarism and copyright intersect in one
conversation. DeVoss and Rosati (2002) provide a framework for discussions of
plagiarism and copyright as they share teaching stories illustrating how students
today are unable to understand “plagiarism” without having the term
contextualized in the framework of larger intellectual property issues. Howard
(1995) reviews various theories of authorship and positions on plagiarism,
dividing plagiarism into three categories, cheating, patch writing, and non-
attribution. In a later piece, Howard (2000) argues plagiarism is a complicated
concept defying definition. She asserts that perhaps the term should be
discarded altogether. She also states plagiarism operates without an ethic but
under a moral basis that is a function of community membership and reading

comprehension. Klausman (1999) continues this conversation by noting the

28

intemet changes how anti-plagiarism should be taught. He states plagiarism is of
three types: direct, paragraph, and patchwork. Klausman notes most students
are not aware cutting-and-pasting is considered plagiarism. Domsrife (2006)
notes how the intemet and digital copying has changed the meaning of “copy"
since every copy now has the same quality as the original. He argues we should
stop focusing on plagiarism and instead focus on encouraging synthesis. DeVoss
and Porter's (2006a) recent position paper follows-up on the argument the
intemet changes how we might teach and perceive anti-plagiarism in light of
remix culture. They argue in favor of teaching an ethic of fair use, a thread which
is built upon by Rife and DeVoss (200X). In Rife and DeVoss (200X), the authors
first discuss how remix culture complicates traditional understandings of
plagiarism, and also adds copyright considerations into the mix of pedagogical
considerations. They then compare and contrast plagiarism and copyright. Rife
and DeVoss (200X) create a very clear opening in composition studies for further
discussions of how copyright and plagiarism intersect as relevant for writing
teachers. These kinds of scholarIy conversations have also been present in legal
studies for quite some time (See Billings, 2004; Dursht, 1996; Green, 2003;
Steams, 1992).
Empirical Studies in IP Contexts

Researchers in this category do their work by systematically gathering
data in a way that can be replicated and have written it up as such. Empiricism is
a complex and contested concept, but my use of the term is defined simply by

James Kinney (1979):

29

Empiricism is the way of knowing through the senses, through
direct, physical experience. As a mode of inquiry, it goes back to
Aristotle’s concept that we come to know essences by the process
of abstraction, inductively moving from particular sense data to a
knowledge of the form within the object. (p. 352)
Since only two known R8W empirical studies on IP exist, we need to glance
elsewhere in R8W for ideas on what this might look like, had it been done. The
first empirical study, while not focused exclusively on IP, culminated in a recent
book published by tecom, Technical communication international (Hennig 8
Tjarks-Sobhani, 2004). The researchers sent out a questionnaire to technical
communicators across the world. One of the questions asked technical
communicators about their legal-writing concems. The results found the
intersection of law and technical communication is a general concern for both
practitioners and academics. Technical communicators voice concem for law
related issues such as the increasing amount and complexity of laws,
repercussions for not understanding laws, quality and usability of technical
documentation versus legality, and laws not applying uniformly. In the second
instance my pilot study, “Is there a chilling digital communication?” used survey
and interview methods to examine how understandings of copyright law and fair
use shape student and teacher web writing in a professional writing program
(Rife 8 Hart-Davidson, 2006). We found certain gaps in knowledge existed
among both students and faculty, but that both thought knowledge of copyright

and fair use was important. The study also used interviews and collected student

web compositions, exploring rhetorical invention in copyright-imbued digital

30

environments. From the interviews, we found copyright law functioned as a sort
of design heuristic.

Five additional studies were conducted exploring issues closely related to
IP and composing (Hobbs, Jaszi, 8 Aufderheide, 2007; Fisher 8 McGeveran,
2006; Heins 8 Beckles, 2005; Renner, 2002; Sweeney, 2004). Three of these
studies (Heins 8 Beckles, Renner, and Sweeney) used survey instruments.
However, none of the survey instruments or the studies use a rhetorical lens, and
all of the surveys could be improved to be more valid and reliable. Additionally,
while all of these studies inform inquiry into IP and composing, all of them left
certain gaps in the research and/or used loosely constructed methodologies,
disallowing generalizations to a larger population. In “The cost of copyright
confusion,” Hobbs, Jaszi, and Aufderheide (2007) found copyright law,
particularly fair use, provides broad protection for folks working in education.
However, due to participants’ lack of knowledge and understanding about the
law’s protections, their ability to share, teach, and have students produce media-
rich texts was severely circumscribed. Not only that, but the researchers found
teachers’ lack of knowledge was passed on to students as well as colleagues,
perpetuating “copyright folklore” that often sees the law as much more restrictive
than it is.2 ln Heins and Beckles’ (2005) study, “Will fair use survive,” they
examined whether the fair use doctrine is facilitating artists’ “speech” via their
creations (or whether their speech is chilled due to fear of copyright liability).
Heins and Beckles explicitly admit their study is not scientific. Survey methods

were included in the overall design, but the survey was maintained by being

31

posted to a webspace for a year and was advertised through artists’
organizations (possibly skewing the results).3

Both the Renner (2002) and Sweeney (2004) dissertations examined
knowledge levels of educators for purposes of discerning what basis teachers
used to construct online course materials. Both used surveys and appear to have
carefully thought-out “scientific” methodologies. Yet, neither of these studies
examined certainty of knowledge, and neither examined the understandings of a
key population - students of technical communication who will enter and impact
wider communication audiences. Neither study examined how and whether fair
use and/or copyright is taught and understood in the classroom in web
composing contexts, and neither study used a rhetorical lens.4 The Fisher and
McGeveran (2006) study “The digital Ieaming challenge,” gathered data from
informal case studies, and a two day workshop where numerous representatives
of major universities and organizations in the US gathered to discuss the impact
of copyright restrictions on educational settings. The study found publishing
companies are currently pressuring research one universities to constrict the
dissemination and production of digital materials, and that 80% of universities
have adopted copyright policies are more restrictive than what “fair use” allows
(See Cornell University’s [2006] new copyright guidelines for electronic content).
How fair use is used or not used in educational contexts likely impacts the
communication practices of larger populations, and yet none of the existing

studies have explored these issues.5

32

Of course, the more general PEW (2005) research is ongoing, and
provides helpful reports and data that generally informs further inquiry into
connections between copyright and writing practices. The PEW lntemet and
American Life Project reports are numerous and provide recent trends in online
usage, and how online use has changed over time. The project site contains 15
pages of reports, including reports on certain user activities (pod casting, taking a
virtual tour), and reports on the status of certain online uses (E-govemment,
gathering health information, using the web community to get through major life
events). A recent report dated November, 2005 states by age 17, most teens
have created content for the web such as web pages and blogs, and most think
obtaining free music online is easy (Teen Content, 2005). In addition to finding
while most teens who downloaded music knew the music was copyrighted but
did not care, the reverse was true for bloggers. Bloggers were more concerned
about the copyrighted nature of materials they used, and the majority tried to stay
within the law.6

Renner (2002) and Sweeney’s (2004) dissertations both examined faculty
levels of copyright knowledge, but they did not examine this in the context of
writing instruction, and they did not examine student knowledge, nor the impact
of copyright issues on student composing practices. The PEW study (2005)
explored attitudes about using infringing material but not in an educational setting
nor with respect to teaching. Researchers connected to “The cost of copyright
confusion” study interviewed 62 teachers or others about their understanding and

practice regarding fair use, but the important student population was not

33

included. “The cost of copyright confusion” did not focus on writing processes
and so is less helpful to folks in R8W than it might be othenlvise. The Berkman
research (2006), “The digital Ieaming challenge,” examined negative effects of
current copyright law, while the Heins and Beckles (2005) study looked at
whether fair use and other intellectual property laws were protecting creativity
and speech.

All of these studies provide useful information and inform my inquiry, but
none of them speak directly to the issue I wish to explore. If, as the PEW teen
study indicates, most teens are creating content for the web before age 17, then
copyright law is implicated. These same kinds of students are often in technical
writing courses, where they are required to create content. None of these studies
explore the level of knowledge or meta-awareness student-authors have when
writing. None of the studies particulariy focused on the writing process in digital
environments, which is what I do in my study. While composition studies and
technical communication provide a long history of scholarship urging the field to
tend to issues of copyright and fair use in the writing classroom, no empirical
study has yet emerged within the field addressing our current state of affairs.
Because of gaps in the research, I was compelled to conduct this study.

In addition to examining empirical IP studies, it’s also useful to look at
other types of studies in R8W that relate to mine, but are not necessarily about
IP. Since I examine writing processes, rhetorical invention is germane. Yet,
rhetorical invention as Haller (2000) points out, is erased in a final written

product. Haller (2000) studied rhetorical invention’s interactions with design

34

heuristics in a study of 29 upper-level computer science majors at a mid-size
technological university, although this work was not about IP. However, recall in
the introductory paragraphs to this chapter, as I described the four factor fair use
test I stated this test functioned like a legal heuristic. I discuss the role of
heuristics in decision making-processes, like web writing, in the next chapter.
Haller (2000) acted as a non-participant observer of one student team as they
designed a resume system and accompanying documentation. Some of her
methods and theory might inform empirical IP research in R8W, as might any
R8W research on composing processes. Examples that might be useful are
studies on composing processes by O’Dell, Gosawami, and Herrington (1983)
and their use of discourse-based interviews or studies by Flower and Hayes
(2003) who employed the talk-aloud protocol.

Using Rhetoric Theory to Design an Empirical Study on Copyright and
Digital Writing

In this chapter I’ve outlined my research questions, defined the applicable
law, pointed to problems raised in educational-writing contexts, and reviewed the
relevant literature that already exists in the area of intellectual property and
(digital) writing. In Chapter Two I discuss in detail the theoretical frame for my
inquiry. I rely on rhetoric theory and activity theory. I briefly justify my use of
rhetoric theory here but develop this justification in Chapter Two as well as
Chapter Three, Research Design. IP issues are especially appropriate to
examine with rhetoric because IP laws are formal systems of invention, and
McKeon (1987) and Haller (2000) suggest “all systems of invention . . . are

ultimately organized by rhetoric . . . Aristotle’s art of forethought governs both

35

[rhetorical invention and design] processes” (Haller, 2000, p. 356). The US “legal”
system of invention exists in codified laws governing copyright, patent,
trademark, and trade secret, and as such is organized by rhetoric. This system of
invention embeds itself into rhetorical invention and the texts subsequently
produced (as suggested by Bazerrnan and Brockmann): “invention . . . requires
not only the generation of ideas but also their selection” (Haller, 2000, p. 367).
Depending on the findings of this study, implications might include creating
curricular recommendations for R8W professional writing programs and
pedagogies. The study hopes to add something to our understandings of
rhetorical invention as it intersects with copyright issues. Pragmatically, I hope
the survey instrument might be useful to other disciplines for other, comparative
measures, in that the survey results may provide a point of initial comparison for
other populations. This study extends the work of Durack (2006) by making
another small start towards connecting how systems of law shape the production
of knowledge via writing. What are the connections between formal systems of
invention, like copyright law, and informal systems of invention, like design
heuristics?

While the existing R8W lP research uses rhetoric to examine history in IP
contexts, looks for use of rhetoric in historic documents, connects issues of
copyright to the teaching of writing in digital environments, has touched on how
IP systems shape knowledge production, has examined connections between
authorship and copyright, and generally informs the field of relevant IP

happenings and issues, almost none of this work provides empirical IP related

36

research relevant to R8W. Empirical research at the intersection of IP, rhetoric,
and composition is needed in R8W. Examining a finished text alone (by way of
hermeneutics, for example), will not yield results that might explore these
inquires, because as Haller points out, the rhetorical arguments informing
composing choices that take place before the finished product emerges, are
“stripped” out, “lending the text an apparent objectivity that obscured its rhetorical
origins” (2000, p. 354). As rhetorical considerations and design heuristics overlap
(Haller, 2000), so do rhetorical considerations and copyright law because like
design heuristics, copyright is a system of invention “organized by rhetoric.” A
body of scholarship in R8W has focused on IP; but little, or none, has focused on
connecting IP and rhetorical invention, and no R8W research has gathered
empirical data in the realm of IP, to inform theory building in R8W, or to inform

our writing pedagogy discussions.

37

CHAPTER 2

“100 DIFFERENT PIECES” AND RHETORICAL INVENTION:
UNDERSTANDING THE LAW’S INTERSECTION WITH DIGITAL COMPOSING

“The source for a metatheory of rhetoric cannot be found in rhetoric itsel
(Janice Lauer, 1970, p. 39 7)

In the previous chapter I established and discussed the problem of digital
composing in copyright imbued environments and examined studies that have
raised certain issues and generated various findings with respect to the copyright
problem. I outlined my research questions as well. In this chapter I provide a
theoretical framework for understanding both the nature of my inquiry as well as
the study design. In the next chapter (Chapter Three) l carefully outline the study
design and provide the reader with my rationale. Chapters Four, Five, and Six
provide data analysis and implications for digital writing, teaching, and Ieaming.

As I discuss in the next chapter, I use a survey, collection of webtexts, and
interviews with digital writers (students and teachers in TPW) in order to probe
writers’ thoughts, reasoning, and motivations for their own composing choices in
light of copyright law’s implications in webspace. These thoughts, reasonings,
and motivations can also be characterized as rhetorical invention, and that’s the
conceptual frame I use in this study. I also explore writers’ knowledge and
understanding of copyright law in the context of digital writing. Before I launch
into a discussion of my blending of rhetoric theory and activity theory as it
pertains to my inquiry, I discuss the webtext as a site for rhetorical invention, a

space where copyright issues are raised, and a practice that challenges our

38

current understandings of authorship. Next, I explain rhetoric theory’s connection
to the copyright problem, followed by a justification for my use of activity theory
and how I’ve blended that with a rhetoric-based notion of heuristics.
The Webspace as Commonplace: Rip, Mix, Burn

How might we connect traditional discussions of rhetorical invention to
web composing contexts? I’m going to discuss this briefly here as a justification
for my use of theories on rhetorical invention in the context of digital writing.
Rhetorical Invention is theorized as central to traditional composing processes.
Looking to rhetorical invention’s roots in classical rhetoric and importance in
composition studies, according to Young (1978) classical invention is the “first in
importance and the first art used in the composing process” (p. 36). But how
might contemporary theories of remix (digital writing) culture intersect with more
traditional notions of rhetorical invention? The common digital composing
processes of cutting, pasting, and remixing hold both the novelty and discovery
senses of rhetorical invention as discussed by Miller (2000). A location where the
new and existing, the past, present, and future come together might be called a
commonplace in rhetoric studies. The commonplace is a site of rhetorical
invention. McKeon (1998) sees commonplaces as places where the familiar and
the unfamiliar can be brought together, where exploratory combinations of the
new and the existing can take place. Figure 2.1 is an example of the digital
commonplace, a screen capture taken from a research participant's web

composition. Let’s call her Leslie.

39

Leslie was one of the student writers selected for an interview. As I explain
in detail in Chapter Three, my research design includes the collection of webtexts
from digital writers in my population, followed by interviews. I limit these writers to
self-defined students because I believe they’d be creating lots of different kinds
of web compositions compared to professors who might be more bogged down
writing traditional peer reviewed journal articles and book chapters. Prior to
Leslie’s interview I collected from her a web composition which then framed my
questions. My purpose here is simply to illustrate how the webspace lends itself
to remix writing, serves as a commonplace (a location of rhetorical invention),

and often triggers copyright issues.

wine
II

 

 

GUM PM Baal“: Overview FAQ
m3? “Him .._ Q: Why we are studying video games In writing class?
5m 2007 - A: Perhaps a better would be why doesn’t everyone

question
; study video games in writing class? After all, the vldeo game
industry is HUGE - global game software sales totaled more
than $10 billion last year. That’s more money than Hollywood
_ : -- makes! But. more importantly for us. when we play flames we
' engage in complex cognitive processes and
1mm" . sophisticamd literacies that writing teachers con only dream of
' " teaching. We all have a lot to learn from studying video
' L m”-

Q: But aren’t video games sort of non-academic?

 

 

A: Not at all. Video game studies has become an important

FIGURE 2.1. Screen Capture from Leslie’s Interview.

40

Leslie is a PhD candidate teaching first year writing at a doctoral university
as she completes her degree requirements and enters the job market. The
webtext depicted in Figure 2.1 is the course web page Leslie creates for her first
year writing students. She’s interested in using a theme for her writing course
that might draw upon her students” interests while simultaneously involving the
study of digital writing. Leslie said, “I wanted to have a cool site for them, when
they first signed up.” In her web writing, Leslie plays the roles of graduate
student, teacher, and potential employee-job seeker. This webspace serves the
pragmatic function of housing teaching materials, incorporating work Leslie did
as a graduate student, and also showcases Leslie’s web design abilities and
innovative pedagogies for potential employers. The gaming control and visuals
were blended together by Leslie in a graduate visual rhetoric course, where she
received feedback and even a grade from her professor. By the time Leslie
taught this course though, the gaming control visual as a graduate course project
had detached from its origins and was acting simply as a teaching and marketing
tool for Leslie. By considering Leslie’s multiple audiences, and how she
fashioned this webtext over a period of time (more than one year) and with
multiple underlying motivations illustrates the commonplace at work — a place of
convergence of the past (graduate student), the present (graduate teaching
assistant), and the future (faculty member at new institution).

On a very practical level, the webtext shown in Figure 2.1 illustrates a
commonplace from the point of view of remix writing, by bringing together the

familiar with the unfamiliar. Leslie explains the complexity of the visual:

41

We’d just learned Photoshop that semester and l was playing with
my new knowledge of Photoshop and doing cool things. So, it's
made up of like 100 different pieces. The major part of it is a play
station portable; the console there, and then what I did was I took
the part where you'd normally see the video game, and I replaced it
with this composite image of my own, the name of the class, and
the font used where it says the name of the course there, is actually
a font developed for a particular game, grand theft auto. It's called
price down. It's a font they made for that. So I replicated that and
did my course title with that name, and then it's divided up into
different pieces. I got that idea from, I saw it somewhere else.
Somebody had a book cover that had like little pieces divided up
into little frames, sort of almost like stained glass, and I wanted to
do something similar. And so what I decided to do for that was, the
emphasis in my class was going to be not on games themselves
but on how people use games, so, all but the final corner image
down here, all those images, the rest of the images, were actually
people's photos I found on flickr.com, I searched for video games,
and I got pictures of real people playing video games, and then I
cut out just the people that I wanted. I mean just the parts that I
wanted. I traced, cut out the people, and I ran them through some
kind of filter to make it look funky like they do. They look kind of
stylized, almost like video games, and then I assembled them into
these little frames, and put them in there, the ah, like, I said the only
image here, that is not of real people is the lower left hand corner.

Leslie had taken things familiar to the students, a game control, game fonts, a

look of “stained glass,” people playing games, a portable play station, typical web

page navigation elements, an image of notebook paper, a posting of office hours,

and then blended that together with the newness of a new college course, an

unfamiliar medium for a syllabus, unfamiliar connections of games to formal

education, an unfamiliar combination of game control and web page navigation

links, and brought all of these images and allusions into a new light. This is the

commonplace, the digital remix. And it triggers all kinds of copyright issues.

Fonts can be copyrightable and usually are in the context of gaming and

branding; gaming control designs are copyrightable. All the visuals Leslie took

42

from flickr.com may well have copyrights owned by others. Leslie did all this
without permission. She was far less worried about copyright than about
protecting peoples’ privacy, especially the younger individuals featured playing
games. That was one of her main motivations for applying the filters in
Photoshop. She said, “I wasn't really worried about copyright. I didn‘t think
anyone would come after me for taking their flickr pictures.” She did say she’d be
more careful about using these materials to make her remix if she was going to
sell this image for a profit. But in the context of educational use, “I think for not for
profit, for educational purposes I think that would be pretty low on anyone's list of
priorities for anyone to come after me about it.” What this interview combined
with Figure 2.1 show are how the webspace as commonplace triggers rhetorical
invention and begs for an examination of whether copyright is influencing writerly
decisions.

Leslie was one participant who was least concerned about copyright — the
law did not stop her from inventing and being creative. She’d concern herself with
copyright only if it was easy to do so and still accomplish her pedagogical and
creative goals. For example, when asked about the possibility of posting
copyright protected articles and teaching materials in an open webspace as
opposed to a password protected one, Leslie explained:

I probably would, if that was the easiest thing to do. I would worry a
little bit about copyright violations, but you know I would weigh that
against what my options were. If I had an easy option to make it

password protected I would do that but if I don't have an easy
option . . .

43

Here we can say that Leslie is exercising prudence. “Prudence is the virtue that
makes us choose the surest and least onerous means of arriving at our ends”
(Perelman, 1967, p. 18). In this case, Leslie made this web composition her own
by cutting, pasting, applying filters, adding text, synthesizing her own
interpretations and ideas with others” materials. In Leslie’s case, it turned out her
inventional decisions were made to protect peoples’ privacy, for design reasons -
to intrigue her students, rather than to abide by copyright law. Leslie takes the
old, and turns it into the new.

Lawrence Lessig (2004) characterizes the legal battles over copyright
law’s reach to webspaces to be a battle between old and new. He acknowledges
the intemet facilitates remix culture, where creativity and invention build upon the
past. If information is locked down, he argues, creativity is stifled: “Free cultures
are cultures that leave a great deal open for others to build upon; unfree, or
permission, cultures leave much less. Ours was a free culture. It is becoming
much less so” (p. 30). Lessig lists 17 movies where Disney, Inc. took stories in
the public domain and “retold them in a way that carried them into a new age” (p.
23): “In all of these cases, Disney (or Disney, Inc.) ripped creativity from the
culture around him, mixed that creativity with his own extraordinary talent, and
then burned that mix into the soul of his culture. Rip, mix, and burn” (p. 24). And
Disney did this of course with the assistance of emerging technologies. Lessig’s
description of technology’s ability to allow us to rip, mix, and burn is in the
abstract, the same ability enabled by the commonplace. (You will find this easier

to understand if you imagine the “commonplace” as a technology or technique,

an art of doing). Remixing in digital environments illustrates a commonplace at
work. A commonplace is a common place because it is: rip, mix, bum. A digital
writer like Leslie, working in a commonplace, brings together and synthesizes the
familiar, creating something new or unfamiliar.
Remix and Authorship

Examining writing processes in the context of digital writing, ultimately
involves examining the webspace as a commonplace where “the author”
emerges as a representation of activities which converge a number of other texts
— via the digital remix for example.7 Recall that in the previous chapter, I referred
to Foucault’s discussion of author which also informs my theoretical frame going
into this study. Note that in “What is an author,” Foucault (1984) discusses the
author in a very limited sense - that of the sole creative genius of literary studies.
Even in this narrow context, Foucault makes the point that the same types of
texts have not always required authors; “there was a time when those texts . . .
were accepted, circulated and valorized without any questions about the identity
of their author“ (1984, p. 109). This notion influenced my understanding of
authorship as I interviewed digital writers. Foucault’s theory might help us
understand Leslie’s decision not to attribute the sources for all the images, the
“100 different pieces” that became part of her visual. She did not even remember
exact locations where some of the gaming visuals originated — although she
knew she herself had not created them. How might such digital composing
practices revise our understanding of “common knowledge”? Where might

“common knowledge” and “commonplace” intersect?

45

The process of selecting and developing content for one’s web
composition is rhetorical invention and also, upon examination, points to the
origins of a text, although as Foucault (1972) states, the absolute origins of
anything is an ever receding point. Yet, we can gain some knowledge by trying to
trace “where texts come from" (Prior, 2004). Prior (2004) explicitly connects
rhetorical invention to the tracing of authorship: “When we see that tracing the
composing of a text, what classical rhetoric termed invention, involved the
contributions of multiple people, it becomes clear that tracing the writing process
also implicates tracing authorship” (Prior, 2004, pp. 169-170). While I imagined
my study as one examining rhetorical invention because invention is so germane
to the remixed nature of digital compositions (germane to an examination of the
deliberations and arguments that underlie writing choices), I didn’t realize until
after I collected data how examining rhetorical invention necessitated the tracing
of authorship, as Prior points out. The lengthy “100 different pieces" quote from
Leslie, provided above, was in response to my question: “Where did you get
this”? In later chapters, I discuss how I came to rely on FoUcault for analysis of
authorship which is by Prior’s (2004) definition, always already an analysis of
rhetorical invention.

Another important point Foucault (1984) made is that the author is not a
single person, but is a “certain functional principle which, in our culture, one
limits, excludes, and chooses; in short, by which one impedes the free
circulation, the free manipulation, the free composition, decomposition, and

recomposition of fiction” (1984, p. 119). You should be able to see clearly the

46

connections between Lessig’s problematization of copyright law and Foucault’s
description of the author-function as a “functional principle” which “impedes the
free circulation” of information (although as stated, Foucault discusses this in the
nanow sense of “fiction” rather than the broad sense of “information”). When the
author is represented as a solitary genius and a “perpetual surging of innovation,”
according to Foucault it means the author-function in that culture works in exactly
the opposite manner: “(When a historically given function is represented in a
figure that inverts it, one has an ideological production.) The author is therefore
the ideological figure by which one marks the manner in which we fear the
proliferation of meaning” (p. 119). Again, I revisit this issue of authorship in
Chapters Five and Six in light of my data. Leave it to say at this point that
Foucault’s description of author and author-function influenced my understanding
of digital composing as I approached each interview. How might his theory of
author-function help us understated writers’ decisions to attribute, take freely
others’ materials, or request permission before using? I also note for future
reference, that because Foucault’s discussion of author-function takes place in
such a nanow literary context, and because of what I saw in the data, the remix,
“rip, mix, and burn" nature of digital compositions, I later turn to actor network
theory (ANT) to develop this idea of author-function more robustly — post-data
collection.
IllIy Theoretical Assumptions Framing This Study

Recall that in the previous chapter I pointed out some have posited lack of

understanding of fair use and copyright are chilling speech (Fisher 8 McGeveran,

47

2006; Heins 8 Beckles, 2005; Hobbs, Jaszi, 8 Aufderheide, 2007; Porter, 2005;
Westbrook, 2006). Yet, this assertion has not been examined empirically within
the field of technical and professional writing (TPW), although TPW holds itself
out as a container for digital writing experts (Carliner, 2003; Hart-Davidson, 2001)
including in the area of copyright law (Bazennan, 1999; Brockman, 1988, 1998,
1999; Durack, 2004, 2001, 2006; Howard, 2004, lEEE, 1977, 1979; Porter.
2005). Both legal studies and TPW have examined the copyright-and-digital-
writing problem from within their respective methodological habitats. But so far no
one has attempted to connect the two fields in order to locate a broader and
deeper perspective on this problem. No one has studied the copyright problem
as a problem of invention rather than a problem of law.

Connecting these two fields might be helpful because there is some
commonality between legal studies and TPW beyond a simple interest in the
copyright problem. As Haller (2000) points out, rhetorical considerations and
design heuristics overlap. Similarly I posit that rhetorical considerations and
copyright law overlap because like design heuristics, copyright law is a system of
invention organized by rhetoric. In this chapter I set forth my assumptions, based
on theoretical justifications discussed henceforth, going into this study. Those
assumptions are as follows:

1. Assumption #1 Rhetorical Invention: Theories of rhetorical

invention support the idea that rhetorical invention is not limited
to providing strategies for how to arrange, draw from, or discover

existing information, but rhetorical invention can also be used to

48

create new, even novel information and generate new knowledge
(Enos 8 Lauer, 1992, Haller, 2000; Lauer, 1970, 1972, 1979,
2004; McKeon, 1998; Miller, 2000; Scott, 1967; Young,1978) .
Thus, rhetorical invention is central to composing processes
(DeJoy, 2005; Haller, 2000; Lauer, 1970, 1972, 1979, 2004;
Young, 1978).

Assumption #2 Heuristics: Heuristics can be rhetorical topics
(Haller, 2000). Heuristics/rhetorical topics generate rhetorical
invention (Haller, 2000; Lauer, 1970, 1972, 1979). Copyright law
like design guidelines, ethical considerations, etc., may function
as heuristics. Since as stated, heuristics can be rhetorical topics,
it follows that copyright-Iaw-as-heuristics can act as rhetorical
topics generating rhetorical invention in the composing process.
Assumption #3 Mediation: Heuristics/rhetorical topics “mediate”
the composing process, and as mediational, act as objects that
stimulate rhetorical invention (Haller, 2000). Therefore, items
which act as heuristics with respect to writing (such as copyright

law) are relevant to discussions of rhetorical invention.

Conducting the study helps me explore the validity of these assumptions and

develop theory that might add to our understandings in this area. As I explain

these assumptions I also provide context for them. Thus, I bring together ideas

from rhetoric theory and activity theory to develop a theory of heuristics, including

knowledge and understanding of copyright law as mediational means in the

49

digital composing processes of writers in copyright imbued environments. First, in
Part One: Rhetoric Theory, I discuss rhetorical invention’s relationship to
heuristics. I then talk about rhetorical topics as heuristics. I end part one by
connecting Lauer’s idea of heuristical thinking to more traditional discussions of
“legal reasoning.” Second, in Part Two: Activity Theory I give a brief historical
overview of AT. I then situate AT in the study of writing in our field. I end this
section by connecting Vygotskian AT to a rhetoric and writing version of
heuristical thinking. I end this chapter with a conclusion where I summarize how
these theories blend together to shape my inquiry.
Part One: Rhetoric Theory

In part one I discuss rhetorical invention’s relationship to heuristics,
rhetorical topics as heuristics, and I end this section by connecting Lauer’s idea
of heuristical thinking to more traditional discussions of “legal reasoning.”
Rhetorical Invention and Heuristics

In this section I am going to discuss how theories of rhetorical invention
support the idea that rhetorical invention is not limited to providing strategies for
how to arrange, draw from, or discover existing information, but rhetorical
invention can also be used to create new, even novel information and generate
new knowledge (Enos 8 Lauer, 1992, Haller, 2000; Lauer, 1970, 1972, 1979,
2004; McKeon, 1998; Miller, 2000; Scott, 1967; Young,1978) . Thus, rhetorical
invention is central to composing processes (DeJoy, 2005; Haller, 2000; Lauer,
1970, 1972, 1979, 2004; Young, 1978). I am also going to discuss how heuristics

can be rhetorical topics (Haller, 2000), and that heuristics/rhetorical topics

50

generate rhetorical invention (Haller, 2000; Lauer, 1970, 1972, 1979). I then
connect this to copyright law considerations in digital composing contexts.
Heuristics and theories of rhetorical invention have been connected for a
long time in our field. Recall that invention is one of the five well known canons of
rhetoric along with arrangement, style, memory, and delivery. There is a
centuries old discussion in rhetoric regarding the import and meaning of any of
these canons (See Howell, 1956 and Kennedy, 1963). Lauer’s connection
between heuristics and rhetorical invention is used to make the argument that
invention serves not just to draw from existing information, but also to create new
knowledge. Young (1978) encourages research in order to extend, test, and
explain existing theories of rhetorical invention as theory rather than as simply a
pedagogical tool. A theory of rhetorical invention could speak to many disciplines
and have transcendency, as Lauer might say, rather than simply being tied to
first-year writing or writing curriculum - as is DeJoy’s (2005) focus. Lauer (1970)
provocatively states this position as follows: “Freshman English will never reach
the status of a responsible intellectual discipline unless both its theorizers and its
practitioners break out of the ghetto” (p. 396).8 Young suggests that theories of
rhetorical invention could inform our understandings of writing in many contexts,
including workplace writing, traditional law school writing, community activist
writing, and so on. According to Lauer (1970), a metatheory of rhetorical
invention might be developed through heuristics. The goal of heuristics or
heuristical thinking is to solve problems and provide methods to examine

discovery processes. She connects Aristotle’s classical rhetoric to the notion that

51

heuristics can be employed not just to select available means of persuasion, but
also epistemically to generate probable knowledge (Enos 8 Lauer, 1992; See
also Miller, 2000; Scott, 1967). Lauer’s discussion of heuristics is important to my
study, because her definition of heuristics maps onto my understanding of
copyright law.

Lauer argues that we should develop theories to evaluate the adequacy of
heuristics, and offers an model for doing so based on whether the heuristics
under examination have:

1. transcendency,

2. flexible direction (provide a “clear sequence of operations”), and

3. generative power (Lauer, 1979, p. 268).
As stated, whether heuristics-as-methods-of-rhetorical invention provide both
strategies to generate new knowledge and select persuasive arguments has
been a matter of dispute. In the 1970’s Janice Lauer and Ann Bertoff engaged in
a scholarly debate on the issue of problem solving, heuristics, and the teaching
of composition. Two decades later, Enos and Lauer (1992) acknowledged that
“although there is no doubt that the meaning of heuristic has grown in
sophistication and importance, its centrality to rhetoric and composition comes as
no new phenomenon” (p. 79). Janice Lauer (2004) documents the debates
among rhetoric scholars regarding the nature of rhetorical invention, its purpose
and epistemology. Her listing of the differing theoretical views on the purpose of
rhetorical invention (“to lead to judgments, reach new insights, locate arguments

to support existing theses, solve problems, achieve identification . . . locate

52

subject matter for texts” [p.3]) fits neatly into the two senses of rhetorical
invention discussed by Carolyn Miller (2000): invention-as-novelty and invention-
_ as—dlscovery.

Although Miller’s discussion of novelty and discovery takes place in a
different context, the context of the hunt, as I will enumerate her argument is very
pertinent to this study for two reasons. One reason is that the issue of novelty
and discovery maps on to like discussions in legal studies regarding patent law
and copyright law. Patent and copyright law overlap in the same way as do
novelty and discovery. Patent law explicitly requires novelty for an item to be
patentable, while copyright law does not. Copyright law privileges
“transformative” use (as producing something new enough to be copyrightable).
In order for a use to be “transformative” it must derive from an artifact that
preceded it; thus the “discovery" element of copyright law. Yet, there is always
overiap and difficulty in defining novelty and discovery. The fact that Miller
discusses ancient rhetorical concepts, and these concepts connect to patent and
copyright law in a very fundamental way, is worth noting for reasons I explain in
my data analysis chapters.

The second reason Miller’s (2000) argument is pertinent is because of our
developing notions of remix in digital composing contexts. What is a digital
composition? What arguments, decisions, and origins underlie the typical
webtext? For example, in Leslie’s webtext depicted in Figure 2.1, she considers a
number of factors as she composes, one of which is copyright law. She states

that her webtext is composed of “100 different pieces.” These pieces were cut

53

and pasted from multiple sources. Leslie could not exactly recall where each
image came from, or where every idea derived. In the context of webspace as
commonplace, how might our understandings of authorship change due the
changed nature of writing in the 21“ century? These are huge questions that I
hope to speak to in my data analysis chapters. In other words, it appears that our
most ancient theories of rhetorical invention might provide understandings of
contemporary “remix.” Miller’s discussion of discovery and novelty reminds me, in
the abstract, of Lessig’s discussions of remix culture. In rhetoric theory, the
question is whether rhetorical invention includes the discovery of existing
information, or is it a generative act of insight, originality, and novelty? My
position here, deriving from conceptions far before Lauer’s, is that it can be both.
The Latin and Greek verb “invent” originally held the sense of both novelty
and discovery; The Aristotelian concepts of topos or topics and commonplaces
as interpreted by Richard McKeon (1998) and Miller (2000) left space for both
managerial (discovery) and generative (invention) functions; With origins in
“place” literally, the Aristotelian concept of topos serves as a spatial metaphor,
and connects to Aristotle’s term ethos, “its earIy sense being ‘haunts’ or “the
places where animals are usually found’” (Miller, 2000, p.139). The conjectural
paradigm “may be the oldest act in the intellectual history of the human race: the
hunter squatting on the ground, studying the tracks of his quarry” (Carlo Ginzberg
cited in Miller, 2000, p.138). Carolyn Miller (2000) carefully links the use of
hunting imagery to Renaissance vocabulary of invention (relying in part on Ong).

She connects the hunt to the venatic or conjectural worldview and the quality of

54

metis, “a quality frequently attributed to Odysseus, the polymetic, or many-skilled,
the paragon of craftiness and cunning” (p. 138). I think perhaps as we examine
the inventional strategies of digital composers in copyright imbued environments,
this concept of metis, the qualities of craftiness and cunning, might prove useful.

Venatic imagery persists in Cicero, Quintilian, and Aristotle’s work (p.
139). The hunting imagery reminds us that in the original concept of invention, it
was conceptualized as a habit of mind that brought together both the familiar and
the unfamiliar - one hunts in a familiar location for something one expects to
find—but has not yet found. Yet, sometimes when hunting for thing A, a person
instead finds thing B. However, the finding of thing B is not totally unexpected,
although it might be surprising. The act of hunting, like the act of researching, like
the act of digital composing, is an act of discovery in context. As Carolyn Miller
(2000) argues, “T o be rhetorically useful, then, as well as comprehensible,
novelty must be situated. Rather than offering the radically new, it must occupy
the border between the known and the unknown” (p.141 ). Miller’s careful
argument makes visible that “invention [as in novelty] and discovery are not so
different . . . what the hunter finds is never completely unexpected but may often
be startling or surprising” (Miller, 2000, p.143).

That discovery and novelty are not so different is present in McKeon’s
(1998) observation of the paradox in commonplaces. Richard McKeon refutes
the traditional notion that commonplaces serve only as catalogs of “prior
knowledge and fixed clichés” (cited in Miller, 2000, p.132). Instead, as Miller, he

sees the topos as places potentially leading to insights and novelty.

55

Commonplaces are “literally" places where the familiar and unfamiliar can be
brought together — through an exploratory combining of the new with the existing,
McKeon argues that the commonplaces’ concept contains a paradox where the
topoi can be both generative and managerial, novel and serving decorum,
inventing and rediscovering, simultaneously (Miller, 2000, p. 132). We saw a
good example of the digital commonplace in Leslie’s webtext.

Haller (2000) refers to invention as the “generation, evaluation, and
selection of verbal arguments” (p. 354) and therefore supports a broader
meaning of the heuristic function beyond “a formulaic system for communicating
existing knowledge” (Enos 8 Lauer, 1992, p. 82-83). As Enos and Lauer point
out, “from this perspective, rhetoric can not only be a way of arguing but can also
generate its own way of knowledge, its own kind of epistemic processes“ (p. 83).
Our theories of rhetorical invention are our epistemologies, or the core of our
methodologies as researchers in TPW and/or R8W. This connection is easy to
see through Miller’s (2000) discussion of the hunt. On the pragmatic level of
institutional writing instruction, if our theories of rhetorical invention serve as
methodologies, and we wish to teach writing students to generate new
knowledge, rhetorical invention is at the very center of our curriculum and
pedagogical approaches as Young (1978) states.9
Rhetorical Topics as Heuristics

Remember that my second assumption going into this study is that
heuristics, which I established above as an element in our understanding of

rhetorical invention, can be rhetorical topics (Haller, 2000). In this section I want

56

to support my assertion that rhetorical topics and heuristics can be the same
thing and as such are relevant to the writing process. I am going to support my
assertion by describing in more detail what Lauer (1979) might call the “flexible
direction” of heuristics, i.e. heuristics as a sequence of operations or a list of
elements under consideration during the composing process.

In setting forth my analytical framework (heuristic) for the understanding of
digital composing processes, I ask the reader to recall that Flower and Hayes’
(2003) cognitive process theory rests in part of the notion that writing processes
“have a hierarchical, highly embedded organization in which any given process
can be embedded within any other" (p. 274). They characterize writing processes
in very general terms of planning, translating, and reviewing. Planning,
translating, and reviewing have flexible direction and as such compose the
heuristic used by Flower and Hayes to research and understand composing
processes. This is their heuristic for invention. For Flower and Hayes planning,
translating, and reviewing are recursive actions that writers use to accomplish
their overriding goals of producing a completed text.

Instead of focusing on planning, translating, and reviewing, I focus on
writers’ motivations and considerations as they select content for their web
compositions. My heuristic for invention looks different than Flower and Hayes’.
While I do not use Burke’s (1966) analytical framework per se for understanding
composing processes, i.e. his dramatistic pentad of heuristic probes: “act, scene,
agent, agency, and purpose” (p. 37), his method does provide a foundation for

my study in that like Burke, I examine human behaviors and motivations in

57

writing decisions. The work of Odell, Goswami, and Herrington (1983) also
provides a foundation for my focus in this study since they too looked at
motivations for writerly decisions.

To understand my heuristic probe in this study, it is helpful to think of
rhetorical invention as a subset of rhetoric (since it is one of the five canons), and
of rhetorical topics as a subset of rhetorical invention. Like heuristics, rhetorical
topics serve both to find persuasive arguments and to generate new knowledge.
Having an analytical framework that includes rhetorical topics helps me conduct
data analysis of participant interviews by facilitating the ability to break a whole
into parts.

Cynthia Haller (2000) is the researcher who connected rhetorical topics
and heuristics in the context of rhetorical invention and composing. She pursued
a line of inquiry similar to mine by exploring the intersection of rhetorical invention
and heuristics in her study of design heuristics as mediational in the composing
decisions of a team of four computer science students. In her study, using
nonparticipatory observation methods, Haller (2000) examines the influence of
information system cliche design heuristics on the composing choices of four
students in a Software Design and Documentation course. She maps design
heuristics onto rhetorical topics, finding that both are systems of invention, and I
would like to do the same type of exploration instead mapping copyright
heuristics onto rhetorical topics.

Recall that my second assumption states that copyright law like design

guidelines, ethical considerations, etc., may function as a heuristic. Since as

58

stated, heuristics can be rhetorical topics, it follows that copyright-law-as-
heuristics can act as rhetorical topics generating rhetorical invention in the
composing process. Bizell and Herzberg (1990) say that Chaim Perelman, a
Belgium lawyer, and his collaborator Lucie Olbrechts-Tyteca found that actual
arguments made by judges, philosophers, politicians, and others were “strikingly
similar to classical topics” (p. 1066). Haller (2000) sets forth a similar argument
with respect to design heuristics. I use her argument and map that onto copyright
heuristics. Haller points out that design heuristics are similar to rhetorical topics
because like topics, design heuristics generate invention, are applicable across a
number of situations, and like special topics as described by Aristotle, are bound
to certain audiences. The same is true with copyright law. Copyright law is a
heuristic or list of considerations at work if one wishes to know the legality of a
use. Copyright law is an abstract concept but is applicable across a number of
situations. And like Aristotle's special topics, copyright law is bound to a special
audience, usually in the purview of copyright lawyers, but is increasingly in sight
of digital composers. To further connect Haller’s discussion to my discussion
here, two of Haller’s observations can be mapped onto Lauer’s (1979)
metatheory for heuristics: generative power (Haller asserted that design
heuristics generate invention) and transcendency (Haller said that design
heuristics are applicable across a number of situations) leaving Lauer’s concept
of heuristics as a series of steps or a sequence of operations (flexible direction)

as an addition to Haller’s description.

59

Based on the pilot study I conducted (discussed in Chapter Three), I also
add that a heuristic might be evaluated by its ability to provoke legal reasoning,
or highly analytical and systematic weighing and balancing of elements,
especially when composing In copyright imbued digital environments. Legal
reasoning at its best, is informed by metis, craftiness and cunning. I explain legal
reasoning a bit more later in this chapter. For now, I need to have some kind of
framework for what a heuristic might look like if I see it when conducting this
research - this is why rhetorical topics are useful because they provide a
framework. So, taking Haller’s description of rhetorical topics as heuristic
together with Lauer’s, plus my assertion due to the pilot study, I enter this
research with a working definition of heuristics mediating rhetorical invention or
heuristical thinking as drawing upon rhetorical topics, and as such serving as
concepts that when invoked by digital writers include these qualities:

1. transcendency
flexible direction (has steps, sequencing, or a hierarchy)

generative power

:“‘.‘*°!\J

provokes weighing and balancing of a number of variables (we might

consider metis here—I will need to further explore this in data analysis)
5. for special topics, are tied to special audience

I summarize my theory of heuristics by stating that a heuristic is a system of

invention organized by rhetoric. My heuristic probe of digital composing

processes in this study then, has these five qualities. Based on the pilot study, I

developed a detailed list of rhetorical topics that mediate digital choices, including

60

elements like copyright law, design, and ethical considerations. I discuss this in
Chapter Three.
Connecting Lauer’s Heuristical Thinking to “Legal Reasoning"

Lauer’s theory and explanation of rhetorical invention as heuristical
thinking echoes in many ways the systematic analytical thinking, or legal
reasoning taught in law schools. This should not be surprising since rhetoric has
deep and complicated connections with the law (Bizell 8 Herzberg, 1990; Howell,
1956; Kennedy, 1963; Perelman, 1980, 1963, 1967). Chaim Perelman (1980) in
his chapter “Legal reasoning” writes: “Legal reasoning is thus a very elaborated
individual case of practical reasoning, which is not a formal demonstration, but an
argumentation aiming to persuade and convince those whom it addresses, that
such a choice, decision or attitude is preferable to concurrent choices, decisions
and attitudes” (p. 129). Lauer (2008) might say legal reasoning is based in
rhetoric because it concerns itself with probable knowledge. Not much recent
scholarship exists exploring the relationship between legal reasoning and
rhetoric, but as stated the connection is very deep. When discussing the three
principle types of speech, deliberative, judicial, and demonstrative, Kennedy
(1963) states “Since judicial oratory could more easily be reduced to rules than
the other two, most treatments of rhetoric concentrate on speeches delivered in
courts of law” (p. 10).

The concept of legal reasoning is important to this study because I
examine how copyright influences digital writing among a group of writers. If

these writers are making composing decisions based on their understanding of

61

copyright law, than they might be doing something similar to what attorneys do —
what I call legal reasoning or thinking like a lawyer. Recall that by blending
together Lauer’s characterization of heuristical thinking with points made by Miller
(2000), I came up with a list of defining elements for a heuristic that includes
transcendency, flexible direction, generative power, qualities of metis, and for
special topics, is tied to special audience. Tiersma (2008) states that legal
reasoning is conceptual rather than textual (although it relies on texts), and
involves the analytical process of examining several texts for evidence of certain
salient features, and then finding connections among the issues thus formulating
principles that can be applicable across a number of situations (Lauer would call
this transcendency). What Tiersma describes as the garnering of salient features
across texts, is referred to as “issue spotting” In first year law school curriculum.
The importance of determining issues has very deep connections with stasis
theory in traditional rhetoric which in turn is closely tied to invention: “Invention . .
. comes first and is concerned with the subject matter, and finding out the
question at issue, which is called the stasis or status, and the appropriate
arguments to use in proof or refutation” (Kennedy, 1963, p. 10; See also
Lanham, 1991 and Howell, 1956).

The law relies on precedent and in order to extract a precedent from
judicial opinions, “The rule or principle of the case must be synthesized by
analyzing all the opinions, and it is therefore relatively abstract and somewhat
malleable” (Tiersma, 2008, p. 137). The Carnegie Foundation for the

Advancement of Teaching extracted certain characteristics defining “thinking like

62

a lawyer” that include “habits of mind” such as understanding the law as rational,
setting aside personal views of justice and compassion, and categorization and
discussion of persons in highly generalized, abstract terms. In law school we
talked about “plaintiffs” and “defendants,” using the Greek symbol pl 11 for
plaintiff, and the delta symbol A for defendant. “Legal language flattens and
confines in absolutes the complexity of meaning inherent in any given problem”
(Williams, 1991, p. 6).10 Such habits of mind also include deferring to the rule of
law rather than personal ethics (Sullivan et al., 2007). Apparently this mode of
thought among lawyers has been an issue of rhetoric for a very long time. I think
it has to do with what Kennedy might call the seductive powers of rhetoric:
No rhetoric can be better than the character of its orator, and
sometimes it seduces him. A serious lack of moral responsibility
becomes evident in some later Attic orators and persists in most of
Latin oratory so that even Cicero could boast with some satisfaction
of throwing dust in the eyes of a jury in defense of an unworthy
client. (Kennedy citing Quintilian p. 24)
Cicero’s reference to “throwing dust in the eyes of a jury” brings to the surface
possible connections between legal reasoning and its subsequent performance
(the legal-rhetorical performance based on but inseparable from this reasoning):
a performance informed by metis — where one makes things appear other than
what they are — i.e. “throwing dust.” The quality of metis can be used to seduce.
The abilities to successfully argue any point or any position regardless of your
personal beliefs must draw on metis.

Legal reasoning then has all the elements of heuristical thinking in that it

has generative power, transcends particular contexts, has a sequence or

63

hierarchy of thinking processes, involves the weighing and balancing of issues
(potentially informed by metis), and is tied to special “expert" audiences.

Both legal reasoning and heuristical thinking rely on frames of reference
that mediate a digital writer’s composing behavior. Figure 2.2 illustrates what it
might look like in a first-generation activity theory triangle (explained later in this
chapter), for legal reasoning and rhetorical invention to be positioned as types of
heuristical thinking where the heuristics are acting as mediational means. If

professional writers are considering copyright law as they

Heuristics/Rhetorical Topics as Mediational Means

Heuristical Thinking

Legal Reasoning 5 Rhetorical Invention

WrIter , Webtexts

FIGURE 2.2. Heuristics as Mediational Means.

 

64

compose, they are either doing something similar to “thinking like a lawyer" or
they are doing something different (or both). Since my main research question in
this study is to examine how the law influences digital composing, it is important
to understand how professional writers think about and consider the law as they
compose. Reflecting on what it means to “think like a lawyer" provides a point of
comparison.

Part Two: Activity Theory

So far in this chapter I explain my theory of the webspace as
commonplace, and connect the idea of remix to theories of authorship, thus
arguing that digital composing begs for an inquiry into how copyright law might
mediate composing choices. I imply that digital composing practices might also
require we redefine authorship. I discuss the underlying theoretical assumptions
for this study, including how rhetoric theory provides connections between
rhetorical invention and heuristics, as well as connections between heuristics and
rhetorical topics; I also try to show commonalities between Lauer's idea of
heuristical thinking and “legal reasoning." In this chapter I continue my framing of
the research by describing my use of activity theory, by defining mediation, and
by situating activity theory in the study of writing.

While Lauer defined rhetorical invention (problem solving, creative
thinking, discovering, etc.), in our field there is not a theory or clearly stated
research methodology on exactly how one might go about examining the
processes of rhetorical invention — at least using the terminology of rhetoric. We

have theories on how to do or teach rhetorical invention and how to define it (See

65

Lauer, 2004, for an exhaustive list of examples), but we lack a theory or method
for separating out rhetorical invention in the activity of writing in order to research
invention — this is where activity theory proves useful.11 I use activity theory as an
analytical framework (Foucault might call this a dividing method), a method of
separating out and mapping elements in the activity of digital composing, and
also as a community building method, to view the activity of writing in a system.
Ultimately I use activity theory for two reasons. One, it provides the theory
of mediation and a useful method for mapping mediational means in the activity
system of writing. The concept of mediation in turn is useful for explaining
behavior, cultural movement, cultural change, even individual change and
Ieaming that is unexplainable in the traditional behavior or social science
stimulus-response model. Explanations grounded in activity theory can assist
understandings of digital writers’ lawfulness-unlawfulness (why won’t digital
writers obey copyright law?). Activity theory can also help us understand political
action in the area of copyright restraints on free expression, and changes or
proposed changes in the copyright law itself. Two, Lauer’s theory of rhetorical
invention as epistemic and Vygotsky’s theory of the activity of higher intellectual
processes share some features creating a good match between activity theory
and the desire to research rhetorical invention. In this section I attempt to make
the commonalities between Lauer and Vygotsky visible in order to work toward a

theory of how one might approach researching invention in the context of writing

activity.

66

I realize that some might find it abrupt for me to discuss Janice Lauer and
Lev Vygotsky in the same sentence. But the connection here should on the
surface at least, be crystal clear. Lauer (1970) encourages us to develop a
transcendent, generative theory of rhetorical invention, but informs us that in
order to do so we must look outside rhetoric. To help us along this endeavor, she
suggests an especially appropriate field to examine in order to develop our
metatheory of rhetorical invention might be psychology. She thus supplies almost
200 bibliography entries from psychology scholarship especially with respect to
creativity and heuristics. Among these bibliography entries are articles between
the dates of 1931-1968. None of them are attributable to Vygotsky although he
died in 1934. However, “many of his publication dates both in Russian and in
English, are contemporary” (Glick, 1997, p. v). Mind in Society wasn’t published
until 1978. Therefore he was unlikely to be expressly referenced in Lauer’s
bibliography because she would not have had access to his work at the time she
wrote her dissertation or the CCC’s article, “Heuristics and Composition.” It has
taken many years for us to discover Vygotskys work and find its relevance to our
inquiries in rhetoric. In fact, Vygotsky’s relevance is revisited in my data analysis
chapters.12 That stated, in this section I begin by providing a brief history of
activity theory and then spend a bit of time defining mediation since the concept
of mediation is central to my study.
Overview of chtivitv Thfieprv Hisgw

I’m going to briefly review the history of activity theory in order to provide

context and introduce you to the different triangle-figures that I use. Lev S.

67

Vygotsky’s proposals are considered to be the foundation of what we now call
activity theory (Roth 8 Lee, 2007). While I frequently refer to “activity theory,” this
theory is commonly referred to as sociocultural activity theory or cultural historic
activity theory (CHAT). Because one of the basic propositions of activity theory is
that behavior cannot be understood without understanding the history of
behavior, and likewise culture cannot be understood without understanding the
history of culture, it is fitting that I employ the tenets of this theory by providing
the reader a brief historical context. Vygotsky developed the concepts of
mediation and internalization. His two students, A. N. Leont’ev (1978) and
Aleksandr Luria continued developing Vygotsky's theories after his death.
Vygotsky was mainly interested in the development of individuals, and that was
what he studied - often individual children and sometimes adults. Vygotsky’s
theory is often referred to as first-generation activity theory. His students Leont’ev
and Luria continued his work and added the cultural, societal, and historical
dimensions to Vygotsky’s theories — thus emerged what is sometimes referred to
as second-generation activity theory (Roth 8 Lee, 2007).

YrjO Engestrom is the major proponent of second-generation activity
theory. His work has contributed greatly to the spread of activity theory across
disciplines; however, Roth and Lee (2007) report that historians likely attribute
Michael Cole (1984, 1988) as one of the most influential persons who brought
activity theory to Western scholars.13 Contemporary scholars in R8W as well as
scholars in other disciplines have continued to revise and remediate the activity

theory triangle (See Witte, 2005 and Spinuzzi, 2003 for recent examples). As I

68

introduce the triangle-figures in this chapter, I note how they are situated in the
history of activity theory.
What is Mediation?

A key element of activity theory is the idea of mediation. The idea of
mediation breaks down the barriers between the individual mind and
culture/society (Engestrom,1999). “This expansive potential is evident if we look
at the notion of control' (p. 29). The traditional framework existing in the social
sciences and psychology sees humans as either controlled from the outside by
social structures or controlled from the inside by biological urges or genetic
makeup. In a framework that sees humans as controlled from the outside,
transformations of a system which emanate from the bottom of the social
hierarchy remain a mystery (Engestrom uses the examples of the Berlin Wall’s
fall and the release of Nelson Mandela). In Figure 2.3, the traditional social
psychology model for understanding human behavior appears showing the two

components that influence behavior — one the person, or two, the environment.

 

 

 

PERSON-human WEBPAGE COMPOSING

nature to share, ENVIRONMENT such as copyright law,

steal, rebel, etc. technology, hardware, software, levels of
censorship

 

 

 

 

 

 

FIGURE 2.3. A Traditional Social Science Stimulus-Response Model. In
a traditional social psychology framework, the person (as a container of
variables) coordinates a task with the environment. Copyright law is part of
the environment, just one part that the actor takes into account when
composing for the web.

69

In the framework that sees humans as controlled from within (for example legal
scholar Jessica Litman [2004] argues that individuals violate copyright law
because it is human nature to “share”), biology or “inherent free will” are the only
explanations offered (Engestrom, 1999, p. 29).

Mediation is a particular mode of organizing behavior that coordinates
between the behavior and a mediating structure that is not necessarily part of the
inherent task domain (Hutchins, 1997, p.338). So for example knowledge and
understanding of copyright law as a mediating structure (or a heuristic) might be
coordinated through mediation when a human actor is composing a webpage.
The copyright law heuristic is not part of the inherent domain of composing
webpages. It doesn’t necessarily show up in the finished product. In Figure 2.4
below I have expanded the simple stimulus-response model shown in Figure 2.3,
in order to illustrate how copyright law might function as a mediating structure.

Figure 2.4 is based on Leont’ev’s (1978) first-generation activity theory triangle.

7O

Copyright Law as Mediational Means

Writer , Web

Composition

FIGURE 2.4. Copyright Law in a Generation-One Activity Theory
Triangle.

 

Although copyright is a law its mediational role depends on the logical affect the
human actor allows it to have in her digital composing processes.

If copyright law is mediational it is a tool (Engestrom, 1990). If the writer is
unaware of the law, for that actor the doctrine is neither a mediating structure or
part of mediational performance (although it might be a rule). In Figure 2.5 I
provide a widely disseminated generation-two activity theory triangle which adds
cultural, societal, and historical dimensions to earlier theories. Bracewell and
Witte (2003) point out some problems with activity theory, including that

Engestrom’s second-generation expanded triangle has no place for examination

71

of the relationship between the different non-mediational positions and each
other. Likewise, Engestrom’s triangle does not provide a method to examine the
relationship between mediational positions and non-mediational positions (i.e. the
relationships between rules and tools).

While Engestrom (1990) spends time explaining tools as mediational, he
does not robustly discuss differences between mles and tools. His triangle offers
an interesting platform to theorize how copyright law might shift its position on the
triangle from rule to tool. If copyright law is a rule, while it isn’t mediational it
might impact the human actor with legal consequences at a time after the
webpage is composed. The writer who is unaware of legal restraints loses the
freedom to chose what if any impact copyright law might have on him. But in a
mediated performance, “the actor does not simply coordinate with the task

environment instead, the actor coordinates with something else as well”

72

Copyright Law as Mediational Means

Writer Web

Composition

 

   

 

Rules , Division of Labor
Communrty

FIGURE 2.5. A Generation-Two Activity Theory Triangle. Above
is a second-generation activity theory triangle showing the additional
cultural, social, and history dimensions added to Vygotsky’s original
proposals.

(Hutchins, 1997, p.338). For example, Leslie is aware of copyright law as she
selects content for her web composition. However, she weighs and balances her
risk of being held accountable for her educational use, and decides design and
ethics trump copyright law. She uses filters on the images not to evade copyright
holders, but to protect individuals’ privacy. For Leslie, her knowledge and
understanding of copyright law is mediational - is a tool, not a rule dictating her

composing choices.

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As Haller (2000) points out, the arguments facilitated by the mediating
heuristic (in her study a design heuristic) are erased in the finished text. So when
one examines the deliberations that go into composing decisions, instead of
analyzing digital writers as controlled by either biological urges/natures or the
environment, Vygotsky’s formulation of mediation allows humans to control their
own behavior from the outside “using and creating artifacts . . . Activity theory
has the conceptual and methodological potential to be a pathbreaker in studies
that help humans gain control over their own artifacts and thus over their future”
(Engestrom, 1999, p. 29). In Leslie’s case, there is a heuristic at work mediating
her choices. But that heuristic is complex and is created at least in part by Leslie,
not legislators. Copyright law is just one rhetorical topic at work in the heuristic
mediating Leslie’s composing behavior.

The concept of mediation is particularly helpful because the functioning of
copyright law in the composing process maps closely onto the functioning of
Vygotsky’s notion of mediational means. In his experiments Vygotsky uses three
key methods with subjects in order to observe the functioning of mediational
means in problem solving activity. He disrupts routine methods, provides more
than one route to solve a problem, and poses tasks that exceed the subject’s
knowledge and abilities. Vygotsky (1999) describes his methods as follows:

Wishing to study the internal stmcture of higher mental processes,
we usually do not limit ourselves to presenting the subject with
simple stimuli (regardless of whether the stimuli are elementary or
the tasks complex) to which we expect a direct response. We
simultaneously present the subject another series of stimuli that
functionally must play a special role - must serve as means for

organizing his own behavior. In this way, we study the process of
solving the problem with the use of certain ancillary means, and the

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whole psychological structure of the act becomes assessable to us

over the whole course of its development and in all the uniqueness

of each of its phases. (p. 59)
By questioning participants about their composing choices in light of copyright
law, I find that copyright law’s existence and potential imposition in the
composing process provides a method to test participants’ problem solving
strategies. First, like one of Vygotsky’s key methods, writers’ copyright law
considerations disrupt routine methods of problem solving. Instead of only
considering design heuristics when composing, writers also find themselves
considering copyright law separately from design. Examining writers’ thinking
here provides a view into rhetorical inventive processes.

Second, because of the probability calculations that are usually made
when considering the application of copyright law or the chances of being held
accountable for its violation, the law’s imposition into the composing process also
provides a variety of methods or routes to solve a single problem. This problem
of choice provides a view into the use of probability considerations (and its
relationship to metis) by digital writers. These probability considerations may or
may not be informed by metis, but they are related to metis because metis
involves conjecture. For example, Leslie would chose to password protect
copyrighted materials only if it was easy to do so. This was her logical decision
based on what she perceived to be low chances of getting caught.

Third, since I examine writers’ knowledge and certainty of knowledge
regarding copyright law in the context of digital composing, I am able to examine

what occurs when a writer needs to accomplish a task that exceeds that writer’s

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knowledge and abilities. For example, in the pilot study one writer who scores
low on copyright knowledge via the survey, spends many hours creating every
word and image from scratch so as not to face what she perceives as copyright
liability. Another writer who scores low defers to a course assignment sheet
rather than try to navigate copyright law and fair use on her own. The research
methods I use to make invention visible fit neatly into Vygotsky's methods of
measuring and observing mediated activity and are informative to theories of
researching rhetorical invention as well as our understandings of how heuristics
function.
Connecting Activity Theory to the Study of Writing in Rhetoric 8 Writing

Activity theory is increasingly used in rhetoric and composition as a
framework to study composing processes since composing processes are
activity (See Geisler 8 Slattery, 2007 and Hart-Davidson, 2007 for recent
examples). Hart-Davidson justifies his use of activity theory to study writing by
pointing to four methodological problems that arise in the research of composing
processes:

1. Composition unfolds in an improvisational way in response to a
rhetorical situation, social and organization setting, and immediate
physical surroundings the writer finds herself within;

2. Composition can take place over relatively long periods of time and in
a variety of locations;

3. Composition is typically influenced by or directly involves the efforts of
many people, even when a writer is working “alone” or is perceived to
be the sole author; and

4. Composition Is mediated by multiple technologies, some of which
work in concert with the writer’s goals and are therefore fairly

seamlessly integrated into composing activity, and some of which
profoundly alter or conflict with the writer's goals. (p. 156)

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In my study I examine if and how digital “composition unfolds in an
improvisational way in response to a rhetorical situation.” I also approach the
research wanting to explore the extent to which knowledge and understanding of
copyright law is one of the multiple technologies (mentioned by Hart-Davidson)
mediated digital composing.14 In the beginning of this chapter I stated that one of
my assumptions is that heuristics/rhetorical topics “mediate” the composing
process, and as mediational, act as objects that stimulate rhetorical invention
(Haller, 2000). Recall that I spent some time earlier in this chapter developing my
idea of heuristic, and argued copyright law can function like heuristics in the
writing process in the same way Haller (2000) found design heuristics to be
mediational. Remember that I discussed the webspace as commonplace and
asked you to imagine the commonplace as a technology or technique. The same
kind of abstract thought is needed to understand heuristics as a structure in the
activity theory triangle. And in the case of copyright law, the writers’ knowledge
and understanding of the law serves as a part of that hierarchical, generative
process at work in the minds of digital composers, according to the way I
envision writing processes via activity theory.

However, to problematize this discussion, as explained above,
Engestrom’s second-generation triangle provides different spaces for tools,
which are mediational, and rules, which are not. So, under Engestrom’s lens,
whether or not copyright law is mediational is going to depend on where it ends
up on the triangle - as tools represented by some internalized idea of itself (i.e.

knowledge and understanding), or as rules - unmovable words on the page, or

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directives, dictating one’s writing behavior. My (as well as Lauer’s)
characterization of heuristics maps onto what I define as tools, while a list of
directives, perhaps like the ten commandments (Thou shalt not. . .), are more
like rules rather than heuristics. I develop this more in the data analysis section.
But going into the research, I ask to what extent does copyright law integrate
“seamlessly” into writing activity, and to what extent does it “profoundly alter or
conflict with the writer’s goals”? Knowledge and understanding of copyright law
thus potentially serve as one of the mediating “multiple technologies” for the
writer, one that assists, hinders, problematizes, blends seamlessly into the
improvisation that occurs during composing processes. For Leslie, copyright law
presented a problem but one that she overcame by prioritizing design and by
weighing her use in an educational context against the risk of getting caught.
Because Leslie sees her work as non-threatening to potential copyright holders,
for her copyright law blends seamlessly into her composing processes. The
heuristic mediating Leslie’s composing behavior quashed the law.
Connecting Vygotsky’s Activity Theory to Heuristical Thinking in Rhetoric Q
m

Lauer (1970, 2004, 1972, 1979), Miller (2000), and Haller‘s (2000)
discussions of rhetorical invention as epistemic and Vygotsky's theory of the
activity of higher intellectual processes share some features making Vygotsky's
vision of activity an especially good fit with the desire to research rhetorical
invention. The activities Vygotsky studied were what we would call invention:

Vygotsky studied and developed a theory of invention. The rhetoric-based

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theories of invention described by Lauer (2004), Miller (2000), and Haller (2000)
include the very Vygotskian notions of problem solving, creativity, the weighing
and balancing of differing options, and even concepts similar to Vygotsky's
theories of internalization and mediation. What Lauer calls creativity and problem
solving, Vygotsky calls the “higher mental functioning.” Haller explicitly discusses
heuristics as mediational, while Lauer implies that heuristics structure the writer’s
ability to generate new ideas or think creatively, similar to Vygotsky/s notion of a
mediating structure. Vygotsky (1997) states that his research has “heuristic
significance” because it supports the idea of “the correctness of the structural law
of memory in contrast to the law of association” (p. 181). Vygotsky acknowledges
although it appears he studies memory, what he really studies is “the active
creation of stmctures” (p. 182). Heuristics are structures.

Lauer called for us to develop a transcendental metatheory of rhetorical
invention and invites us to look outside rhetoric to do this. Vygotsky’s work
certainly seems relevant. Remember much of Vygotsky's theory derived not from
studying a large system, community, or organization, but from simply observing
individual children or adults attempting to achieve tasks.15 He notes “for the child,
mastery of written language represents a special and exceptionally complex
symbolic system of signs" (1997, p. 132), and that the development of written
language “presents great difficulties for research” (p. 132) similarly as did Hart-
Davidson (2007). Vygotsky went on to state:

The development of written language belongs to the first, most
obvious line of cultural development because it is connected with

the mastery of an external system of means developed and created
in the process of cultural development of humanity. However, for

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the external system of means to become a mental function of the

child himself, a special form of his behavior, for the written

language of the child, complex processes of development are

required which we will try to investigate . . . (1997, p. 133)
Echoing Vygotsky in a contemporary voice, Hart-Davidson tells us how helpful
AT might be in research on writing. Activity theory lends itself to study how
certain heuristics might mediate invention in writing.16 Lauer states how we might
evaluate inventional heuristics, but she did not show us how such inventional
heuristics might mediate writing.
Conclusion

In this chapter I have tried to connect ideas from rhetoric theory and

activity theory in order to present a theoretical framework for my inquiry. These
theoretical tools have framed my research with respect to three main areas of
inquiry. One of my research goals is to examine the status of knowledge and
understanding of copyright law in the field of TPW as well as in professional
writers. Rhetoric theory helps me understand the way individuals consider the
law as they compose for the web. Activity theory provides an analytical
framework to map out elements in the writing process, and to view writing from
various system levels. A second research goal is to investigate the creative
thinking processes, or rhetorical invention, of writers in these programs
composing webtexts in light of copyright law. The blending of the theories l have
discussed in this chapter, especially the concepts of heuristics, heuristical
thinking, rhetorical topics, and mediation assist with exploration of this inquiry. A

third research goal is to examine what happens to mediational means as writers

8O

leverage them in digital contexts. Here, the activity theory triangle provides a
structure that maps out possible movement between mediational and non-

mediational means.

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CHAPTER 3

RESEARCH DESIGN

In the previous chapter I outlined my theoretical framework for my inquiry
as well as my study design. I drew on aspects of rhetoric theory and activity
theory as well as Foucault’s work. In this chapter I outline the design of my
research, and in Chapter Four I begin analyzing the data and discussing findings.

The research goals of this study are threefold. One, I want to examine the
status of knowledge and understanding about fair use and copyright law across
the field of technical and professional writing as well as in individual writers. Two,
I want to investigate the creative thinking processes, or rhetorical invention, of
writers in these programs composing web compositions in light of copyright law.
Three, I want to examine what happens to mediational means as writers leverage
them in digital contexts. Part of my investigation includes probing writers’
thoughts, reasoning, and motivations for their own composing choices. This
thought process is rhetorical invention and it is also “where texts come from”
(Prior, 2004). “When we see that tracing the composing of a text, what classical
rhetoric termed invention, involved the contributions of multiple people, it
becomes clear that tracing the writing process also implicates tracing authorship”
(Prior, 2004, pp. 169-170). As I explore digital writers' reasoning for the choices
that they made, I also inevitably trace the authorship of their web compositions.
As stated in Chapter Two, tracing authorship is always-already an exploration of

rhetorical invention.

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The larger question in my study is how does law mediate human creativity
as expressed in writing? On an even more abstract level, the question is how do
objects on the outside, get inside (us), and when they get inside, what happens
to them (and us)? This last question was really what Vygotsky (1962, 1978) was
looking at. Foucault (1977) looked more at why do these objects gets inside us.
For what ends. I look at that as well in the data analysis. Further, in my study I
look at: if copyright law is not a visible mediator, what other rhetorical topics are?
To investigate how writers’ knowledge and understanding of fair use is mediating
the activity of their composing processes on both an external and internal level, I
chose to conduct a mixed methods study (a large-scale digital survey and a small
set of interviews) of a group of writers. Since I am also interested in teaching and
Ieaming aspects of fair use and digital writing, I selected a group of educational-
context writers focused on web-authoring as my population. I chose to study the
writers, the students and teachers, in technical and professional writing programs
in the US from one view, and from the other view I chose to study an array of
student writers from within a single writing program. This chapter describes the
research design, including data collection methods, April 2006 pilot study, and
data analysis plan, as well as research design limitations (generalizability,
reliability, validity).

Research Questions
1. What do writers know and understand about copyright and fair use?

2. How confident are writers in this knowledge?

83

3. Are writers unable to express themselves fully because of fear of copyright
liability, i.e., is their digital “speech” chilled?

4. How important do writers think knowledge of copyright and fair use is to
their work?

5. What is the relationship, if any, between knowledge of copyright/fair use,
confidence in that knowledge, and levels of “chilled speech” in digital
environments?

6. When writers create web texts or write for the web, does their
understanding of copyright law and fair use influence the choices that they
make?

7. How do writers understand copyright law and fair use as they do rhetorical
invention in digital writing?

8. How do writers reshape the Iaw-as-written via their understanding (what
happens as the external law becomes internalized)?

9. What other rhetorical topics are at work in writers’ minds as they compose
for the web, other than copyright and fair use?

10.What kinds of things do professional writing students need to know in
order to be experts after they graduate or when they are writing outside of
the educational setting?

Questions 1-5, and to a small degree 9 were investigated in the survey. All of the
questions were explored in the interviews, but in the interviews the main focus of
inquiry was on questions 6-10.

Research Sites

84

The research was conducted primarily in two spaces: 1) cyberspace via
the online survey; 2) a conference room at a mid-west university where
participants attended as students. Reasons are discussed below.

Population Sampling Methods for Survey and Interviews

This section includes a discussion of population sampling methods for the
survey and the interviews.
A. Step One: The Survey

The population surveyed was a stratified, random selection of 155
professional and technical writing programs and NCTE writing majors on STC
and ATTW membership, and NCTE writing major lists as of September 2, 2007.
The lists are maintained by the Conference on College Composition and
Communication - National Council Teachers of English (NCTE), the Association
of Teachers of Technical Writing (ATM), and the Society for Technical
Communicators (STC). Using these three lists permits population breadth.
Technical and professional writing does not have a definitive publication listing
member programs. Therefore in order to gather a full-view of such programs it
was necessary to piece together a master list based on the membership lists of
three lists. Using three lists guards against biases that might arise from using
only one list.

Programs were divided into five categories: PhD Programs, MA Programs,
Four-Year Programs, Two-Year Programs, and Certificate Programs. A master
list was created containing the entire population (N=232). For stratification of the

entire population, see Table 3.1.

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TABLE 3.1: Stratification of Programs in Entire Population before
Random Selection

N=232 PhD MA Four-Year Two-Year Certificate
Programs Programs Programs Programs Programs

Number 29 61 99 37 6

Total 13% 26% 43% 16% 2%

Percent

Ultimately, this was segmented into four lists, with three lists used for the survey
in three phases. The stratification was created by taking approximately 20% of
the population in each of the five categories in three phases. 20% was not
necessarily my goal, but as it turned out if I took 20% (50 programs) I had a
chance of obtaining over 400 participants based on my formulation of possible
participation. I thought that by requesting participation from 50 programs, I might
get about 10 participants per program, thus giving me an N of 500. However, just
in case this plan did not work, which in fact it did not, I made space for problems
in recmitment by creating insurance samples to be taken in a total of three
phases. The reason for three phases was that each phase was successively
conducted until I received an initial response to the survey (before attrition) of
over 400 participants. The reason for a desired survey sample population of over
400 was to obtain a level of certainty of plus or minus 5% (Babbie, 2001; Lauer &
Asher, 1988 ). However, that number of survey participants was not achieved
considering survey attrition. Since the online survey experienced attrition as
participants progressed, the reported results on all questions will vary within the
tables discussed in Chapter Four. Four-hundred and forty-six (446) began the

survey, while 334 finished the entire survey.

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I chose to use these membership lists because they efficiently (in few
locations) included such programs. Limitations to using this method of population
selection are that it only included programs whose representative had voluntarily
inputted the required information. When creating the final list I eliminated
programs from countries outside the US, programs with no web presence, and
members that did not have a program, but instead had a single class in technical
communication listed only.17 Therefore, the population is biased in favor of writing
programs that are involved in membership lists and have a web presence —
indicating perhaps a bias towards more involved, tech-sawy programs.

B. Step Two: 'me mm
Criterion-based sampling was used for selecting seven interviewees.
Interviewees were selected based on five main criteria, as follows:

1. Students had all taken the survey and indicated there that they were
willing to be interviewed regarding their web authoring and that they were
or had very recently been students.

2. Students were all from one university, but spanned a broad range of
student-subject positions from undergraduate, to recent alum, to a PhD
candidate on the job market (See Figure 3.1).

3. Students were all individuals that I knew had an interest in copyright law,
either because they had previously asked me a copyright question in a
context unrelated to this study, or because we had discussed copyright at
a previous time. Even so, one of the students I met for the first time at the

interview because we’d only corresponded virtually.

87

4. Students were all individuals that I had high esteem for as people — for
unquantifiable reasons such as their work ethic, their professional ethos,
how others’ respected them in general, or because I thought them
particularly honest and smart.

5. Students were all individuals who, based on the above, I thought would be
willing to be generous during the interview, and reliable (they would show
up for their interview on time and prepared), and would make good

research subjects. On this prediction l was 100% correct.

iiifiii

 

 

 

 

 

 

First

Year

College Second Third 4 Year Master's PhD
Year Year Degree Degree Holder
College College Holder Holder

FIGURE 3.1. Studentness of Interview Participants.

In Figure 3.1 appears the “studentness" of interview participants. The term
studentness is an allusion to Nancy DeJoy‘s (2005) book, Process This where

DeJoy focuses on how students and their writing have been “othered” in

88

composition studies. The concept of “studentness” connects to Foucault’s
discussion of the ranking and dividing done in disciplines, and will be discussed
further in the interview analysis sections. Everyone I recruited for an interview
agreed and participated fully. Therefore, the interviewees’ data is biased in favor
of students who have some interest in copyright, do web writing, and are reliable.
All of the interviewees had taken the survey and knew that this was my area of
interest, and so they all knew I was looking for information about copyright and
fair use when I talked with them. Since some of these criteria are subjective,
though this is not an ethnography, I do not posit that the interviews as l
contextualize them offer an objective portrayal of reality. The individuals
interviewed are part of an educational community that I too was simultaneously a
part of. Therefore my approach to these interviews is subject as well to “query
and interpretation” (Lindquist, 2001, p. 10). Because of the criteria I used to
select interviewees, as well as my own position within the educational community
they too were a part of, “I do not claim to offer a neutral, scientific, or somehow
’unauthored’ account’ ” of their writeriy accounts (Lindquist, 2001 , p.10).
Nonetheless I run the risk of writing a true and accurate report of these
interviews.

I decided to interview only students because I thought they'd be easier to
recruit (see Sun, 2004). One reason I thought some of them might be easier to
recruit is because of reciprocity and Ieaming issues. Some of the student
interviewees are also conducting research, and may have developed a quid pro

quo attitude. Since they are also beginning researchers, I sensed a greater

89

willingness to participate due to the desire to gather information and learn about
research models. I also believed that they were more likely to be regularly
completing a wide variety of web compositions due to course work and part-time
employment. Teachers in contrast I thought would be generally creating less
diverse kinds of web texts because they would need to be spending time writing
journal articles, books, and reports since this is still part of the tenure and
promotion process. Therefore, I thought I’d get more variety of perspective and
web writing by concentrating on student writers in the interviews.

I did not collect gender, age, race, disability status, sexual orientation, etc.
of participants and in fact I changed the gender of interviewees in the write-up.
Potential differences based on these subjectivities were not explored in this
study. My main reason for this purposeful stance is because I tested knowledge;
I wanted to avoid making inferences that one group knew more than another
based on such subjectivities. The practice in the social sciences of asking survey
questions based on race, gender, ethnicity, and religion requires the
operationalization of such “variables” and every metric reinscribes these
institutionally sanctioned categories of “difference” again and again. I wanted to
avoid doing that in order to sever existing connections between race, gender,
ethnicity, etc., and “knowledge.” I wanted to avoid having to see any of these
categories as independent or dependent variables. I was able to avoid making
generalizations in data analysis based on these categories, and instead was able
to see other categories of difference emerge. l was able to see four unorthodox

categories of difference or cultural positionalities emerge: workplace culture, the

90

culture of the educational institution, law school culture, and culture involving
laws/norms outside mainstream US. I found empirical evidence that a writer’s
web space serves as a place of colliding and sometimes competing cultures that
writers occupy simultaneously.

The reason that I selected seven interviewees was because of time and
funding, and to avoid data overload. Conducting just these seven 30 minute
interviews yielded 97 pages of single-spaced, 12 point font transcriptions. I also
had 57 pages of transcripts from the pilot interviews. After gathering this much
data, transcribing it and reviewing it, I felt I had a very good view into the writing
process of these digital writers in the context of my research questions.

For purposes of constructing interview questions I collected participant-
authored web compositions. In addition to providing the IRB approved interview
recruitment language via an email attachment (See Appendix 3.1), I did not
otherwise give restrictions on what interviewees provided me. I asked them in an
email with the following language:

As soon as you have a minute, I need a URL of some sort of
something you've published to the web, or composed for the web -
a digital portfolio, teaching materials, Facebook profile, webpage, or
something of that nature. I need this before the interview so I can
look it over and make up a few questions.
The reason I left open the exact type of web writing requested is because I
wanted to see what kind of texts students had written across roles rather than
just in the classroom. I thought this might give more insight into student
subjectivities. As discussed below, interviewees supplied me with a wide variety

of web writing.

91

Survey and Interview Data Collection Methods

This section includes the data collection methods for the survey and the
interviews.
A. Step One: The Survey

Students and teachers in these programs were contacted directly with a
recruitment and reminder email. All emails included a link to the online survey.
Between September 17, 2007 and November 2, 2007 I sent out a total of 1,935
recruitment emails, with a total response rate before survey attrition of 446, for an
overall response rate of 23%. Note that in the first phase I initially attempted to
contact program directors and ask them to forward the email to teachers and
students in their program with almost no success. In this initial effort the
recruitment email did not include a link to the survey. Therefore, that fact along
with the disconnect between myself as the survey administrator and the potential
participants at the other end of the network, means the response rate can only be
an estimate since I didn’t have complete control over who received the online
survey. While 446 participants began the survey, 334 finished the entire survey.
Stratification for the population that finished the entire survey is shown in Table
3.2 in the gray shaded area. The final email reminder was sent out November 19,
2007, and the survey closed November 30, 2007. Therefore, survey data was
collected over 11 weeks. 155 programs were contacted via student/teachers,
with 64 TPW programs and/or writing majors confirming response, for a
programmatic response rate of 41%. 334 students (41%), teachers (47%), and

“others” (12%) from 64 TPW programs and/or writing majors completed the entire

92

survey (See Appendix 3.2 for a list of participating institutions). Differences in the
stratification of the entire population and the randomly selected population can be
seen below in Table 3.2.

TABLE 3. 2: Comparison of Stratified Populations
PhD MA Four-Year Two Year Certificate
Programs Programs Programs Programs Programs

 

Entire Population 29 61 99 37 6
#

Entire Populatlon 31% 26% 43% 16% 2%
%

Survey Population 1.? -» 19 27;;

  
  
 
 

.SurveyPopulatlon 27%1. 30%,...2 '

 

W 3:14 '
Tin Survey ,
Populatlon

The main variation between the actual population and the participating population
is that PhD programs participated on a significantly higher level than how they
appear in the entire population, while two-year programs participated at a
significantly lower level. This difference might be expected, since in general
individuals in PhD programs are going to value and participate in research more,
while the opposite is true for tvvo-year programs. So the explanation could be
cultural. Other reasons might explain this as well. Perhaps PhD programs have
more technology available, or more technology integrated into the curriculum -
making the survey more accessible and more relevant. The reasons for the
difference between the actual population and the respondents ultimately remains
unexplained but must be taken into account for purposes of generalizability. The
study population subsequently is biased in favor of PhD programs and does not

have adequate representation of two-year programs.

93

To collect data, emails were gathered via writing program web sites. If
student emails were unavailable, students from those particular programs were
not contacted. If a program website did not include student contact information,
which was the norm, college/university directories were examined for the
possibility of directory information. If student names but not email were provided
on program web sites, online college directories were used to locate student
emails where available. Therefore, the survey population also contains a bias in
favor of web sites that make student contact information visible or available. The
survey itself screened out anyone who had not created and published to the web
a composition such as a “web page, web space, wiki, blog, page on
facebook/myspace or other social networking software application” (See
Appendix 3.3 for a copy of the survey).

The survey had six parts and 29 questions total, 15 one part and 14 two
part questions. The first part contained three questions and screened the
individuals noting whether they accepted the terms and whether they had ever
composed and published to the web. The second part asked one question on
whether it was more important to obey the law or follow one’s conscience
(exploring the possibility of a third variable at work in some of my hypotheses).
The third part asked a single question on educational level. The fourth part
contained six questions measuring whether or not one’s digital speech was
chilled. In the fifth section of the survey, participants were asked a total of 14
substantive questions on basic copyright law and the fair use four factor test.

These questions also explored participants’ knowledge of the differences

94

between unauthorized use via fair use, and authorized use per permission and
licensing. For example, a question that tested participant’s knowledge of how fair
use applies only in the case of unauthorized use was as follows:
If you ask a copyright holder for permission to use their material in
your own original web composition, and they say no, this means
you absolutely cannot use the copyright holder’s material under fair
use.
Note that the best answer was false, because fair use does not require
permission and is often relied upon when permission is not given, as in the case
of the requester’s desire to create a parody (See Bill Graham Archives [2006]
and Campbell v. Acuff [1994] for examples). Copyright holders are unlikely to
agree to permit someone to use their materials in order to make fun. Some
questions in this part were based on existing online quizzes but many also
echoed Waller (2006a, 2006b) and Howard’s (2004) fair use inquiries. In
formulating the questionnaire, I also used my training as a lawyer specializing in
intellectual property (particularly fair use), as I am admitted to practice in two
states with an active license in one. After each content question, participants
were asked how certain they were about their answer, with 1 being “very certain”
and 5 being “not certain at all.” The idea here was to examine whether a
correlation existed between understanding and confidence levels. I was also
exploring whether there was some empirical data available to support the general

statement that individuals are confused and uncertain about copyright law and/or

fair use, an argument used to support the assertion that such individuals are thus

95

fearful of fully expressing themselves when composing for the web (i.e. “chilled
speech”).

In the final four question section of the survey, participants were asked
how important they thought knowledge and understanding of copyright law was
to their work as digital writers. They were also asked how they primarily
described themselves, as students, teachers, or others; they were asked to
specify their institution, and finally students were asked if they were willing to
participate in an interview. Survey responses were anonymous unless
participants volunteered identities

Mainly as a mode to organize my survey questions, I created hypotheses
to test. Each variable in the hypothesis had to be operationalized and
necessitated the creation of survey questions as indicators. This was incredibly
helpful because I was able to scrutinize each survey question to assure it was
relevant to my inquiry. I cannot argue that hypotheses testing is a superior
method to create truth than any other method. However, it is valued in certain
discourse communities such as the social sciences.

HYPOTHESES (see Appendix 3.4 for detailed definition and explanation of
each hypothesis):

H1: The more knowledge one has about fair use, the less one’s speech is chilled.
H2: The higher the educational level, the higher the knowledge about fair use.
H3: The higher the knowledge of fair use, the more likely one is willing to see

exceptions to obeying the law.

H4: The higher the knowledge of fair use, the higher the certainty one’s
knowledge is correct.

H5: The more certain one is in their knowledge, the less one's speech is chilled.
H6: Persons who believe in exceptions to obeying the law will have lower levels
of chilled speech.

96

Causal Process Model Re: Survey

      
 
      
       

, Knowledge of
* Fair Use

 
  
  

   

Educational OBEYLAW 63$

' ~ Level .I' .questIOnzshouldthéi':
' -. , lawheobeygdorare,

there, exceptions? *

FIGURE 3.2. Causal Process Model Regarding Survey

In Figure 3.2, a causal process model is illustrated that outlines the goals
of the survey. This causal process model was created in order to contain and
organize survey questions, and in order to reduce problems of data overload.
Independent variables are those that cause the dependent variables to change.

Generally the independent variables must be read in context with other variables

97

because, for example, educational level is an independent variable with respect
to knowledge of fair use. But knowledge of fair use is an independent variable to
certainty of knowledge. So as one reads along the causal chain, the independent
variable will change. However, in all cases, chilled speech is a dependent
variable.

The scope of the survey was limited because it is unrealistic to explore
more than four or five variables via a survey in a doctoral dissertation.
Additionally, it is unfair to subject research participants to long, complicated
surveys (Babble, 2001; Backstrom & Hursh-Cesar, 1963). Participant attrition in

Survey Attrition Chilled Speech

 

440‘

420 ‘

400 -

340-

 

 

 

320

 

1 2 3 4 5 6 7 8 9 10 11 121314 15161718 1920 212223 24 252627

FIGURE 3.3. Survey Attrition. The vertical line above question two
indicates the end of the first two screening questions on web composing.

98

my survey was fairly dramatic (15%), and would likely have been even more
dramatic if the survey was longer. Figure 3.3 shows the attrition that occurred
after the first two screening questions when N=395, and the last multiple choice
question, when N=334. Finally, the scope of the survey was limited because in
many respects this study explores unknown territory, and the survey results will
hopefully provide evidence of trends and correlations ripe for further explorations.
Because of the limitations inherent in using the survey method (eliminates
context, details, richness of data), I was unable to explore all of my research
questions by the survey alone.

Survey participants were offered no payment nor other remuneration
although I have promised to share research results and resources (survey
answers) with those M'IO identified themselves.

m Twp: The Interviews

After locating interviewees on the survey that met the criterion, l recruited
participants by sending them a recruitment email. Interviews were conducted
between November 14 and November 30, 2007. Five interviews were conducted
in a conference room at a mid-west university, another in a student’s office at this
same university, and one interview was conducted by telephone. The discourse-
based interviews used retrospective accounts of writing, were semi-structured,
and used strategies of stimulated elicitation (Prior, 2004). Discourse-based
interviews (Odell, Goswami & Herrington, 1983) were used in hopes of eliciting
tacit18 knowledge and better understanding writerly motivations behind specific

choices made during the digital projects. For example pilot study participant

99

Shauna (pseudonym) especially focused on design issues for her composing
decisions, even expressly denying early in the interview that copyright influenced
her decisions in any manner. But when asked about alternative choices, she
acknowledged that copyright was a consideration. Shauna had chosen visuals of
generic media, a visual of a generic jump drive, for one of her web compositions,
and when asked if she would choose something with a trademark or branding
instead, she responded that she’d carefully chosen the jump drive and other
images because they were generic in order to avoid copyright liability.
Retrospective accounts of writing have limitations in that they rely on
people’s memories. Prior (2004) reports that people may forget the moment-to-
moment details that went into their writing decisions. He states that the farther
between the act of composing and the account, the greater the chance that
details will drop out and new details will be added to suit the “social situation and
time in which they are produced” (p. 185). While I could have used observation or
talk-aloud protocol, I instead opted to use retrospective accounts in order to
apply discourse-based strategies. Further, both observation and talk-aloud
protocols, as well as screen capturing and diary studies have their limitations
especially with respect to time and data-overload (sheer size of data on one’s
hard drive). One of my interviewees reported having at least 150 production
hours in one of her compositions, not including all the times she’d presented and
further revised this particular piece. As my interviewees noted and as Prior
(2004) argues, texts often contain a multiplicity of authorship not observable by

watching a single writer in a single context. It was common for the interviewees

100

to have pieces that were previously authored by unknown persons, and then
taken over by them at a given time (organizational web pages lend themselves to
this). It was common for the interviewees to present for consideration in this
study web writings that had been revised over a period of years, and had ‘
transformed in purpose. Leslie, for example, created a digital-visual composition
for a graduate course that was later integrated into a FYW course she taught.
Jessie, a soon-to-be PhD student, created a digitally-remixed movie for a course
assignment that ended up being a showcase piece for her digital portfolio and the
center of many conference presentations as well as a journal article. It was not
uncommon for interviewees to be at least partially supplied with content by
others, and complete only the arrangement and style aspects of authorship.
Heather, an undergraduate student working across the university in different
fields, was always supplied with content by others for her organizational web
writing. Amanda, a recent four-year graduate working for a national health
organization as an online communication specialist, was supplied by her
organization and its constituents with content for web compositions.

One special strength I found when using the retrospective account was
the ability to learn when web authors had forgotten where they had obtained
materials that appeared in their own web compositions. These interviewees, such
as Leslie and Amanda, knew they had not created certain visuals in their own
digital texts but could not remember where these items had been obtained. The
fact that this phenomena occurred is noteworthy since it challenges attribution

traditions as we understand them in alphabetic text contexts, and would not have

101

been discovered without use of a retrospective account. Such composing
practices inform our understanding of “common knowledge.” Stephen Well
(2001 ), Emeritus Senior Scholar in the Smithsonian Institution’s Center for
Education and Museum Studies agues that our current fair use doctrine is
inadequate for visual artists because visuals cannot be quoted, paraphrased, or
adequately summarized with alphabetic text. Other’s visuals must be used in
their entirety in order to critique or analyze. Before the intemet presented a vast
array of “the visual,” artists incorporated into their work “nature” because that’s
the material they had to work with (See Rife, 2009 for a detailed discussion).
Nowadays, one’s original visual art often incorporates other’s copyrighted
materials. Weil lists numerous examples including Andy Warhol’s work,
NamJune Paik’s Video Flag, and Jeff Koons’ sculpture Kiepenkerl, cast directly
from a nineteenth century bronze sculpture that once stood in a square in
Munster, Germany. Ultimately, we may have to view a web composition as “a
visual” — as far as what that means for copyright, the limits of fair use, and anti-
plagiarism practices I will comment on in upcoming chapters when I discuss
intersections between common knowledge and commonplace. In further defense
of retrospective accounts, in other discourse communities particularly the legal
community, retrospective accounts like confessions, testimony, and accounts via
deposition are all considered legitimate in even the most high stakes situations of
life and death.

Prior to their interviews, students (Leslie, Carey, Jessie, Rob, Heather,

Amanda, and Sarah) sent me an email containing a link to at least one self-

102

authored web space. Since I did not explicitly require students supply
websites/web spaces that were completed in class, I was supplied with an array
of web compositions that included what I call gift writing (web-writing done for a
family member or friend at no or low cost), course project writing, professional
portfolios, writing completed as an employee while also a student, writing that
had transformed from student-writing to teacher-writing, social network spaces,
and (limited) access to a national teacher database of digital teaching material.
This wide array of digital compositions that were so readily supplied and the
ensuing implications for defining “studentness,” “composition,” “authorship,“
“originality,” as well as the way these texts challenge ideas of “beginnings” and
“ends” to writing projects, will be discussed later. I reviewed these web
compositions in order to formulate interview questions, and subsequently used
the compositions as reference points during interviews. I referred interviewees to
their web texts as we talked - thus the “stimulated elicitation” aspect of these
interviews.

The web compositions were analyzed to generate questions regarding
potential tacit knowledge of copyright issues. Questions were also formulated to
explore the notion that the finished product hides the rhetorical nature of
decisions that went into the text (Haller, 2000). These kinds of questions
ultimately examine where web texts come from (Prior, 2004). I examined each
web composition or web portfolio, that might contain web pages with or without
visuals, videos, flash movies, and power points, looking for presences of

copyright law. In other words, I looked for materials in student web writing that

103

were written by someone other than the student. I was to some extent tracing

authorship. But this tracing was only a guess until I collected student-accounts.

As web texts were examined, questions asked of each text were:

1)
2)

3)

4)

5)

6)

What is the context for this web space?

Who authored the components of this web space?

Is there material present that might be copyrighted by others - text,
visuals, sound?

If not why not?

If so, how has the student synthesized these multimedia materials with
other material?

Were strategies used to avoid negative copyright implications?
Examples might be generic representations of name brand items, low
pixel or smaller-than-normal visuals, partial and/or short quotations,
collages, visuals/sound files that have been modified from what might
have been their original form, digital materials that appear to have
been constructed from “scratch,” attributions, copyright or use
information (creative commons licensing, copyright symbol, terms of

use, etc.).

Figure 3.4 is a screen capture from a student web text that was part of the pilot

study (Shauna). These visuals were situated on a web page that included the

student’s picture and student written text. I do not provide a screen capture of the

entire web page in order to protect the student’s identity. I show this in order to

walk-through how I derived the questions based on the above protocol. Before

104

meeting with the student I collected a web text and reviewed it with the above-
questions in mind. With respect to Figure 3.4, I knew that the web text was a part
of this student's professional-digital portfolio. Upon examining the web text, I
deduced the student had not created from scratch any of the visuals depicting
media (the floppy disc, jump drive, and so on). Since the “evolution of man”
sequence looked familiar, I decided the student had not created that either, but
that the sequence had been created by someone else and the student had
matched together the media visuals and the evolution of man depiction. As I
continued to construct questions for my anticipated interview with the student, I
developed questions regarding the student choices. This is how I formulated the

questions in each case.

In: ,7

at”

FIGURE 3.4. A Screen Capture from a Student Web Text Used to
Formulate Interview Questions before Meeting with the Student
Interviewee.

 

 

 

 

 

105

The interviews also hoped to answer research questions six through nine, as
described earlier in this chapter. Since I wanted to avoid biasing my interview
analysis I did not examine student survey scores until I finished analyzing their
interviews.

Student interviews were digitally recorded and transcribed. During the 30
minute interviews, each interviewee’s web composition was referenced as
participants were asked to revisit specific choices made during writing that
involved copyright/fair use issues (eg. use of images, videos, text), and were
offered alternative choices meant to explore how that factored in making
composing decisions. Elements of the four factor fair use analysis of section 107
organized my inquiry. Although sets of questions were tailored to particular web
compositions, samples of interview questions are provided in Appendix 3.5,
Interview Protocols.

As Sun (2004) notes, qualitative interviews often use main questions,
probes, and follow-up questions. Since the interviews were semi-structured, parts
of the discussions between myself and the interviewee were free form or
naturalistic, especially when I probed certain issues that arose with individual
participants. Since each interview was significantly different than the other, I used
the interview to gather information to create vignettes of the participants as digital
writers, in order to make a marker in time of current digital writing practices.
Because the probing questions differed significantly, each interview creates a
kind of portrait of a single digital writer at a single moment in time. For example,

one student, Rob, is an international student and so issues of intemational law

106

and culture arose during our discussion. Another student, Sarah, had recently
graduated and was working as an independent contractor writing web sites for
non-profit organizations and was also completing gift writing - copyright issues in
this work arose. Another student, Amanda, was working as an employee for a
non-profit health organization and so work-for-hire and corporate authorship
issues arose. Probe questions were used to explore these various details in the
lives of individual writers, creating a wide breath of interview data.

Interviewees were offered no payment nor other remuneration although I
have promised to share research results and resources (survey answers).
Site and Population Selection

I chose to conduct the research at the sites with this population for four

reasons.

1. Familiarity with and Interest in the Population: I have been teaching
writing for nine years, and working in digital writing for about five years. I
intend on staying in this field and therefore have a vested interest in this
population, of which I am a member. Because I have been actively writing
for scholarly publications, presenting at disciplinary conferences, as well
as teaching and being a student in this field, I felt some familiarity with the
participants and the issues they face as digital writers.

2. Population Identity as Experts in Digital Writing: A number of scholars
have positioned field members as experts in writing, particularly digital
writing (Carliner, 2003; Hart-Davidson, 2001 ), while others have argued

for the importance of teaching and engaging in digital writing (Digital

107

Rhetoric Collective, 2006; Grabill & Hicks, 2005; Selber, 2004; WIDE
Research Center Collective, 2006). Still others have argued for the
importance of teaching fair use and copyright in the writing classroom
(DeVoss & Porter, 2006; Herrington, 2001, 1998, 1997; Howard, 2004;
Logie, 1998, 2005; Porter, 2005; Rife, 2007; Walker, 1 998). Therefore, I
thought it relevant to create a marker on where the field is with respect to
its expertise on fair use and copyright, and how important it thinks such
issues are to its mission.

3. Curiosity: While I have a lot of experience interviewing people going back
two decades to the time I practiced law, I had almost no experience
administering an online survey. l have never designed a survey.
Therefore, I wanted to attempt Ieaming a research method that was new
to me, but might prove a useful skill in the future.

4. Time and Funding Constraints: I had tried to unsuccessfully obtain
funding for this study from many venues. Because of limited funding along
with limited time (my target time expenditure for collecting data was one
semester), I chose to administer an online survey and conduct interviews
in a location that would not require undue travel time and expenditures.
However, I add that l have a continuing goal to do everything in the most
time and cost efficient manner, so it is difficult for me to say whether I
would have designed the study differently if I had received funding. I did
not feel overly constrained by this reason.

Mixed Methods Approach

108

In this study I employ sequential transforrnative mixed methods to find
information about my research questions. The study is sequential because first I
did the survey, and then I completed the interviews.19 It is transforrnative
because instead of focusing on the quantitative data, I focus more on integrating
the results of these two methods in my interpretation. The study's theory, its
conceptual framework in activity theory, guides my analysis rather than the
study's methods:

The purpose of a sequential transforrnative strategy is to employ
the methods that will best serve the theoretical perspective of the
researcher. By using two phases, a sequential transforrnative
researcher may be able to give voice to diverse perspectives, to
better advocate for participants, or to better understand a
phenomenon or process that is changing as a result of being
studied. (Creswell, 2003, p. 216)
Activity theory is a good fit for this research design because activity theory tries
to provide a research paradigm that bridges the problem in research between
“macro” and “micro” units of analysis. In this study I have both a macro level of
analysis (the survey). and a micro level (the interviews). Yet, both levels look at
systems — the field as a system and the individual as a system. The two levels
are different views — global and local, of writing systems.

The study is mixed methods because it uses both quantitative and
qualitative approaches. Quantitative and qualitative approaches might be seen
on a continuum, with quantitative methods often involving experiments or

surveys, and often involving counting. Qualitative approaches on the other hand,

often don’t involve counting and depend more on interpretation. Case studies,

109

narratives, and ethnographies are examples of qualitative approaches (Creswell,
2003).

My study design is empirical in that it is based on observations that can be
replicated, and it hopes to yield empirically relevant (Kinney, 1972; Reynolds,
1971) findings. For purposes of justifying the nature of my design aside from the
excellent fit with my theoretical lens, I adopt Johanek’s (2000) “Contextualist
Research Paradigm” (p. 112) and lam also informed by Creswell’s (2003)
characterization of mixed methods research. Decisions about research design
are rhetorical decisions (Grabill, 2007a; Kamberelis & Dimitriadis, 2005). By
implementing Grabill’s guideline within the framework of Johanek’s research
paradigm (Johanek includes the rhetorical decision as well), my design decisions
have been made for three reasons: pragmatics,20 rhetorical issues, and
researcher’s positionality and motivations.

The first reason, pragmatics, is supported because mixed methods has a
number of benefits in that it tries to address biases in any one method, and it also
is more concerned with the problem rather than the method (Creswell, 2003). As
a researcher I think it is most important to use methods that will answer the
question. The second reason, rhetorical issues, is supported because since I
would like this study to be useful and acceptable to the maximum number of
persons, I wanted to use multiple approaches emanating from more than one
knowledge claim.

The third reason, researcher’s positionality and motivations, is supported

since I use mixed methods to suit my theoretical perspective. Since I have used

110

the frame of activity theory and the idea of multiple perspectives, system and
individual-as-system, or external and internal, I thought it practical to use more
quantitative methods to view the system from above, and more qualitative
methods to view the individual and internalization. If I wanted to know what the
major US newspapers were saying about Hillary Clinton, I’d think it unwise to
look at two newspapers, although looking at two newspapers would tell you
something. But I should look at them all, or if strapped for time, I should look at a
random selection of major US newspapers. If I wanted to know the status of
knowledge and understanding about fair use and copyright law in the field of
technical communication, I do not think the best choice would be to ask one or
two people. Instead, if I want to know what the field thinks, then I should ask the
field.

Making a decision on what to write or refrain from writing (and all the
shades in between) is an act of rhetorical invention. Choosing how to select
certain content through one’s understandings of copyright is a rhetorical decision.
Because it’s been asserted that copyright law and lack of fair use rights and/or
knowledge about these doctrines are chilling speech, I employed quantitative
methods via a survey to test hypotheses regarding whether or not this assertion
can be supported with empirical findings regarding a relatively large population.
The large population is necessary in order to have reasonable certainty in the
results. Since I have an interest in examining what’s happening at the individual
level, and in gathering details and painting vignettes (see Appendix 3.6 for the

digital writers’ visual and textual vignettes), I also used a qualitative approach by

111

personally interviewing some digital writers regarding their decision making
processes with respect to web composing.
Pilot Study

In this section I first give an overview of the pilot study methods. I then
give an overview of the pilot results, first for the survey and then for the
interviews.
grewiew of Pi_l<_)t

To test the design for this study, in April 2006 I conducted a sequential
mixed methods pilot study that included a paper survey and discourse-based
interviews. As in the full-study, the interview methods were criterion-based,
retrospective, semi-stmctured, and used strategies of stimulated elicitation (i.e.
used collected web pages as talking points). Another purpose of the pilot study
was to generate some preliminary findings that could be tested further in the full
study.

This initial pilot study examined knowledge and understanding of copyright
law and fair use, as well as certainty in that knowledge, of 26 students and
teachers at a high level research university in the mid-west that has
undergraduate and graduate level professional writing programs (Rife & Hart-
Davidson, 2006). The study also explored how students used their knowledge
and understandings of copyright law when composing in digital environments. In
this sense, the inquiry was whether law functioned as mediational means during
the composing process. The survey served to illustrate if copyright law was a

problem, while the interviews served to examine how this problem might be

112

addressed in the rhetorical inventive sense. A survey was administered, web
compositions were collected, and four students were interviewed.

Twenty-two students and four faculty participated in the pilot study. None
of the participants were offered payment or other rewards. They were selected
because they were contemporaneously (or in the case of one faculty member,
had in the previous semester) engaged in web authoring/teaching of same for a
course in a professional/technical writing program at the university. I recruited
students from courses within a TPW program that expressly had a component
that included web authoring. I completed classroom visits and read from a script
in order to recruit the participants. Twenty-six participants took the questionnaire.
In this pilot, I did not keep track of response rates (number asked to participate
versus number who agreed to participate).

The paper questionnaire was similar to the online survey used in the full
study, but less organized and much lengthier. It contained 69 questions. The
survey helped form a baseline for understanding how participants’ knowledge
might influence their web authoring choices and whether copyright law was
acting as a mediational heuristic. The criteria for selecting interview participants
was different in this pilot than in the full study. In the pilot I selected interviewees
by first placing all 26 participant questionnaire scores into categories/quadrants
(see Figure 3.5) based on whether they were high-knowledge/high-certainty,
high-knowledge/low-certainty, low-knowledge/high-certainty, or low-

knowledge/low-certainty.

113

Fair Use Graph

 

 

 

100

70 o

 

 

 

 

7
X Axis= Certainty (0-10)

10

 

Avera e
g Teachers=squares

Students=dots

 

 

 

Y Axis= Correctness (0-100) Percentage

FIGURE 3.5. Pilot Study Participants In Quadrants (N=26)

114

I used 70% as the dividing line between high and low categories because 70% is
often a “passing” or 2.0 level on many grading rubrics. An answer key to the
questionnaire was developed as were robust answers to each question. Answers
to the questions were delivered to the participants post-study in order to add to
the beneficial outcomes.

I used the same interview strategies with minor adjustments as were used
in the full study.
A. Pilot Survey Results

The results of the pilot survey cannot be generalized beyond the
population of 26 students and teachers examined because they were not
randomly selected from a larger population of technical and professional writers.
However, in later chapters, I draw some comparisons between pilot survey
results and full study results.

From the survey content questions on copyright and fair use, general
conclusions can be drawn for this pilot population:

1) All participants are aware of copyright and fair use issues.

2) Technical writing students might have more knowledge of copyright

law and fair use in some cases than their teachers.
3) Technical writing students think copyright/fair use instruction should
be part of their education.
4) There is substantial confusion about the difference between the

ethic of anti-plagiarism and copyright/fair use.

115

5) There might be misunderstanding about the nature and coverage of
the fair use doctrine.

6) There may be misunderstandings about the differences between
unauthorized use via the fair use doctrine, and use by way of
licensing such as creative commons, or permissions granted by the
copyright holder.

7) There may be misunderstanding about the government document
exception to copyright in the US.

Because of the small number of participants, tests for statistical significance were
not conducted. However, the anticipated results of the survey were that those
with high knowledge would also have high certainty in that knowledge, and that
those with low knowledge would have low confidence. Of the 26 participants, 13
had low knowledge and low certainty, four had high knowledge and
corresponding high certainty, seven were in the unexpected category of low
knowledge but high certainty that they were correct, and two participants had
high knowledge but low confidence in that knowledge. In a utopian world, all the
technical writing teachers and students would be in the high knowledge, high
confidence category.

The only conclusions we can draw from these results are that they support
the notion of a possible correlation between confidence levels in knowledge and
actual knowledge - but the results also point to potential problems for those
participants, especially, who scored less than 70% on the questionnaire, but

have higher than expected levels of confidence that they understand copyright

116

 

law and fair use. In our current political-legal climate, thinking you are correct
about copyright law when you are actually incorrect, could bring unforeseen
fiabmfies.

wot Interview Res_ufi

From the survey scores, participants were sorted and one Master’s
student from each survey quadrant was selected for an interview in order to
measure the survey's accuracy, and also in order to see what kind of, if any,
heuristical thinking or reasoning was taking place as students made decisions on
content selection and composing in digital environments.

Kayla (low knowledge, low certainty), Beth (low knowledge, high
certainty), Sam (high knowledge, low certainty), and Shauna (high knowledge,
high certainty) were each interviewed with reference to their web compositions,
and with use of discourse-based interview strategies. Again, because of the
small number of interviewees, we cannot generalize to a larger population.

Generally, the interview data supported the placement of participants in
the survey-quadrants, thus verifying that the survey was testing what it sought to
test — knowledge levels and levels of confidence. In general, Shauna (high
knowledge, high certainty) spoke in a sophisticated fashion about fair use and
copyright issues, and felt less constrained by the law’s effect. For example, in
response to the question of whether or not Shauna would consider selling a
portion of her web composition that included a power point featuring movie
posters, Shauna replied:

That gets to be a little bit more difficult because there are
copyrighted images in there and it would depend on if I could get

117

some sort of authoritative response as to whether or not that
constitutes fair use. If it were fair use then I wouldn’t hesitate to
market it in some way if there was a market for it urn, but that’s
what would stop me is that consideration of whether or not it was
legal to use images in that way.
When pushed further on this issue with respect to a movie Shauna had created
out of popular movie clips when I asked simply “Do you think you could [use this
material legally]”? Shauna responded:
It’s my guess that it could because it’s for scholarly work and it
comes with analysis, it’s not just repurposing this so that, well from
my understanding of fair use it’s not really hurting the market value
for the films that I cut from I mean it could in the fact that I’m
criticizing them it might prevent people from going to see them but
they re not going to watch this instead of watching the movie . . .
like a critique and it’s of multiple movies. The clip is 7 minutes long I
think and there are small bits and pieces, like 5 second pieces
from 8 films I think.
The sophistication and reasoning in Shauna’s response can be contrasted with
the Beth’s (low knowledge, high certainty) response to the same type of question
regarding her digital composition. I asked Beth if she’d gotten paid to complete
her website, would she have done anything differently. She stated: “Umm... Well,
I think I would definitely think about the pictures, more... and making sure that
they weren't copyrighted, 'cause if I was gonna' make a profit, I think that would
violate the copyright rules I'm serving right now.” While Beth was aware of
copyright law, she is not conducting the kind of analysis and using the vocabulary
that Shauna did.

Some broad conclusions that can be drawn from the pilot interviews are as

follows:

118

1) Understandings of fair use and copyright law mediate the writing
practices of technical writing students.
2) Technical writing students know that composing choices would be
different in for-profit environments.
3) With more knowledge comes more sophisticated heuristical thinking.
4) While fair use considerations functioned as a heuristic, so did the
assignment sheet, design considerations, and ethical/political
considerations. Students were drawing upon all of these areas when
writing for the WW.
5) Student reflection may be the most appropriate mode to assess
invenfion.
The pilot interviews offered an automatic method to view what happens when
students are posed with certain problems during a writing exercise. Students with
low knowledge levels of copyright tended to defer to the assignment for
explanations of their reasoning, discuss ethicanoliticaI reasons, and just show
frustration. Students with high knowledge levels had more self-awareness of their
own limitations, and were also able to articulate their reasons with reference to
copyright/fair use in a more sophisticated fashion. Because of their ability to do
this, they arguably have more control over the texts they were creating.
Data Analysis
In this section I discuss general plans of data analysis for the survey, the

interviews, and connecting the survey and interviews. The research questions

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are as posed in the introduction to this chapter however I repeat them here for

your convenience.

Research Questions

 

, 1.
2.
3.
survey <
4.
k 5.
r 6
7.

interview i 8.

 

9.

What do writers know and understand about copyright and
fair use?

How confident are writers in this knowledge?

Are writers unable to express themselves fully because of
fear of copyright liability, i.e., is their digital “speech” chilled?
How important do writers think knowledge of copyright and
fair use is to their work?

What is the relationship, if any, between knowledge of
copyright/fair use, confidence in that knowledge, and levels
of “chilled speech” in digital environments?

. When writers create web texts or write for the web, does

their understanding of copyright law and fair use influence
the choices that they make?

How do writers understand copyright law and fair use as
they do rhetorical invention in digital writing?

How do writers reshape the law-as-written via their
understanding (what happens as the external law becomes
internalized)?

What other rhetorical topics are at work in writers’ minds as
they compose for the web, other than copyright and fair use?

\ 10.What kinds of things do professional writing students need to

know in order to be experts after they graduate or when they
are writing outside of the educational setting?

Questions 1-5, and to a small degree 9 were investigated in the survey. All of the

questions were explored in the interviews, but in the interviews the main focus of

inquiry was on questions 6-10.

Overview

The unit of analysis is two fold. The first unit of analysis is the system(s)

as provided by activity theory. Remember that activity theory goes by both the

terms sociocultural activity theory and cultural-historic activity theory. Another

way of understanding the system is to think of the broader system view as a view

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of cultural practices. For my purposes, I define culture as a group of individuals
who have agreed both implicitly and explicitly on the meaning-making rules for
their community. Lawyers, for example, exist in culture-of-the-law (Bowrey, 2005)
where the group has agreed that the law is rational, and that for the most part we
should abide by it, strategize our behavior in light of the law (as mediation), and
also perhaps strategize activities that might take place in spaces in-between the
law (tax avoidance strategies are one example).

Three levels of systems/cultures are identifiable in this study (See Figure
3.6). On the outermost level is the culture-of-the-Iaw and the infrastructure that
supports it. On the next innermost level is the field of technical communication
and its cultural practices as represented in the survey data. On the very
innermost level are the individual interviewee-writers. Individual writers can also
be viewed in a sociocultural activity system where the creation of an artifact, in
this case a web text, is mediated by another artifact, in this case knowledge and

understanding of copyright law.

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Copyright Law

TC Field _ Teaching, Webtexts,
1". Experts

 

Society
V

- Virtuous Citizens

 

FIGURE 3.6. Three Systems

I use the term “virtuous citizen” in Figure 3.6 in the sense that Foucault argues
that the law functions to discipline and create citizens - those who are either
virtuous or criminal. Foucault notes the nature of using the law to penalize
requires that the penalty be imperrnanent:

A penalty that had no end would be contradictory: all the
constraints that it imposes on the convict and of which, having
become virtuous once more, he would never be able to take
advantage, would be little better than torture . . . if incorrigibles
there be, one must be determined to eliminate them. But, for all the
others, punishment can function only if it comes to an end. (1977,
p. 107)

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As the product or goal in the outer system pictured in Figure 3.6, I imagine the
Iaw-as-culture configured in order to ideally produce virtuous citizens rather than
incorrigibles. The second unit of analysis is copyright law as mediational means
and heuristic as discussed in Chapter Two. In this case, for purposes of analysis
I magnify the mediational means in order to examine them more closely.

For the data analysis broadly speaking, surveys were scored and
analyzed for patterns and correlations. Discourse-based interviews (to examine
tacit knowledge and understanding) took place in the context of choices writers
made while composing. Sample texts were collected to provide a focus for the
interviews. Interviews explored the research questions, interviewees’ general
understandings about copyright law and fair use in the context of digital
composing, and interview data was used to add depth and pull out details.
Interviews were interpreted for relationships to survey results and connections to
existing research on rhetorical invention such as Haller’s (2000). Because I am
examining how law functions as mediational means, I also draw upon Foucault’s
theory of discourse as it pertains to knowledge/power.

A. Survey-Broad External Global Level Views

The survey data was analyzed in a four step process. First, it was
analyzed on the global level for findings on the variables such as chilled speech,
knowledge of fair use, confidence levels, interest in copyright and fair use -
minimal demographic data was collected, and that was analyzed as well. The
degree of difference between some scores and the differing categories of either

“students” or “teachers” as self-identified, was examined using an F test, rather

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than a T test or a 2 test. A T test would be appropriate for N’s under 30, while a Z
test is more appropriate for looking at differences between two samples (student
and teachers only for instance). An F test is appropriate when looking at
differences between more than two samples (student, teachers, and others),
although an F test and a Z test will accomplish the same results. Second,
patterns and correlations between the variables were also analyzed to learn if the
hypotheses listed above were supported. In this step I calculated the correlation
coefficient and then compared that to the verbal labels provided by Rowntree
(2004) in order to learn the strength of the relationship (weak, moderate, etc.).
For example, I looked at whether there was a relationship between level of
knowledge and level of certainty (in that knowledge) and found only a weak
relationship. In the pilot, I created a “high knowledge” and “low knowledge”
binary, forcing the sample into two categories. I did not run any test to examine
the strength of the relationship between knowledge and certainty in the pilot. For
the full-study l instead conducted a more sophisticated analysis of difference and
relationships by measuring variance along the entire trajectory of data points.

In the third phase of analyzing the survey data, I looked at the first step
data analysis through a different lens to see how copyright law transformed from
its actual text based form into something else, due to participants’
understandings. This portion of my data analysis relies more heavily on
interpretation. For example, in the survey when participants were asked the tme
or false question: “The single most important thing US. courts look at when

deciding whether or not a particular use is a fair use, is whether or not the

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original author has been attributed and/or credited,” 49% selected true, while

51 % selected false, with the best answer being false (N=340). Instead of simply
interpreting this result as a significant misunderstanding on the part of
participants, I analyze this from the perspective of how copyright law is actually
performing for a significant number of individuals. Regardless of what the law
actual says or how it’s been interpreted in case law, in practice, half of these
particularly educated digital writers think that attribution is important due at least
in part to copyright law. Therefore, for a significant number of individuals,
copyright law is standing in for the ethical doctrine of plagiarism.

Such particularly focused misunderstanding also supports Foucault's
concept of the “author-function.” Copyright law supports the author-function
because it says who can and cannot speak and in what context. Plagiarism also
does the same — citation practices reinscribe the idea of a single author by
reminding us of him forever and ever. Under Foucault’s theory, both copyright
law and the attribution requirement of anti-plagiarism serve the author-function.
The fact that a significant number of participants are confusing the two seems
justified and predictable when you realize that both concepts are attempting to
remind us that somewhere along the way, there has been a single “author, ”
although each concept uses a slightly different method to do so. The confusion
between copyright and plagiarism might also indicate that for these participants,
the ethical doctrine of plagiarism tmmps that of copyright law, simply because
even though copyright law doesn’t require attribution - it might as well since for

about one-half the population, that’s how it’s functioning. Finally, most of the

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participants are at universities or colleges and many are deeply invested in an
economy of symbolic capital via attribution. The importance of attribution cannot
be overestimated for this particular population.

In the fourth stage, survey data was analyzed on an individual level with
respect to the interviewees only, in order to learn their scores and examine any
correspondences between their interview data and their survey scores.

B. Interviews-Local Level Context and Detail Building

Interviews were analyzed in a four stage process also.

Stage One: Drawing upon preliminary findings from the pilot study, in the first
stage analysis interviews were transcribed and subsequently read holistically for
evidence of emergent patterns or themes. “Theorists in qualitative study and
discourse analysis stress the identification of salient patterns through holistic
reading and inductive analysis, which requires repeated examination of the texts
until features and their patterns emerge” ( Ding, 2007, p. 146, Barton & Stygall,
2002; Huckin, 1992). Interview data was transcribed Iine-by-line, read holistically,
and then reviewed line-by-line for salient features. For purposes of analyzing the
interviews, I adopted three of Bogdan and Biklen’s (1992) mid-range accounting
“etic” categories: 1) “ways of thinking about people or objects”; 2) strategies:
“ways of accomplishing things: people’s tactics, methods, techniques for meeting
their needs”; 3) methods: “problems, joys, dilemmas of the research process-
often in relation to comments by observers” (Miles & Hubennan, p. 61). On a
more “emic” level, based on these general categories and after the holistic

readings, I derived smaller sub-themes that included evidence of heuristical

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thinking or otherwise spoke to the issue of problem solving (or failing to solve the

problem) in digital copyright contexts. Based on the pilot studies, I came up with

these themes, or rhetorical topics:

1.

Probability Thinking (raises the concept of metis): Thinking/calculating
of probabilities, risk, weighing consequences, strategizing that isn’t
fitting in the other categories.

Copyright Considerations: Using, applying, referencing copyright law
such as asking permission, originality, etc.

Fair Use Considerations: Referencing fair use or the four factor fair use
test of section 107 (fair use elements such as educational use, amount
used, size, etc.).

Ethical Considerations: Ethical/ political considerations including
considerations of attribution.

Design Considerations: Issues of design/content rather than issues of

copyright as influencing composing choices.

After the full study interviews however, I also added these categories:

6.

Faith/religion: Reasoning based on one’s cultural background, religious
beliefs, or faith.
Employer Demands or Requirements: Reasoning based on the

demands or requirements of one’s employer.

Additionally, I found patterns in the interview data evidencing self-reflective

thinking where writers reflected on their own knowledge or lack of knowledge. I

also found patterns around the events of frustration with educational experience

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or law, and deferring agency, as in when writers had an unknowing or
nonreflective attitude about composition choices or they deferred to the
requirements of a class assignment.

An example of interview data portraying the theme of “copyright" depicted
in Figure 3.4 above is Shauna’s choice of a particular “evolution of man” image (a
monkey gradually and Iineariy standing upright and turning into a man) because
the user would find these images very familiar. Because the evolution of man
Images were so commonplace, Shauna felt they were not original enough to be
copyright protected. That these images were widely available on the web also
informed Shauna’s content selection process. In the event Shauna’s use of the
images was challenged, she could argue that the “exclusive” rights of the
copyright owner, if any, were in vain. It was her view that this composition did not
infringe on other’s copyrights, and although she used existing material, it was in a
way that created something “original” and fixed such that Shauna herself would
now own the copyrights in the remix. As an example of probability thinking
informed by metis, Shauna had carefully considered the use of others’ work in
her site, and had made sophisticated decisions on what kind of author or owner
of copyright would be more or less likely to attempt to enforce copyrights against
her educational use.

As an example of interview data portraying the “ethics” category above,
web writer Shauna applied her own ethics by cracking the anti-circumvention
code on film discs in order to take the clips and incorporate them into her digital

remix. She said:

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Like with the movies it is supposed to be illegal to circumvent the
copyright protection on the discs but I circumvented that because
the law prevents fair use which I don’t agree with so I sort of use
my own judgment about breaking that and that is the policy that I
follow.
Shauna carefully conducted a complex fair use analysis, then considered which
laws it was ethical to follow, and which laws she would break for ethical reasons.
When further analyzing this data, I decided to use a thematic-rhetorical
analysis, drawing upon my former training as a lawyer and my experience
conducting legal reasoning (Tiersma, 2008). Tiersma defines legal reasoning
accurately as an analytical process that requires looking across texts for
evidence of certain salient features, pulling these features out and from this
technique, formulating some kind of rule(s) or principle(s). As Tiersma points out,
legal reasoning tends to be more conceptual than textual. This might be
understood in the context of my study by thinking of the rhetorical topics or
patterns I have listed above as concepts rather than textual artifacts. How the
concepts interact together, and any conclusion that might be drawn across
interviews, is analyzed with legal reasoning. Legal reasoning is very similar, if not
the same, to what Janice Lauer (1970, 1979, 2004) describes as heuristical
thinking, that is having some frame of reference that one draws upon as one
conducts analysis or problem-solves, or in the reverse, heuristical thinking can be
examining a text or texts, and extracting its/their rule(s) or principle(s) (see Rife,
2009 for a discussion of this latter technique). This same kind of thinking was at

work when I conducted the study interviews, as in that case I used my former

experiences interviewing clients (or witnesses) as a frame of reference. When

129

interviewing clients, I had a certain heuristic in mind of which they were unaware.
This heuristic might include, depending on the circumstances, the strength of the
client's case based on the elements required to meet a certain legal concept. In
the personal injury setting, it an injured client visited me, this legal concept might
include negligence and causation on the part of the opposing party. Part of this
heuristical thinking also included a cost-benefit analysis - even if negligence and
causation were present, was the potential monetary award substantially greater
than the costs of proving the case? Practicing law is usually a for-profit business,
and so this kind of evaluation has to occur when one is interviewing clients in for-
profit environments. Similarly, when I interviewed study participants, I had a
heuristic in mind that included the elements of fair use, and the elements of
copyright. In the full study, I also had a heuristic in mind that included the themes
or rhetorical topics writers referenced in the pilot study. I attempted to categorize
and fit the interview data into these heuristics.21

Legal reasoning is a huge factor in every aspect of this study for three
reasons. For the first reason, legal reasoning is very close to the kind of thinking
I’m looking for in the interviews since in the interviews I was looking for
heuristical thinking. For the second reason, I cannot help but use legal reasoning
in almost everything I analyze, including the rhetorical decisions I’ve made when
writing this dissertation, and that comes from the law school experience and my
experiences practicing law. For the third reason, legal reasoning is a valid way to
generate knowledge. It’s used to create arguments in very high stakes, even life

and death contexts, in courts, before judges, in legal opinions. Other than

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disciplinary boundaries, there isn’t any reason why I should not be able to
conduct analyses similar to that used in legal reasoning with respect to the
interview data. And so, drawing upon what might be called legal reasoning,
heuristical thinking, or simply rhetorical analysis, I interpret and draw some
tentative conclusions from the interview data.

Stage Two: In the second stage of the interview data analysis, I paint
small portraits or vignettes of each interviewee, and portray how they did or did
not think about copyright law as it intersected composing choices. I include all of
these vignettes together for you in Appendix 3.6. I have chosen to use vignettes
for five reasons. The first reason is that I want to create a small historic record or
archive of what writing was like in 2007 for this handful of digital composers. I
want to create this marker because I think that in five years, things will be
different. I’d also like to repeat this study in the future and see how things
changed. The second reason is that creating these vignettes will also allow me
additional opportunity to look across cases for principles. Vignettes help the
researcher formulate key issues towards the researchers theory of what is
happening (Miles & Huberrnan, 1994, p. 81). The third reason is that in this
study, there were a small amount of interviews, but each one I felt was important
and portrayed key but diverse issues of digital writing in the 21“t century.
Vignettes are a solution to an analysis problem where small pockets of data
might be ignored. I might have selected the case studies approach instead but
then I would have to focus on just two or three interviewees. Instead, “vignettes

offer a way to mine such pockets fairly easily” (Miles & Huberrnan, 1994). The

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fourth reason I chose vignettes is because they are similar to longer profiles
(Miles & Huberrnan, 1994; see also Seidman, 1991), and I have experience
writing newspaper profiles from interviews I conducted and I can thus draw on
this experience. And finally, the fifth reason is that while the literature discusses
vignettes with the assumption that vignettes are produced with alphabetic text, I
decided to also incorporate visual vignettes of student web texts for the purposes
of offering an interpretation and also protecting participant privacy. Such visual
vignettes simply offer a brief impression of student identity that might enhance
the reader’s understanding.

Vignettes are “vivid, compelling, and persuasive” (Miles & Huberrnan,
1994, p. 83), usually narrative and storylike, and the researcher must use caution
in order to avoid misleading. Because, as Erickson (1986) points out, a single
vignette cannot provide interpretive validity within the vignette itself, “multiple
vignettes and accompanying commentary are needed” (cited in Miles 8
Huberrnan, 1994, p. 83). I therefore decided to create vignettes for all seven
interviewees, along with commentary (see Appendix 3.6). As is important in this
approach, the researcher must make sure not to pull out only the most
sensational or unique events, and should not hide data that is inconclusive or
contradictory. For example, Sarah expressed dissatisfaction with how copyright
law was covered in her education but Amanda was mainly content. Sarah went to
great pains to abide by copyright law, but prudent Leslie said she’d comply only if

it was easy to do so.

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In addition to the frame provided by the rhetorical topics listed in stage one
data analysis, an outline provided a guideline and structure for the vignettes:
. Context for the digital writing
0 Writers’ motivations
0 Multiple roles of writer
. Description of writer's digital composition, its purpose, audience,
and complexities
. Writer’s aspirations or works in progress
. Writer’s general attitude about copyright law as it intersects digital
writing
. Information writer wanted study-reader to know about copyright and
fair use in the context of teaching, Ieaming, and working
In this area of the analysis I examine each interviewee as a writer, their
motivations and purposes in writing. This allowed me to draw some conclusions
about how digital writing might change our notion of “writing,” and how those
changes might impact teaching and Ieaming.

Stage Three: As in the data analysis for the survey, in this stage I
examine how copyright law changes due to interviewees using it as they
compose for the web.

Stage Four: In the final stage of data analysis, I incorporate the survey
results for each participant into their interview data, and look for patterns and
correspondences.

Transforming the Survey and Interview Data

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In this part of the data analysis I take the interview results and map those
onto the survey results within the activity theory frame, in order to discuss and
develop two areas: one a remixed theory of authorship, and two rhetorical
invention and the law.

Limitations

In this section first I am going to discuss the limitations of the survey, the
interviews, and using mixed methods research designs. I end the section by
discussing issues of generalizability, reliability, and validity.

A. Survey Limitations

Surveys are good at measuring characteristics in large populations,
providing flexibility in what you ask, and accommodating large populations. The
online survey in this case was inexpensive - just $20.00 per month for a
subscription to surveymonkey.com. But surveys can be superficial in their
coverage of complex topics; they cannot deal well with contexts. In some ways
surveys are inflexible because once launched must remain unchanged (or risk
complicating your results). They are artificial, like experiments. According to
Babble (2005), surveys are generally weak on validity (as in testing what it is you
want to test) and strong on reliability (as in being replicable)(p. 278). As Babble
points out, online surveys are good because they are cheap and easy, but they
are less likely to represent a more general population because of lack of control. I
don’t really know what happened on the other end of the survey, because I was
not there to witness this. I also had the problem with this survey due to a low

response rate of 23% (at least from the social science perspective, where at least

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50% is the norm for publishable studies). Although, relatively speaking and in the
context of R8W, the N of 334 that finished the entire survey is high and rather
remarkable — possibly offering us a unique view of the field.
8. Interview Limitations

The interview data is limited for reasons already discussed such as the
small number of participants, and my involvement in the conversations and
community where the interviewees were situated.
C. Mixed Methods Limitations

Mixed methods approaches try to overcome some of the limitations with
any one approach to research. Even so, mixed methods research has limitations
because the researcher has to know a number of research methods, and
because of time constraints, data analysis will not go as deeply into one area or
another as might be true with a design that featured only a survey, or only
interviews.
D. Generalizability, Reliabilmr' ,Valid‘mr

The issue of generalizability asks how far we might extend the conclusions
derived from the data in the context of this study. For example, to what extent do
the results of the survey really apply to the entire field of technical and
professional writing? Similariy, to what extent do the findings from the interviews
apply to students-as-digitaI-writers, or digital writers in general, or even to writers
in general? Reliability, on the other hand, is a question of to what extent would
we produce the same results on the same population? For the survey, I feel fairly

confident that the same results would be produced for the same population at

135

this time. However, as time passes and an increasing number of individuals gain
digital literacies and/or knowledge of fair use/copyright, the results could shift.
The results could also shift due to cultural changes, legal events, international
issues, and so on.

The issue of validity with respect to study findings explores whether the
data matches up to our research questions. The validity of findings in this study
depends on the extent to which the measures and methods used in this study
actually examine what they were supposed to. For example, a question of validity
might ask whether the six point scale I developed to measure chilled speech
properly operationalizes and measures “chilled speech.” I consider the crucial
questions of generalizability, reliability, and validity to be part of my data analysis
and part of the qualifications and contextualization I make with respect to study
findings. Therefore, as part of my analysis in the following chapters I carefully
discuss these issues. In Chapter Four I discuss the survey data, drawing some
conclusions. In Chapter Five and Six I focus more on the interviews, but blend in
findings from the survey. Chapter Five looks at authorship, while Chapter Six

examines rhetorical invention and the law.

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CHAPTER 4

BROAD GLOBAL OVERVIEW: THE SURVEY
“Here is the argument. If we want to understand the mechanics of power and
organisation it is important not to start out assuming whatever we wish to
explain.” (Law, 1992, p. 2)

In the previous chapter I described in detail the study design. In this
chapter I first give a broad overview of the study's six major findings. I then
provide a global perspective on the survey data and subsequent findings. In
Chapter Three I described the study as a sequential, transforrnative mixed
methods study consisting of a survey and interviews. In this chapter, after
providing a broad overview of the study‘s six major findings, I then give a more
detailed description of the study's first part, the survey, as well as survey results.
In Chapter Five, “A Remixed Theory of Authorship” I discussed the first two
findings as listed below and provide detailed glimpses into the digital writers'
interviews via textual and visual vignettes (see also Appendix 3.6). Chapter Five
also contains implications for teaching, Ieaming, and research. In the final
Chapter, I talk about the data in the context of “Rhetorical Invention and the Law”
by discussing the last four findings listed below. As in Chapter Five, I conclude
Chapter Six by discussing the implications for teaching, Ieaming, and research.

The study's six major findings are as follows:

1. Web spaces are sites of cultural collision, or commonplaces, where
students occupy sometimes conflicting positions such that the very
notion of “studentness” is inverted. Web spaces as commonplace
challenge existing concepts such as “author" and “originality.”

2. The intertextuality of web-space-writing provides support for Foucault’s
theory that the single author is an ideological production representing

137

the opposite of its historical function, i.e. the “author-function,” in the
larger culture. “When a historically given function is represented in a
figure that inverts it, one has an ideological production” (Foucault,
1984, p. 119). No support was found for a human culture existing
without an “author-function,” whether it is a workplace culture or even a
more community-knowledge—focused culture as exists in India. Yet,
“the author" switches in and out of a subject position in relationship to
human and non-human actors.

For this group of writers, digital speech was not chilled. Copyright law
as a system of invention organized by rhetoric, produces knowledge.
Rhetorical topics congeal as a heuristic mediating the digital
composing process of writers. This study provides a small and
incomplete snapshot of this heuristic structure.

When we consider the hierarchical and embedded nature of rhetorical
topics that mediate digital composing choices, for this group of writers,
ethics trumped the law.

While the study supports the idea that laws have agency, as
knowledge and understanding increase, that agency is increasingly
diminished by the human actor. The agency of the law is connected to
where the law ends up on the AT triangle.

I also found that digital writers have some awareness of their lack of

understanding in this area and want to increase their knowledge and

understanding of the law. I discuss this result throughout the next three chapters.

Since I need to discuss the details of these findings by synthesizing both the

interviews and the survey, as well as outside materials, in this chapter I merely

summarize the findings of the survey in order to build a foundation for the more

robust discussion in following chapters where all data from this mixed methods

study is synthesized for the reader in order to extract implications for teaching

and Ieaming.

Overview

The study seeks to examine how copyright law influences digital

composing processes (rhetorical invention). The larger question is: How does law

138

influence writing? Further, the study hopes to examine relationships between
knowledge of copyright/fair use, confidence in that knowledge, and levels of
“chilled speech” in digital environments. A digital survey was administered to
provide a global snapshot of the field of technical and professional writing (TPW),
while interviews were used to explore how/if digital writers think about
copyright/fair use as they create web texts.

This chapter focuses on the survey data. Here, I do five things. One, I
analyze the presence of certain variables such as chilled speech, number of
student participants, knowledge levels. Two, I examine any possible differences
between the presences or absences of certain variables in particular populations
-the difference between knowledge levels among students and faculty, for
example. Three, I analyze the relationships, if any, between the occurrences of
certain variables. In this last instance, I discuss whether or not my stated
hypotheses can be supported. Four, I discuss whether or not my research
questions have been answered. Five, I give an overview of the implications for
teaching, Ieaming, and research as these arise across the entire study results
and findings.

As explained in Chapter Three, a digital survey was used for the first part
of my study. The population surveyed was a random selection of 155
professional and technical writing programs and NCTE writing majors on STC
and ATTW membership lists, and NCTE writing major lists as of September 2,
2007. Students and teachers in these programs were contacted directly with

recmitment and reminder emails. The survey screened out anyone who had not

139

created and published to the web a composition such as a “web page, web
space, wiki, blog, page on facebook/myspace or other social networking software
application.”

In the survey phase I sent an email with a link to the digital survey to 1,935
individuals in TPW programs throughout the US. These five research questions
were explored in the survey:

1. What do writers know and understand about copyright and fair use?

2. How confident are writers in this knowledge?

3. Are writers unable to express themselves fully because of fear of
copyright liability, i.e., is their digital “speech” chilled?

4. How important do writers think knowledge of copyright and fair use is
to their work?

5. What is the relationship, if any, between knowledge of copyright/fair
use, confidence in that knowledge, and levels of “chilled speech” in
digital environments?

But before I begin this analysis, I report the answer to the first two screening

questions in Table 4.1:

 

TABLE 4.1: Two Screening Questions yes no N
1. Have you ever completed a web composition such 91% 9% 437
as a web page, web space, wiki, blog, page on
facebook/myspace or other social networking software
application?

 

 

2. Has the web composition been posted to the web 98% 2% 395
such that it’s available to at least some people (other
than yourself or your teacher) with intemet access and
a computer?

 

 

 

 

 

 

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As illustrated in Table 4.1, throughout this chapter the reported results show a
changing N due to survey attrition. When the N changes, the level of confidence
also changes. The greater the N, the greater the level of confidence. This is why
larger populations are desirable, because they give more certainty in the results.
Remember that as Rowntree (2004) insightfully writes, “There is no such thing as
absolute 100% proof in science (or out of it). All we have is probability and levels
of confidence. People with a claim to be scientists are simply more honest about
it than others — at least when they are acting scientifically. The risk of error is
quantified and stated” (Rowntree, 2004, p. 121). With reference to Table 4.1, an
N of 437 yields a confidence level of plus or minus 4.9%, while an N of 395 yields
a slightly lower confidence level (Lauer 8 Asher, 1988). For example, if 91 % of
the respondents had completed a web composition, we can be confident that
91% of the entire population also completed a web composition, plus or minus
4.9% (95.9%-86.1% in the entire population thus created a web composition). By
the end of the survey, the N fell to 334, yielding a confidence level of about 5.6%.
Therefore, throughout the survey the confidence level is between 5.6% and
4.9%.

However, the confidence level assumes that 100% of the sample
responded to the survey. We know this was not the case since 1,935 individuals
were contacted, but only 437 initially responded to the survey, and only 334
completed the entire survey. However, the low response rate alone should not
cause the findings to be discarded, especially because in this case the

population that did respond closely mirrored the entire p0pulation with respect to

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the type of TPW program, i.e. PhD, Master’s, undergraduate, and so on. This
mirroring (shown in Table 3.2 in Chapter 3, Research Design) should make us a
little confident that the survey findings might tell us something about a particular
population in TPW. Yet, the findings have to be viewed guardedly when
considering generalizing to the entire population of TPW programs, all students
and teachers included.

Certain biases occur when using online data collection methods since at
the present moment, offline and online populations are not equivalent due to the
digital divide. Research has shown that online survey respondents are younger,
more confident about their abilities to navigate the WW, and online more often
(Zhang, 2000). While some research indicates that the content results from
postal and digital surveys are becoming similar, "to infer for a general population
based on a sample drawn from an online population is not as yet possible and
will not be possible until the online and offline populations reflect each other"
(Andrews, Nonnecke, 8 Preece, 2003). And so, to infer from the answer to the
first question, for example, that only 9% of everyone in TPW has not completed a
web composition would be dangerous. This number is probably much higher if
we also take into account the offline population which never received the
recruitment email, or rarely uses email. However, to the extent that the
population that initially responded to the digital survey reflects the “online” TPW
population, then 9% have not completed a web composition, with a level of
confidence of plus or minus 4.9%. So 13.9%-4.1% have not completed a web

composition but apparently use email. Of those who have, 2% have never

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actually published it to the web. (It is theoretically possible to create a web page
in Dreamweaver or FrontPage, etc. and not publish it).

So we must understand the survey results that I report in the context of a
response rate of 23% or less. The reported results and ensuing analysis are thus
tentative. However, it is important to frame the data with an understanding of the
nature of digital survey methods. According to Andrews, Nonnecke, and Preece
(2003), for digital surveys “email response rates of 20% or lower are not
uncommon . . . and, although rates exceeding 70% have been recorded, they are
attributed to respondent cohesiveness (eg. an existing workgroup) as often
occurs in organizational studies” (p.11). (See also Walsh et al, 1992; Witmer et
al, 1999). Numerous reasons are theorized for this including:

1. Lack of a cohesive community In online settings. When
comparing paper and electronic survey response rates, it’s been
found that those who return online surveys had a higher
connectedness to their profession and increased contact with
colleagues compared to those who returned paper surveys
(Groves, Cialdini, 8 Couper, 1992; Yun 8 Trumbo, 2000).

2. The fact that emailed surveys might be perceived as a
harassment. Studies have indicated that survey emails felt like an
invasion of the potential participant’s computer space and were
viewed as rude (Schillewaert, Langerak, 8 Duhamel, 1998;
Swoboda et al., 1997). Note however these studies are dated and

may reflect the newness of online survey methods.

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3. Lack of technological sawlness or technology focused self-
confidence on the part of digital survey recipients (Yun 8 Trumbo,
2000).
The low response rate and its relationship to the issue of “community” may point
to larger issues with TPW. This will be discussed in Part Four of this chapter.
Part One: Analyzing the Variables
Generally, a survey can gather information about individuals, and take

measurements of their attitudes, cognition, and behavior (Babble, 2004,
Backstrom 8 Hursh-Cesar, 1981/1963). The variables measured in the digital
survey were:
A. Demographics

1) Educational level

2) Student/teacherlother

3) Institutional affiliation
B. Attitude

1) Attitude towards importance of knowledge of copyright/fair use
C. Cognitive

1) Knowledge of copyright/fair use (14 point index)

2) Confidence in one’s knowledge of fair use/copyright (5 point scale)

3) Attitude towards obeying one’s conscience versus obeying the law
D. Behavior

1) Chilled speech (6 point index)

A. Dempgraphics

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1) Educational level

As Table 4.2 illustrates, the survey data shows that 20% of the respondents
were undergraduate, 13% were master's students, 25% were PhD students, 1%
were undergraduate/degree or certificate holders, 40% were graduate or
professional degree holders, and 4% were “other.” This question asked for the
highest educational level and appeared early in the questionnaire. Based on this
data, 59% were students of some sort, and 40% were graduate
degree/professional degree holders. We might say that 59% were self-identifying

as students, while the 40% degree holders were self-identifying as non-students.

4.2:

degree

 

2) Student/teacher/other

Near the end of the survey, participants were asked to self-identify as either
students, teachers, or others as shown in Table 4.3. Three-hundred and thirty-
four (334) students (41%), teachers (47%), and “others" (12%) from 64 TPW

programs and/or writing majors completed the entire survey.

 

TABLE 4.3: Student/TeacherlOther student teacher other N
How would you primarily describe 41% 47% 12% 334
yourself:

 

 

 

 

 

 

 

 

Between the beginning of the survey and the end, students went from 59% to
41% of the respondents, indicating that the attrition rate was higher for students

than for teachers. The reasons for this cannot be known, but it could be because

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the content questions were a little long and complicated, and students may have
been involved in other kinds of coursework that had priority over the survey. It
could be that only the more savvy students decided to stay in the survey for the
endurance. It could be that teachers better understood the benefits of taking the
entire survey as far as generating knowledge for the field and simultaneously
helping at least one student complete a dissertation. Ultimately though, by the
end of the survey the population of students to teachers was almost equal -
providing a good measure of how the population as a whole understood
copyright. In the “other” category were likely recent alums who were still using
their college email addresses - I personally knew of several alums who fit in this
category and had taken the survey.

3) Institutional affiliation

155 programs were contacted via students/teachers, with 64 TPW programs
and/or writing majors confirming response, for a programmatic response rate of
41%. A list of participating institutions is attached in Appendix 3.2.
B. Attitude

1) Attitude towards obeying one ’s conscience versus obeying the law

Table 4.4 shows data on the question of whether participants would follow
their conscience even if it means breaking the law on exceptional occasions. I
inserted this question in the survey to examine whether a variable might be at
work outside the law. If ethical considerations influence digital writers more than
legal considerations, that will influence the lawfulness of digital writers. A single

question is not adequate to truly measure how lawful a respondent might act in a

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given situation, but the response might indicate the need for further investigation
or provide support for interview data. The question was taken directly from the
G88 Social Science 1972 - 2000 Cumulative Codebook. Using a question from
the Codebook means that this question has been tried and tested thousands of
times, and that other data sets might be available to compare. The question is
also available through an International Social Survey Program ISSP (“a
continuing annual programme of cross-national collaboration on surveys covering
topics important for social science research")(Collins, 2007). According to Collins,
many countries use these survey questions to make local and international
comparisons. The Codebook questions are also used in social science and

statistics classes because free datasets are available.

 

 

TABLE 4.4: Obeying the Law obey follow can’t N
conscience answer
In general, would you say that 14% 73% 13% 384

people should obey the law without
exception, or are there exceptional
occasions on which people should
follow their consciences even if it
means breaking the IaW?

 

 

 

 

 

 

 

According to the results, in our TPW population 73% would follow their
conscience, 14% would obey the law, and 13% could not answer. This might be
compared to a 1983-84 British survey that compared weekly church goers with
those of no religion. In that survey, 57% of the weekly churchgoers said they
would obey the law, while 44% of the no religion participants selected that same
answer (Gill, 1999). Robin Collins (2007) reports using this question in a

comparison between US and Canada in the context of deference to authority,

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free speech, and democracy. He reports at one time he administered the
question by blind ballot to an audience of 20 “humanists” where 100% selected
that one should “follow their conscience.” Collins has administered this survey to
the international community and has results from countries across the globe.
Some examples of results include the US, where 42.7% would obey the law
without exception, while 57.3% would follow their conscience. In Canada, 25.1%
would obey the law while 74.9% would follow their conscience. In France, 15.2%
would obey the law, while 84.8% would follow their conscience (Collins, 2007).
We might draw the conclusion here that folks in TPW are more humanist than the
general US population. However, Collins (2007) also has data that shows as
educational level in the US increases, so does the willingness to follow one’s
conscience over the law on occasion. The results in this study then might support
Collins’ findings since a significant number of individuals taking the questionnaire
had advanced degrees, and all had at least some formal education — and were
situated in a field often associated with the humanities. The results here then
should not surprise us.

2) Attitude towards importance of knowledge of copyrighflfair use

This attitude question appeared near the end of the survey. It asked the
respondents how important they thought knowledge and understanding of
copyright and fair use was to their work. As illustrated in Table 4.5, only 1%
thought that such knowledge was not important. 98% believe that such
knowledge is at least somewhat important, with 79% stating that knowledge of

copyright was either important or very important. Almost half of those

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participating thought that knowledge and understanding of copyright was very

important.

 

TABLE 4.5: How Important is Knowledge of Copyright?
How important do you think it is, as a digital writer, that you have some

knowledge and understanding of copyright and fair use laws in the United
States?

 

 

 

 

 

 

 

 

 

 

 

not very somewhat neutral/can’t important very N

important Important answer important

1 % 19% 1 % 31 % 48% 334
C. Cpgnitive

1) Knowledge of copyright/fair use (14 point index)

2) Confidence in one ’s knowledge of fair use/copyright (5 point scale)

3) Areas of concern

First I give an overview of knowledge and confidence levels for the entire
population; I then break down results according to the three main areas of
cognitive inquiry. Finally, I focus on areas of concern based on survey results
where knowledge was tested. Although “confidence” might be considered an
attitude rather than a cognitive question, I discuss the data on confidence here
because It was measured with respect to the cognitive questions.

The 14 cognitive survey questions were organized to test three areas. Eight
questions were devoted to whether the writer understood the basic elements and
protections of fair use per section 107 of the statute (Table 4.6 in Appendix 4.1).
Five questions examined writers’ understanding of the differences between the
right to use someone else’s materials in context of authorized versus
unauthorized use (Table 4.7 in Appendix 4.2). For example, the questions

explored whether writers knew the difference between using with express

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permission, using under a license like creative commons, using things that are
not copyright protected, and using under the fair use doctrine. One question
explored writers’ understanding of the difference between the ethic of anti-
plagiarism and the considerations of the fair use doctrine (Table 4.8).

For global views of this populations’ scores on the knowledge portions, I
only included those who finished the entire survey (N=334). The average score
for the entire 14 question set on copyright/fair use knowledge was 63%. Based
on a traditional grading rubric where 70% is around a 2.0, or adequate, the
average score for the entire population falls short of “passing.” On the other
hand, considering the complexity of the subject matter and the questions
themselves, and considering I was testing professional writers on an area some
see as the exclusive domain of $300.00 per hour intellectual property lawyers, I
think 63% is a remarkable accomplishment. The average certainty score for the
entire population was 2.3 — i.e. somewhere in-between “somewhat certain” and
“not too certain” indicating that as a whole, the population has awareness of its
lack of knowledge (if the average certainty score was closer to 1 [very certain]
with an average test score of 63%, we would have much more cause for
concern). In a utopian worid 100% of the survey respondents would have
received 100% on the knowledge scores and a 1 on the certainty score. That is
they’d have high knowledge and lots of confidence. But for 100% of each of the
14 questions, the majority of respondents answered “somewhat certain” (a 2 on
the 5 point scale) regarding their confidence level. Unlike a number of claims

made in recent scholarship that individuals are extremely uncertain about

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copyright and fair use (Hobbs, Jaszi, 8 Aufderheide, 2007; Westbrook, 2006), the
data here indicates the opposite. If respondents were in fact extremely unsure,
we would have seen a lower average certainty score - perhaps closer to 5: “not
certain at all.” If respondents felt extremely lost and confused, we would have
seen the majority selecting “not too certain” rather than “somewhatcertain” in at
least some locations of the survey. However, we do have to take into account the
potential biases in the responding population. These individuals probably are
more tech sawy and knowledgeable about copyright and fair use, and so that as
well could explain the relatively high and stable confidence level of the
respondents. Participants who were very uncertain about their knowledge may
have been the ones who dropped out of the survey. We cannot know this for
sure.

The average score for the 5 questions on licensing versus fair use, or
authorized versus unauthorized use was 51 %. As will be discussed in later
chapters, this is one area that interviewees noted was of concern for them. The
average score for the 8 fair use questions was 71%, indicating greater
understanding in this area. On the other hand, in question 9, “The Plagiarism
Question,” (Table 4.8) less understanding was expressed about differences
between the ethical doctrine of anti-plagiarism and its requirement of attribution,
versus fair use which does not require attribution. On The Plagiarism Question,
49% of respondents were wrong, yet 60% felt at least somewhat certain that their

answer was correct.

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TABLE 4.8: Knowledge and Understanding—The Plagiarism Question

 

 

The single most important thing US True False Best N
courts look at when deciding whether or Answer
not a particular use is a fair use, is 49% 51% FALSE 340

whether or not the original author has
been attributed and/or credited.

 

 

 

 

 

 

 

Confidence very somewhat undecided not too not certain
Level certain certain can’t answer certain at all
14% 46% 14% 21% 5%

 

3) Areas of Concern
For the people by the people
One area of clear misunderstanding that surfaced in the survey, is a
misunderstanding of the government document exception to copyright (See
Section 105, Title 17 USC for details). The survey question read as follows:
Mary, a law abiding citizen, decides to use five pages of a seven
page ninth circuit court decision in her website. She legally obtains
this unedited opinion directly from the court's website. She wants to
cut and paste all five pages directly onto the html page she is
composing. She will not edit or comment on the court opinion, nor
does her webpage allow commenting by others. Before using the
text in her website, as a conscientious, law abiding person she
should be sure she is within fair use. (See Table 4.6 in Appendix
4.1)
While the amount used is normally an issue in a fair use determination (“five
pages of a seven page opinion”) in this case that shouldn’t matter because an
unedited ninth circuit court decision is a govemment document and thus in the
public domain.22 In a fair use determination, normally it would matter how much
synthesis the new author conducts, and whether the use was for research or

critique. While it’s pointed out in the question that Mary isn’t doing any of that, it

should be irrelevant because a judicial opinion is in the public domain. Therefore,

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the best answer in this case is false, because Mary doesn’t need to do a fair use
analysis even if she is a law abiding citizen. In fact, a law abiding citizen would
know about the government document exception to copyright in the US.

Yet, 68% of the respondents said that Mary should do a fair use analysis,
and 67% were very or somewhat certain that they were correct in their answer.
Pragmatically, it might not be that important to professional writers that they can
use most government authored materials without concerning themselves with
copyright and fair use. But on a more political level, I think this misperception is
important. In the US, as distinct from other democracies or other forms of
government (monarchies for example), federal government documents generally
aren’t copyright protected. The fact that the savvy and educated participants
taking the survey aren’t hearing the words of Lincoln’s Gettysburg Address:
“government of the people, by the people, for the people” as they consider
authorship of government documents is troubling since the authorship status of
government documents in the US is one of the clear markers that separates us.
A copyright information website sponsored by York University points this out:

In the United States, documents prepared by the government are
generally considered to be in the public domain, and thus have no
copyright protection. In Canada, however, the Crown owns
copyright in government documents. (Copyright and You)
One wonders whether the implications for living in a democracy have been
minimized due to the current political climate—i.e. government sanctioned

wiretapping, Guantanamo bay, government sanctioned “torture," the Patriot Act,

and so on. In the current political climate some of us, especially the humanists,

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feel very detached from govemment—authored actions. One wonders whether this
sense of detachment has also seeped into our perceptions of who owns the
govemment (and the knowledge it produces).

We should also consider here how to factor in the participant responses to
the question that asked whether one should obey the law without exception or
follow one’s conscience. As discussed above, the survey results showed that
73% would follow their conscience rather than obey the law on exceptional
occasions. From a humanist perspective, one’s conscience is ideally under the
individual’s ownership, while the law is a product of the government. If this is a
theoretical separation for these participants, it again makes sense that something
authored by the government is not seen as something authored by oneself, and
thus it would be logical that a digital writer in this context would need to either
have permission or be within fair use. Of course, since government documents
are in the public domain, fair use is inapplicable because fair use only applies to
unauthorized uses. Items in the public domain can be used without considering
fair use or permission.

The misunderstanding evidenced by the answer to this question provides
clear contrast to a question on the ability to create derivative works from
another’s copyrighted materials. The question asked:

The owner of a copyrighted novel has failed to make this novel into
a play. You decide to do so without the copyright holder’s
permission. Your derivative work, the play, closely follows the plot

and characters in the novel, but is likely to be a fair use because it
is different than a novel.

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The best answer here was false, since a play is obviously a derivative work
based on the novel, and would impair the original author’s future market. A novel
is also a creative work and so has more protection than something like a factual
report. The participants overall had a very clear understanding of these issues,
as 95% out of 350 selected the best answer. The clear understanding perhaps
emphasizes the academic economy of symbolic capital via attribution and the
ability to control the destiny of one’s creative works. It might be that the survey
respondents feel that they are stakeholders along with the novelist, but removed
from items authored by our government (since in a sense as US citizens we are
co-authors of government documents).

Here we can reconsider Foucault’s theory of the author-function. While US
copyright law as author-function (i.e. a function that deploys certain strategies
which organize information) does not prohibit the dissemination of government
documents (i.e. govemment documents are not owned by the Crown and thus
can be more easily disseminated), it privileges and reinscribes the creative
genius, the individual novel writer (by providing more protection to creative
works). This makes sense when we remember Foucault’s discussion of the
economy of discipline in a culture that no longer allows public torture, hangings,
and death by guillotine. Copyright law serves an economy of discipline because
when internalized by subjects, it hopes to control from the inside without “torture,
hangings, and death by guillotine.” A government that provides and performs
copyright law like the US government would need and want its texts to be freely

disseminated within the culture in order that such texts can be more easily

155

internalized by subjects in hopes of producing virtuous citizens rather than
incorrigibles. Perhaps it is the humanist impulse in technical and professional
writing that resists the unimpeded flow of government authored texts by seeing
the need for permission or fair use to use such documents when under the law
no such need exists.

What I am saying here is that copyright law in the US serves in a
government sanctioned economy of discipline that results in the government
having a potentially more ubiquitous presence than it might have if it locked down
its own textual productions via copyright law. Instead, it sets these textual
productions free. Some of us professional writers resist this “discipline” in its
present form. We may not want to internalize government generated discourse
even though we can do so unimpeded since copyright law holds no bar.

What is “creative” work?

If any group would challenge traditional notions of “creative“ writing, I
would think it would be technical and professional writers. While the master
narrative defining creativity might label it as producing items like poetry,
paintings, short stories, sculpture, novels, and so on (poetry and fiction is the
exclusive domain of the “creative writing” course at my institution), anyone who
has either produced or critiqued an instruction manual appreciates the vast
creativity involved in constructing a text that appeals and is understandable to a
broad audience. Yet, in the US the more traditional definition of creativity is
imbricated in determinations for purposes of copyright protection and fair use.

Fair use is less likely to cover a use of someone else’s creative work. One of the

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fair use four factors looks at the nature of the copyrighted work. Courts generally
do not find factual material as creative material. For example in Stewart v. Abend
(1990), the court focused on copyright protection of the owner’s exclusive right to
create derivative works and did not find fair use. Cornell Woolrich is the author of
the story “It Had to be Murder" and Rear Wmdow is based largely on Woolrich’s
story. When MCA re-released the film, suit was brought. The court held that the
film was not a “new work” falling under the protection of fair use. The four factors
were taken into account by the court: the infringing work was commercial (factor
one, purpose of the use), the original work was creative rather than factual (factor
two, nature of the copyrighted work), and the re-release harmed the copyright
holder’s ability to find new markets (factor four, effect on market). In this case,
the creativeness of the infringed work was one of the factors that, added with the
others, caused the court to find this use was not fair.

When asked about the issue of creative versus factual work, the survey
participants overall were not aware of the differences, with 58% answering that
creative and factual work were equally protected by copyright, while only 42%
thought that creative work would have different protection than factual work (See
Table 4.6, question 2, in Appendix 4.1). The misunderstanding could derive from
the field’s tendency to deconstruct concepts like “creative" and “factual.” It could
also derive from the field’s more sophisticated understanding of genre.

D. Behavior

1) Chilled speech (6 point index)

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As stated in the beginning of this chapter, one of the major findings in the
overall study (survey and interviews) was that while digital writers’ speech may
have been influenced, informed, and mediated by copyright law, their speech
was not chilled. In this chapter I am going to briefly discuss the outcomes of the
survey with respect to chilled speech. In Chapter Six on rhetorical invention and
the law, I will provide details on the overall finding that these digital writers’
speech was not chilled. The survey found that for the majority of this population,
digital speech was not chilled. As illustrated in Table 4.9 in Appendix 4.3, “Chilled
speech” was measured by a 6 point question set exploring whether the writer had
been asked to take others’ copyrighted material down from the web, had
voluntarily done so, or had reflected on using copyrighted materials and decided
not to even though the web composition may have been improved. The 6
questions further asked whether the writer in general felt unable to express
him/herself due to restraints of copyright law.

On a 6 point scale with a score of 0-2 being “not chilled,” 34 being
“somewhat chilled,” and 5-6 being “very chilled,” only 2.42% of the population
had very chilled digital speech. In contrast 80.38% of the population did not have
chilled speech. 17.2% had “somewhat chilled” speech. Notably, only 6% of the
population (N=373) had been asked to remove web materials by a copyright
holder or alleged copyright holder.

Survey participants were influenced by copyright law, but it did not prohibit
them from expressing themselves. While 58% felt that “the purpose or message

of a web composition [they] were creating would be better, clearer, or more

158

aesthetically pleasing to the audience if [they] could use others' copyrighted
materials without fear of legal liability,” only 14% felt they “weren’t really able to
say what they wanted in a web composition because [they] were afraid if [they]
said it the way [they] wanted, someone might sue [them] for copyright
infringement.” As I will discuss in later chapters, what was happening here was
that digital writers were considering and addressing copyright and fair use in their
writing processes, something which may have been time consuming and
frustrating, but ultimately they were able to express themselves although perhaps
not in a way that was as aesthetically pleasing as they would have liked. Later I
discuss in detail the rhetorical topics that mediated composing processes for
digital writers as they made choices for their web texts. These rhetorical topics
reach beyond copyright law and fair use, and so it therefore makes sense that
copyright law alone did not chill speech. Copyright law did not have as much
agency as some claim (See Hobbs, Jaszi, 8 Aufderheide, 2007; Westbrook,
2006).
Part Two: Differences Between Populations

In this section I discuss the differences in scores between self-identifying
students, teachers, and others with respect to the variables of knowledge of
copyright, attitude towards the importance of copyright law, and obeying the law.
In this area I am looking at differences, and therefore using inferential statistics
provides additional understanding. When examining differences between
populations using inferential statistics, the inquiry is framed with the question of

whether the null hypothesis should be rejected. The null hypothesis means

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different things in different contexts, but it proposes the presumptive is true - in
this case that there is no real difference between the averages in two populations
(students and teachers for example). When you are looking at differences
between the averages or means between two populations, each population will
have a dispersion of data points that create the average. So the question is
whether the differences between the averages is a real difference or is due to
random variation that exists in the different distribution of means. For
comparison, you could think of the null hypothesis as a kind a skepticism that any
honest researcher has, especially one that goes into a research project with
some expectations. A qualitative researcher who enters a research project with
little expectations or predictions is kind of accomplishing the same ends as the
null hypothesis, which is to resist the bias one inserts into the data — that secret
desire to find that the thing you thought you would find. The alternative
hypothesis proposes the relationship between variables that the researcher is
trying to test. If enough support is not available to reject the null hypothesis, then
the alternative hypothesis instead must be rejected. lnferential statistics provides
parameters that guide the decision on whether to reject the null hypothesis. My
discussion here will not go into the details of disciplines that heavily rely on
inferential statistics, such as education and psychology, but within these fields
there are serious scholarly debates on the validity of various statistical tests. Due
to time and space constraints, my discussion here will only touch the surface of
these issues. My overriding argument though is that claims to knowledge within

inferential statistics, like claims to knowledge in any other discipline, are

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rhetorically constructed. My analysis of the survey data therefore must be
understood from this viewpoint.

Rowntree (2004) discusses the two risks encountered as the researcher
decides whether to reject the null hypothesis. The risks are the Type I and Type
II varieties. A Type I error is rejecting the null hypothesis when it shouldn’t have
been rejected, and a Type II variety is not rejecting even though you should
have. Rowntree (2004) makes a useful comparison between these types of
statistical errors and enors that might occur in a court of law. In court, if weak
evidence is accepted to convict then the risk is that an innocent person ends up
serving time. On the other hand, if only the strongest evidence is used to convict,
a guilty person could go free. To guard against the Type I error, one can require
a higher level of significance (say that there is only a 1 in 100 chance that the
difference is random rather than a 5 in 100 chance — .1 to .5). But when the level
of significance is increased, the chances of making the Type II error also
increase (not rejecting the null hypothesis when you should have).

Rowntree (2004) points out the difficulty here because “since there is no
way of knowing whether the null hypothesis is ‘really’ true or false, we can never
tell which” type of error we are making ( p. 120). I’d add to this an analogy based
on differing theories or burdens of proof that are at work in legal determinations
(some which can be life and death decisions, just like the decisions made in
science). While inferential statistics uses terminology like “significant,” “highly
significant,” and “very highly significant,” burdens of proof in law are described by

words such as:

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. beyond a reasonable doubt: “Fully satisfied, entirely convinced, satisfied
to a moral certainty” (Black’s Law, p. 147).

. clear and convincing: “More than a preponderance but less than is
required in a criminal case” (Black’s Law, p. 227).

. preponderance of the evidence: “Evidence which is of greater weight or
more convincing than the evidence which is offered in opposition to it; that
is, evidence which as a whole shows that the fact sought to be provide is
more probable than not” (Black’s Law, p. 1064).

. scintilla of evidence: “A spark of evidence . . . used in the statement of
the common-law rule that if there is any evidence at all in a case, even a
mere scintilla, tending to support a material issue, the case cannot be
taken from the jury, but must be left to their decision” (Black’s Law, p.
1207)

The law employs different burdens in different contexts just like inferential
statistics, but Rowntree would probably argue that science is more conservative:
“they demand significance levels that ensure we are far more likely to fail to claim
a result that (unknown to us) would have been justified, than to claim a result that
is illusory . . .The emphasis is on avoiding Type I errors” (Rowntree, p. 121). The
law, I think, takes the context into account to a greater extent than inferential
statistics, since the burden of proof depends on the type of case or issue at hand
(criminal, civil, etc.). Below is Rowntree’s summary of significance levels from

inferential statistics.

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. 5% significant: 5 in 100 chance that the difference is random (arising
merely because of sampling variation)
. 1% highly significant: 1 in 100 chance that the difference is random/by
chance
a .1 % very highly significant
You can imagine how crucial it might be whether the differences are significant or
not - If a life saving vaccine was tested, not to be released unless the
differences between the population who received the vaccine and those who did
not was significant enough to justify producing and marketing the vaccine, etc.
The legal burdens as well become cmcial, because decisions based on them
could mean the difference between an innocent person being executed or a
serial killer walking free. In statistics, the bigger the difference between the
means of two populations, the more confident one can be in rejecting the null
hypothesis. But to place the descriptors of significance in context, Rowntree
reminds us that they are only verbal labels and ultimately only mean what we
want them to. The labels of significant or not significant “really add nothing to
what is shown in the figures - though they may make the researcher feel happier
that he has produced something worth while” (Rowntree, p. 118).

In order to determine whether there was statistical significance I used an F
test, rather than a T test or a Z test. A T test would be appropriate for N’s under
30, while a 2 test is more appropriate for looking at differences between 2
samples (student and teachers only for instance). An F test is appropriate when

looking at differences between more than two samples (student, teachers, and

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others for example), although an F test and a 2 test will accomplish the same
results. In the pilot, I created a “high knowledge” and “low knowledge” binary,
forcing the sample into two categories. For the full-study I instead conducted a
more sophisticated analysis of difference by measuring variance along the entire
trajectory of data points.
Knowledge of Copyright Law

As shown in Figure 4.1, teachers’ average score for knowledge of
copyright and fair use was 68%, while students was 57%. Those who self-
identified as “other” had knowledge levels between teachers and students at

62%.

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Knowledge levels Students, Teachers, Others

Knowledge Levels
80% Teachers, 68%

   
 

Knowledge Levels

Knowledge Levels Others 62%

Students, 57%

50%

 

0%
Y Axis: Test Scores = %

FIGURE 4.1. Knowledge Levels for Students, Teachers and Others

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Looking at only the differences between the students and teachers, the F is .017,
indicating a significant difference between their knowledge levels. The difference
between the student scores and the others’ scores yielded an F of .87, indicating
little difference, and the F of .09 between the teachers and the others yields more
significant difference. The key point here though is that there was only a small
difference in knowledge levels between students and teachers (9%). On the
extremely complicated subject of copyright and fair use, authorized use and
unauthorized use, the student and teacher population hardly varied. Implications
for teaching and pedagogy are discussed in detail in Chapters Five and Six, but
the survey data certainly affirms that in some cases, students might know more
than their teachers (remember this population is likely tech sawy). In the pilot,
some students knew more than some teachers, and there isn’t anything here to
refute that.

How Immrtant is Kpowlegge of Copyright Law?

Based on the survey data we can say that for the vast majority of survey
participants regardless of whether they were students or teachers, knowledge of
copyright law was at least somewhat important to their work as digital
composers. Table 4.10 illustrates the different answers to this survey question

based on whether the respondent was a student, teacher, or other.

166

 

 

 

 

 

 

 

 

 

 

 

 

TABLE 4.10: How Important is Copyright?
How students% teachers% others%
important

not very 0 .64 4.76
somewhat 19.85% 20.51 1 1.90
neutral .73 .64 2.38
important 31.61 29.48 35.71
very 47.79 48.71 45.23
important

note: numbers shown only to 2"d decimal

 

 

Running an F test on this tells us that the differences between these populations
is not significant (F between students and teachers is .99 and between students
and teachers and teachers and others is .91 ). Interestingly, the highest
percentage of folks who believe copyright knowledge is not very important is
among “others.” Based on interview data this makes sense since “others" were
likely alum who were working, in the case of one interviewee, for an organization
that provided scripts and forms to handle the copyright problem.
Obeying the Law

In the survey, participants were asked “In general, would you say that
people should obey the law without exception, or are there exceptional occasions
on which people should follow their consciences even if it means breaking the
law?” For purposes of analyzing differences I only look at students and teachers
in the categories of “obey the law” and “follow your conscience.” 14% of students
and 16% of teachers stated they would obey they law, while 86% of students and
84% of teachers said they would follow their conscience. There was no statistical
difference between these populations selections (F=.62). Students and teachers

alike trend toward the humanist perspective on this issue.

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Part Three: Analyzing Relationships
In this section of the survey data analysis, I examine the strength of
relationships between variables, or the correlations. I also discuss regression, or
the nature of that relationship, positive or negative (Rowntree, 2004). There are
three kinds of correlations: positive, negative, and zero. A “zero” correlation
means the number approaches zero but it is almost impossible to find two
variables that have no relationship. Also, it is noteworthy that just because a
correlation exists, it does not mean there is causation. A correlation between two
variables could be coincidental. (While it might seem like washing your car
causes it to rain, when this occurs it is simply coincidental).
Some examples of correlations (taken from Rowntree, 2004) are:
a rainfall and attendance at football games (a negative correlation - the
more rainfall, the less attendance at games)
0 age of a car and it value (a negative correlation — the greater the age of
the car, the less its value)
. length of education and annual earnings (a positive correlation - the
greater years of education, the higher the earnings)
0 ability to see in the dark and quantity of canots eaten (no correlation!)

The following diagrams in Figure 4.2 show what one would expect to see

representing the three basic types of correlations:

0

FIGURE 4.2. From Left; Positive Correlation, Zero Correlation, Negative
Correlation

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Rowntree (2004) notes that the correlation between two variables is a fact, but it
is a matter of interpretation whether that relationship is good, bad, weak, or
strong. The verbal labels that have been assigned to the various correlation

coefficients are:

Correlation Coefficient

0.0 to 0.2 very weak, negligible
0.2 to 0.4 weak, low

0.4 to 0.7 moderate

0.7 to 0.9 strong, high, marked

0.9 to 1.0 very strong, very high

While Rowntree does provide these descriptors, he notes that they are not used
consistently, and that ultimately one must make their own interpretation based on

the data.
The hypotheses tested in the survey were as follows (see Appendix 3.4 for

detailed definition and explanation of each hypothesis):

H1: The more knowledge one has about fair use, the less one’s speech is chilled.
H2: The higher the educational level, the higher the knowledge about fair use.
H3: The higher the knowledge of fair use, the more likely one is willing to see
exceptions to obeying the law.
H4: The higher the knowledge of fair use, the higher the certainty one’s
knowledge is correct.
H5: The more certain one is in their knowledge, the less one’s speech is chilled.
H6: Persons who believe in exceptions to obeying the law will have lower levels
of chilled
speech.

Discussion of Relationships

H1 posited that the more fair use knowledge one had, the less their

speech was chilled. This could not be supported by the data because the

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correlation was very low (-.075) showing a “very weak” or negligible relationship
between the variables. This weak relationship might be because over 80% of the
population did not have chilled speech. H2 asserted that the higher educational
level, the higher would be the participant’s knowledge of fair use. This hypothesis
is already indirectly supported by the higher scores teachers received compared
to students on the copyright and fair use knowledge test. However, as for a
statistically strong relationship, that was not supported in the data, although the
relationship (.28) was stronger than that in H1.

In H3 it was hypothesized that the higher one’s knowledge of fair use, the
more likely one would follow their conscience. The data again showed a very
weak relationship between these variables (.042). This may have been because
more than one half of the population would follow their conscience. H4 posited
that the higher the knowledge of fair use, the higher would be the participant’s
certainty that they were correct. The correlation coefficient between these two
variables showed a stronger relationship than that in H3, but still a weak
relationship (-.223). The correlation is negative because higher certainty received
a lower score (a 1 was very certain). Therefore, the higher the test score, the
lower the certainty score — the more one knew, the more confident they were.
The correlation is better than “very weak” or “negligible” but not as great as
“moderate.” None of the relationships allow us to reject the null hypothesis.
Figure 4.3 shows the dispersion of scores of knowledge and certainty for

participants. Also included is a trend line showing the weak nature of the

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relationship. If the relationship was strong, the trend line would be more vertically

slanted.

Is there a Chilling of Digital Communication?: Knowledge 8 Certainty Trends

358.

20
10 .

(N=334)

 

.* - - Participant Scores I

,, Linear (Participant Scores)

 

0

 

if

 

1.0 1.5 2.0 2.5 3.0 3.5 4.0 4.5 5.0

X Axis: Certainty (1 =very high; 5=very low)

Y Axis: Knowledge (in percent with 100 = perfect score)

FIGURE 4.3. Showing the Relationship Between Knowledge and
Certainty In that Knowledge

H5

and H6 also showed very weak relationships. H5 looked for a

relationship between certainty and chilled speech (-.081). H6 posited that

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persons who believed in following their conscience would have lower levels of
chilled speech (.097). However, it would be difficult to find correlations in these
variables because this population was very homogeneous both on its low level of
chilled speech and on its willingness to follow its conscience. Because of this,
trends are difficult to establish based on the measures provided by this data. So
the kind of differences imaged in these questions was not present and as stated
the null hypothesis cannot be rejected. However, we do know that Collins (2007)
found with a different population and a different survey, a 30% increase in
willingness to follow their conscience for US degree receivers. The data here
has not provided anything to negate Collins’ findings.
Part Four: Answering the Research Questions

In this section I am going to give a brief overview of how the survey data
answers the research questions that were geared to the survey. I am also going
to discuss how the issue of community in TPW arises due to low response rates,
and I end this part by reporting on how the survey supported the tentative
findings from the pilot study. Although I have covered how the research
questions were answered throughout this chapter, I am going to summarize it
here again. With respect to what writers know and understand about copyright
and fair use and how confident they are, we can say that on this complicated
topic, professional and technical writers have a decent understanding (63%) of
the issues, more understanding in the area of fair use compared to
understanding in the area of licensed use. The population has self-awareness of

the limits of its knowledge. The differences in knowledge levels between students

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and teachers was minimal pointing to the ways that cyberspace possibly
challenges those subject positions.

With respect to whether copyright law is causing such fear that writers
cannot fully express themselves (Porter, 2005; Westbrook, 2006), our data does
not support that. Less than 3% of writers had very chilled speech, only 6% had
been asked to take anything down from the web, and only 14% felt unable to
express themselves due to fear. Although, writers acknowledged that their web
creations may have been more aesthetically pleasing if they didn’t have to worry
about copyright. Note that it is possible that speech was not chilled for two
reasons, one that digital writers weren’t fully aware of some of the legal risks they
were taking (with an overall score of 63%), and second that copyright
stakeholders are not coming after the educational community, yet. This second
aspect was found in a recent study by the Berkman Center for lntemet and
Society at Harvard Law School (Fisher 8 McGeveran, 2006). The Berkman
finding was supported in my study as well.

As far as how important writers think knowledge of copyright and fair use
is to their work, we can say that hands-down, the vast majority of students and
teachers think it is at least somewhat important, with almost half indicating they
think it is very important. As far as the research questions that asked what the
possible relationships were between knowledge of copyright/fair use, confidence
in that knowledge, and levels of “chilled speech” in digital environments, the

survey data was unable to find any relationships between these variables

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possibly for the reasons discussed above - mainly that the population was very
homogenous.
Culture and Communmr'

In addition to exploring the research questions as discussed above, some
issues with the survey administration itself might inform us.23 The overall
response rate was 23%, low by social science standards. Based on my earlier
discussion of possible reasons for low response rates, we need to raise the issue
of cohesiveness or community in TPW. My experience administering this survey
supports the idea that TPW lacks cohesiveness or community in three ways.
One, as l constructed the study population, in order to obtain the master list of
programs I had to create a bricolage between three membership lists, and I
realize those lists are not exclusive. The lack of a definitive publication on our
programs is significant. Two, the problem I encountered in simply trying to locate
contact information for faculty, and especially students, also points to what I
argue is a serious problem with the “community” and who is allowed
representational space in the field (See Knight et al., 2008 for a detailed
discussion of this). And three, as noted above there is some evidence that
response rates are low when a sense of cohesion is low among the community
studied (Yun 8 Trumbo, 2000). I had a low response rate so this third point is
supported.

Grabill (2001) defines community as a group that has shared values,
networks, relationships, shared meanings, and socially constructed boundaries

created by shared norms. But in the field of TPW are debates on whether or not

174

such shared norms and values exist. For example Connors (1992), Dobrin
(1983), Durack (2004), Lay (1991 ), and Rutter (1991 )(among others), outline
debates within the field of TPW regarding how we define ourselves as a
profession, what matters, and what we study, while writers such as Chamey
(2004, 1998), Haswell (2005), Johanek (2000), North (1987), and Phelps (1988)
document debates on appropriate methodologies and resistance to the use of
typical “social science” and/or “empirical” research design in TPW or composition
studies.

From my view, the low response rate I received at least tentatively
supports the notion that we are not cohesive as a field, that there is little sense of
community, and that, perhaps, “social science” methods are not supported.
Perhaps we share few cultural practices as far as teaching, pedagogy, use of
technology, research methodologies, and curriculum.

Simultaneously, I think Grabill (2001) at least implies that a researcher
may facilitate the construction of community. Perhaps as the 11 weeks went by
when I was collecting data, the act of researching the “community" created ad
hoc networks, connecting individuals - responses to my survey did snowball and
then taper off near the final weeks. By selecting sociocultural activity theory to
frame my exploration of the field, I did impose a certain shape on TPW - thus
creating a community where perhaps there was none. In Chapter Two I
explained that I selected activity theory in part as a community building activity, in

order to see the activity of writing in a system. Whether the community I

175

examined exists only on my triangle, or as well in some other more external
space remains something to be explored.

Grabill’s definition of community easily maps onto my definition of culture
as I stated in Chapter Three: “a group of individuals who have agreed both
implicitly and explicitly on the meaning-making rules for their community.” The
scholarly debates about methodologies as referenced above point to what might
be a serious problem with the culture/community I am examining, since
methodology is in my opinion the very essence of a culture’s identity and
sovereignty. Recall that in Chapter Three I described the three levels of
systems/cultures that I examine in this study: 1) the culture-of-the-law and the
infrastructure that supports it; 2) the field of technical communication and its
cultural practices; 3) the individual interviewee-writers. The survey data provides
a view of technical communication as a field — but because of the low response
rate we have only a glimpse of some members. Ultimately, Ieaming about our
field as a collective will prove difficult from a research perspective if we do not
participate in studies that examine our own collective practices.

I end this part by reporting that all tentative conclusions from the pilot
study as listed in Chapter Three, were further supported in this survey. That is:

0 participants were aware of copyright and fair use issues

. some students had more copyright knowledge than some teachers
(but overall teachers had slightly more knowledge)

. TPW students (and teachers) think copyright/fair use instruction

should be part of their education

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c There is substantial confusion about the difference between the
ethic of anti-plagiarism and copyright/fair use
. There are some misunderstandings about the differences between
authorized and unauthorized use, i.e. the nature and coverage of
the fair use doctrine.
c There is misunderstanding about the government document
exception to copyright.
The survey findings here then have been supported in two studies that took place
about two years apart. Therefore we can feel fairiy confident that these findings
are accurate.
Part Five: Overall Implications for Teaching, Learning, and Research
Chapters Five and Six contain lengthy explications of the implications for
teaching, Ieaming and research emanating from this study. However, here I am
going to reach across all of my data analysis and synthesize those implications
which fall into three main categories: 1) suggestions for changing TPW
curriculum and pedagogical approaches; 2) continued disciplinary theory building
in the area of composing process theories as well as research design; and 3)
additional research with respect to a number of complexities and contradictions
that emerged from this study.
Implications for Changing TPW C_urriculum and Pedagogical Approaches
The findings of this study show that the vast majority of teachers and
students believe that knowledge of copyright law is important to their work as

digital writers. Yet, they scored only 63% overall on this knowledge portion of the

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survey. We should explore the idea that explicitly teaching copyright law in TPW
should become the norm. In the interviews it was found that students (and recent
alums) wanted to learn and experience all the various laws that impact
professional writing, such as privacy law, defamation law, and contract law.
Teaching copyright might be folded into a core course where the laws of public
writing in general are taught, but taught under the lens of rhetoric.

Because there is a lot of interest in this area which will not quell in the
digital writing environment, some programs might be very smart to explore
developing a concentration within, for example, a four year undergraduate
professional writing major specifically in “Law, Rhetoric, and Community“ or
“Law, Culture, and Community.” Such a concentration could be very helpful for
students who want to continue in a legal career, work as journalists, work as
consultants, or become legal experts in their organizations, including non-profits.
Such a concentration would be very helpful for students who want to advocate for
others via their writing, as many professional students do desire.

At Michigan State University for example, the James Madison School of
Public Policy (very distinct from MSU’s professional writing program), an
undergraduate residential college, has constmcted an identity for itself as a
feeder to law schools. However, the students there are generally indoctrinated
into conservative leaning political views and heavily quantitative social science
methodologies. But if we reflect on how professional writing degree holders can
best suit our mission of civic participation and “making the world a better place,” if

there’s anywhere a liberally educated professional writer could create change, it

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would certainly be in the legal/political field. A concentration in professional
writing that specifically focused on connections between law and rhetoric seems
absolutely invaluable and very much within our mission of service-to-community.

In this study I found that students sometimes know more than their
teachers about copyright, and also that students are doing very complicated
digital writing outside of the classroom. We have empirical evidence of this now. I
think that these findings should shape our writing pedagogies and I would
certainly welcome explorations in this area by other scholars in our field.

Since as writing teachers we care deeply about “The Author" and what
that means, we need continued examination of authorship in the 21"t century. My
study only complicates our existing scholarship in that I found the “single author"
and his “creative genius" to be as honest as what the US flag represents (unity,
freedom, harmony, bravery, etc.). I found the single author, like the US flag, is an
ideological production. And if the author is not working in solitude even though he
is “alone,” if digital writing travels through space and time and collapses the past,
present, and future all in a 10” x 15” space, then we have to consider cross-
cultural issues, issues of attribution and plagiarism, and issues of collaborative
work in an entirely new light. We have to consider what it means for writing
programs who insist on clinging to “the essay“ — what I am suggesting here is
that “the essay” in its paper form, is functioning as a site of resistance for some
writing programs, and for students is becoming a “performance of authorship”

rather than anything even partially analogous to the “authorship” students are

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experiencing in “real life” outside of school. I’m not sure how helpful, if at all, the
rendering of such performances is to students.

Further, based on the exploration I venture into in Chapter Five, spurred
by Rob, the interviewee from India, I am very, very skeptical about any
community that claims its knowledge is “community-owned.” Every
community/culture has methods that organize meaning, that say who is and is
not permitted to have or grow certain types of information. I seriously call into
question the label “community-owned” knowledge which tends to be regularly
applied to more marginalized peoples. We need a much more critical view here.
The impact of a changed understanding of authorship, one where perhaps it
does not matter who is speaking, the impact for teaching writing in the 21"t
century, especially in digital, networked environments, is overwhelming. We need
to work together to unpack and organize this.

Finally, my ideas as expressed in Chapter Five regarding other cultural
practices in cross-cultural contexts producing the same end result as US
copyright law, might provide additional methods for situating a study of copyright
law in TPW. Based on my study findings, at the pragmatic level it cannot be
supported that students are living in a “culture of fear” although some in our field
have claimed so. This idea of students in US college classrooms living in a
culture of fear and uncertainty becomes even more tentative when one considers
the other kinds of cultural practices that organize meaning. Situating US

copyright law restrictions in a cross-cultural, international context may deeply

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impact how copyright law is taught. We know that because of digital writing, inter-
cultural issues have become more important than ever to TPW.

Mons for Agditional Qiepjplinarv Theory Building in the Area of Commsing
flrpcess Theories as Well as Research Design

The mediational heuristic I describe in Chapter Six, one that serves as
guide-marks for students as they compose for the web, really complicates other
writing process theories such as that espoused by Flower and Hayes (2003). As
a field we really need more empirically based studies on writing processes,
studies that will inform our curriculums and pedagogies. My interest is digital
writing, but studies of analogue writing would also be very useful and provide
points of comparison.

We need additional theories that help us understand why inventional
heuristics work sometimes but not others. I am interested in the connection
between power and invention, as well as metis and invention. One place I see
potential for exploration here is gaming theory and its intersection with rhetoric
studies, since both successful gamers and successful rhetoricians use metis to
win by deception. But this is not my research trajectory so I invite others to pick
up some of the many research trajectories suggested by my study. Exploring
connections between legal reasoning and performances based on legal
reasoning, and our rhetoric-based concept of metis also might help develop our
theories of invention. Studies involving the exploration of cross-cultural

inventional strategies for organizing meaning and creating “truth” are also

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needed as well as studies involving authorship in the workplace and how that
might differ from authorship in the classroom.

With respect to implications for research design in rhetoric and writing, the
one take away I try to offer in Chapter Five is that claims to truth and knowledge,
even in statistics, are rhetorically constructed, organized by rhetoric, and are in
the realm of probable knowledge. Thus, as Patricia Sullivan suggested in her
2008 CCCC’s presentation in New Orieans, mixed methods research designs
might be very promising for researchers in our field. Quantitative methods render
rhetorically constructed probable knowledge just as do classic henneneutical
interpretations. Thus, our field should not fear using quantitative methods such
as my survey, because we have the understanding and skill to unpack their
rhetorical nature. Yet, we also do not want to let go of our qualitative traditions.
Mixed methods allows us to do both. Because we can do both, I think we need to
exercise much more caution in claims that we make unless those claims can be
backed up by empirical evidence or othenrvise substantiated. In my study I found
digital speech was not chilled and students and teachers were definitely not living
in a “culture of fear,” contrary to the claims of other scholars in our field. Overall
regarding the use of mixed methods though, I think as a field we could really

triumph in this area.

Implications for Additional Research with Respect to a Number of Complexities

and Contradictions that Emerged from this Study

This study, in the abstract, focused on writing as a tool/technology-

mediated activity and is grounded firmly in an understanding and implementation

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of the rhetorical canon of invention. To study copyright in light of theories of
invention is a unique approach to the “copyright problem.” Using inventional
theory as a backdrop, l was able to leverage the tools and history of rhetoric
theory in order to shed new light and new understanding on the copyright
problem. Notably, in the first chapter of this dissertation, I review scholarship
within rhetoric and composition as well as legal studies with respect to examining
the copyright problem as one of law. As Danielle Nicole DeVoss has pointed out
to me in casual conversation, one curious aspect of this literature review is the
lull that occurred between 1998 and 2008 in rhetoric and composition where
disciplinary interest about copyright seemed to cool.

I theorize that perhaps it is because within rhetoric studies the initial
scholarship developed around the idea of simply defining copyright law and its
implications for digital writing, and subsequently arguing that since it is relevant
for writers, especially digital writers, it should be taught. For some reason,
empirical studies were not generated by this initial coverage of the topic within
rhetoric and composition studies. I think that if an area of scholarship is important
to our field, as copyright and its attendant concept of authorship are, we really
need to continue initial indications of interest with empirical studies in order to
test our developing ideas. Back in the late 1990’s, we failed to explore the
copyright problem as a problem of invention rather than a problem of law which
may have contributed to the lack of developing a sustainable research trajectory

within rhetoric studies.

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What I mean to say is that the implications of my study and the robust
discussion here, are that empirical studies can be very, very generative when
one uses a concept from rhetoric, like invention, to study writing. All kinds of
research could develop from this simple idea.

As will be explored in Chapter Six, there is not a clear link via my data to
knowledge and understanding and certainty in that knowledge. The findings are
contradictory. Somehow I believe a predictable link of some sort lies in exploring
the “toolness” of any mediational heuristic. Additional studies are needed here as
well.

Finally, I think the kind of contributions researchers in rhetoric and
composition studies could make to legal studies and practice is immeasurable
and almost completely unrealized. I think we could inform theories of law school
pedagogies, of legal methodologies, of the rhetorical moves made to achieve
justice, of legal writing including judicial opinion writing. I would certainly welcome
any work in our field that picked up where Chaim Perelman left off, and explored
the connections between law and rhetoric which are very deep and complicated.

This is where my research career begins, and I welcome all assistance.

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CHAPTER 5

A REMIXED THEORY OF AUTHORSHIP

So far I outlined the copyright problem with respect to digital composing.
I’ve explained my theoretical framework going into the study and justified my
study design. I also provided an overview of the survey findings as well as an
overview of implications for teaching, Ieaming, and research. In this chapter I
discuss a theory of authorship that came out of the data collection. As I’ve
mentioned before, my theoretical framework going into the study shifted during
data collected. It proved inadequate as interviews were conducted and the need
arose for further assistance in analyzing the webspace as commonplace and
remix-authorship’s intersection with copyright law. As stated in Chapter Two,
Prior (2004) implies tracing the writing process is simultaneously a study of
rhetorical invention and authorship. I’ve used activity theory (AT) to theorize and
explore the digital composing practices of web writers since Vygotsky's AT in
some respects is a theory of invention - rhetorical invention and the law are
discussed in the next chapter. Yet AT has not been previously used to explore
authorship. Thus, I turn to Foucault since he wrote about the author-function. As
mentioned in Chapters One and Two, Foucault for the most part discusses the
author in the very limited sense of a literary figure. I believe that when
subsequent writers interpret Foucault, they accept the limited sense of author

that Foucault presents on the surface, but which in fact is much more complex

185

and very connected to Foucault’s other theoretical outlooks on law and
institutions.

In the piece I mentioned in Chapter One by Mark Rose (1988), he outlines
the events leading up to Donaldson v. Becket, (1774) where Scottish bookseller
Donaldson published The Seasons, a book whose copyrights were owned by
Becket and several other London publishers. In 1774 Great Britain, the House of
Lords (as an appellate court) decided the issue of whether copyright was a
common law right that lasted in perpetuity, or a statutory right with a fixed term.
The final decision was that copyright should be limited in time. Framing the
outcome of this case with Foucault’s “What is an Author?”, Rose argues that the
author is a proprietor and originator. Like Foucault (on the surface), Rose
discusses the author in the limited sense of literary figure who expresses himself
In books. In a very recent collection, Amit Ray and Erhardt Graeff (2008) come
very close to perceiving a broadened concept of Foucault’s author-function in
their piece “Reviewing the Author-Function in the Age of Wikipedia” (2008). They
explain how in Foucault’s “What is an Author":

Much of the essay involves a careful explication of how we might
conceive of the author-function. Importantly, Foucault is careful to
note its variability. Authorship exists within different discourses,
defining characteristics such as originality, authority, and property
that vary according to the particular discourse. (p. 42)
While Ray and Graeff note that Foucault did not want to replace “author” with
“author-function,” this is ultimately how they use the concept “author-function” in

their chapter. “Foucault’s aim in undertaking this critique of the author . . . is to

query naturalized conceptions relating author to work“ (p. 42). However, when

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reading this single essay by Foucault in light of his other work on law and
institutions, and in light of Foucault’s deep connection to actor network theory
(ANT), although subsequent interpreters of Foucault take literally his discussion
of author-function only in the context of literary “author,“ it’s clear Foucault was
talking about something much more transcendent and ubiquitous than a literary
figure. By drawing upon ANT’s concepts of radical symmetry and actor networks,
perhaps I can provide a more robust discussion of Foucault’s author-function that
might help a small bit in our understandings of digital composing authorship in
copyright contexts.

To provide a context for Foucault’s discussion of author-function (a
context I draw upon as well in the next chapter when I talk about rhetorical
invention and the law), Foucault (1977) writes about power and institutions
including law and education. Remember as I said earlier, US copyright law is an
author-function because it counters our fear of the proliferation of meaning by
deploying certain strategies that organize information. Copyright law attempts to
organize knowledge production by dictating who is and is not allowed to speak.
Foucault focuses on mechanisms of power such as (copyright) law and the
discourses it produces. He specifically talks about educational institutions and
the law as mechanisms for punishment and control. Remember my study
examines writers in the educational setting as well as law’s mediation power.
Therefore, the context for my study fits well with Foucault’s foci. According to

Foucault, both education and law contain mechanisms that create and reinscribe

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the “individual” by classifying, separating, and endlessly dividing (both through
discourse and through physical space).

Copyright law is an author-function in that it classifies and divides by
assigning exclusive rights to copy, perforrnldisplay, create derivative works, and
distribute to the creator of an original, fixed work. These rights also facilitate the
construction of “individual.” Foucault’s theories on authors, laws, and institutions
intersect in this study because my view is that the “author” is a creation of
practices both in education and in law — and my study is about writing in an
educational community and the influences of law on writing processes.
Underneath these practices though, upon examination, the “author” disappears
because he is actually an inversion of the practices that produce him. The author
is a node in the network, is a product, is produced by a complicated set of
practices that attempt to organize meaning (US copyright law and MLA citation
practices for example). The author comes after the text emerges, not before. A
number of restraints and facilitators are in place that allow a text to emerge, that
allow one text to emerge and not another. These restraints and facilitators are
“author-functions” as is US copyright law. 1

The author derives in part from any practice that produces the individual,
and as Foucault states, both education and law reinscribe the individual. The
self-defined student-authors in my study are to some extent products of the
educational institution. As for the legal nature of these writers’ existence, the US
constitution and other US laws define, protect, and thus reinscribe the

“individual.”24 As Chaim Perelman (1963) cleverly points out, “the authority of the

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law is derived from the individual’s prior autonomy — that is, from his capacity to
take on commitments and from the correlative obligation to honor them” (p.11).
The law's prose reflects an image back upon us of an individual capable of being
virtuous and law abiding, or of being an incorrigible. The law's prose is one of
many artifacts that constitute us as individuals.

In copyright contexts, Foucault offers a new lens to understand how
copyright law and events like stakeholder “anti-stealing” media blitzes function.
Foucault offers two examples on how power works to produce discourses. His
two examples are the communities or colonies created by leprosy, and the
separating and dividing caused by the plague:

The leper gave rise to rituals of exclusion . . . the plague gave rise
to disciplinary projects . . . the exile of the leper and the arrest of
the plague do not bring with them the same political dream. The
first is that of a pure community, the second that of a disciplined
society . . .underlying disciplinary projects the image of the plague
stands for all forms of confusion and disorder, just as the image of
the leper, cut off from all human contact, underlies projects of
exclusion. (Foucault, 1977, p. 198-199)
In the 21“t century, the “binary branding and exile of the leper“ is applied as in
branding individuals as copyright violators, (copyright) terrorists, (copyright)
criminals, and hackers (see Logie, 2006 for a discussion of this branding in the
language of rhetoric). And the disciplinary mechanisms as products of fear of
plague, are the same kinds of mechanisms that arise via stakeholders’ fear of
copyright violators. The “existence of a whole set of techniques and institutions

for measuring, supervising and correcting the abnormal brings into play the

disciplinary mechanisms to which the fear of the plague gave rise” (Foucault,

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1977, p. 199). The increasingly potent disciplinary mechanisms of US copyright
law have arisen from the fear that one’s property will be unjustly appropriated in
such a fashion as to deprive stakeholders from what they perceive as due profit.
Notice that the fear here producing more and more copyright restrictions is on the
side of copyright holders, rather than student writers as Westbrook (2006)
characterizes. Fear is powerful on either side of the copyright debate.

The dividing techniques that Foucault refers to are seen in copyright laws’
categorizing of behavior (the four factor fair use test for example) and
enumerated set of punishments (higher damages for willful and wanton
infringement). This is true with all formal US laws, not just copyright. In a less
negative context, the co-existing community building and individual sustaining
nature of our US law is easy to locate. The US Constitution preamble begins:
“We the People of the United States, in Order to form a more perfect Union,
establish Justice, insure domestic Tranquility, provide for the common defense . .
.” (1991, p.1). The “people” are a union, a community like those isolated in leper
colonies,25 but comprising the union are individuals — like those with the plague,
marked, separated, and counted each night. The 14th amendment is an easy
place to find a reference to the individual: “nor shall any State deprive any person
of life, liberty, or property, without due process of Iavv” (1991, p. 26). The US
courts and legislatures thus spend much time balancing the interests of common
good against individuals’ rights.

Foucault's discussions of how power produces discourses that serve to

regulate human behavior are useful when examining the law's influence on digital

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composing because Foucault flattens the connotations and disconnects existing
relationships that might cloud a researchers observations (that Foucault does
this should remind you of ANT). But Foucault does not clearly connect the law-
function and the author-function. If he had done so, we might have been able to
derive a more robust understanding of the cultural practices that produce the
“author.” ANT’s concepts of radical symmetry and actor networks are useful for
making some connections and conducting analysis in this area.

Actor Network Theory (ANT)

While Foucault provides some very useful lenses with which to examine
the function of the law and the author-function, there are some shortcomings in
his work as far as connecting the two, and as far as broadening our
understanding of the author-function. Fortunately, actor network theory (ANT)
helps us out here because there are a number of similarities between Foucault’s
theories and ANT. Blending Foucault and ANT together in the context of an
authorship discussion is helped by ANT’s concept of radical symmetry - the
flattening of existing relationships and contexts, and the idea that non-human
actors have agency. The concept of radical symmetry is needed in order to “see”
the author-function in places we might not expect. Recall that in Chapter One
when I was discussing the five categories of existing research on intellectual
property related topics, to wit, “Historical Studies in IP and Rhetoric Contexts,” I
ended that section by noting how writing on history, or even current events “are
sometimes writing about cultural practices that strongly connect to the goals of

intellectual property laws although such practices aren’t/weren’t called “copyright

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Iaw’ or ‘patent.”’ What I meant was that intellectual property laws, discourses of
plagiarism, ethics, discussions of authorship, and a whole bevy of other cultural
practices I’ll get to, are all supporters of that ideological production we call the
“author." In this chapter I give you some specific examples of what I mean. For
the next chapter on rhetorical invention, radical symmetry is a useful tool to
examine the agency of the law compared to the agency of the writer. ANT is
useful as well because it offers the idea of actor networks - a concept allowing
the dissection of an object such as copyright law as a node26 in the network.
John Law (2003) explains the qualities of ANT that I find useful (notice
how he directly references Foucault):
It is a method (or better, a sensibility) that has to do with and
explores relations, relationality . . . ANT (and other post-structuralist
semiotics of materiality such as that developed by Michel Foucault)
extends this beyond language to all entities. All entities, it says,
achieve their significance by being in relation to other entities. This
means that in ANT entities, things, people, are not fixed. Nothing
that enters into relations has fixed significance or attributes in and
of itself. Instead, the attributes of any particular element in the
system, any particular node in the network, are entirely defined in
relation to other elements in the system, to other nodes in the
network. And it is the analyst’s job, at least in part, to explore how
those relations — and so the entities that they constitute — are
brought into being. (p. 4)
Like Law explains here, Foucault (1977) also sees bodies (what Law calls
entities, things, people) as individualizable (Law refers to significance and nodes
in the same way Foucault refers to individualizability), in positions that are not
fixed, and distributed and circulated “in a network of relations” (Foucault, 1977, p.

146). Like Law, Foucault emphasizes the importance of hunting for origins.

Under both Law and Foucault’s lenses then, the “author,” or any “entities, things,

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people,” are not fixed, but are representations that come out of certain “relations,”
networks, cultural practices, or “author-functions” that produce them.
The Data

As you recall, in the previous chapter I outlined the study’s six major findings.
In this chapter I discuss the two major findings that relate to authorship. Those
findings are:

1. Web spaces are sites of cultural collision, or commonplaces, where
students occupy sometimes conflicting positions such that the very notion
of “studentness” is inverted. Web spaces as commonplace challenge
existing concepts such as “author" and “originality.”

2. The intertextuality of web-space-writing provides support for Foucault’s
theory that the single author is an ideological production representing the
opposite of its historical function, i.e. the “author-function,” in the larger
culture. “When a historically given function is represented in a figure that
inverts it, one has an ideological production” (Foucault, 1984, p. 119). No
support was found for a human culture existing without an “author-
function," whether it is a workplace culture or even a more community-
knowledge-focused culture as exists in India. Yet, “the author" switches in
and out of a subject position in relationship to human and non-human
actors.

Colliding Cultures

Colliding cultures in cyberspace are revealed in this study since I found
that webspaces are sites of cultural collision, or commonplaces, where students
occupy sometimes conflicting positions such that the very notion of “studentness”
is inverted. Additionally, webspaces as commonplaces challenge existing
concepts such as “author” and “originality.” In this section, first I reiterate my
theory of webspace as commonplace as supported by the data. Next I describe
the problem of the writerly category of “student,” and then I’ll explain why this is

relevant to a discussion of authorship and originality.

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Recall that in Chapter Two I provided a rationale for my examination of
copyright law in digital composing because the webspace provides opportunities
to rip, mix, and burn, bring the familiar and unfamiliar together, to converge the
past, the present, and the future. I provided you a screen capture of Leslie’s
webtext, illustrating how she used images from game playing and mixed those in
with course syllabi information, synthesizing her own design ideas into the remix,
creating something she hoped was intriguing to students. This kind of
convergence of the past, the present, and the future within a web composition
occurred for all seven writer-interviewees. Leslie anticipated multiple audiences,
and therefore had multiple underlying motivations for her writerly decisions. Her
work merged the past (graduate student), the present (graduate teaching
assistant), and the future (faculty member at new institution). Her work also
evidenced the passage of time that was underneath web content. Leslie’s main
thematic image had been developed over a year prior to its implementation in the
course website Leslie designed for her FYW students.

Another writer provides a clear example of webspace as commonplace, a
text that travels through time and space, converging the past, present, and

future. Below is Figure 5.1, a visual vignette I create of Jessie’s web writing.

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learn about it.

 

FIGURE 5.1 Visual Vignette of Jessie’s Web Writing

Jessie is transitioning from MA student to PhD student. At the time of our
interview she is finishing up her MA in professional writing, and applying to PhD
rhetoric and writing programs. At the time I write this, several months later,
Jessie’s been accepted into a PhD program and will continue her studies in this
area. As a digital writer, Jessie maintains web identities as graduate student,
graduate teaching assistant, teacher (having taught at other institutions), and
applicant to PhD programs. Again I see the past, the present, and the future
converging in Jessie's commonplace, her digital portfolio. The digital portfolio she

shares with me contains all the basic elements like CV, teaching philosophy,

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classes taught, and so on. Jessie has taught web design and multimedia writing,
even her first year writing course curriculum contains a major multimedia
component. She always discusses and teaches fair use and copyright issues in
her courses.

Jessie might be called a copyright activist, in that she has a great deal of
interest in preserving and expanding fair use, and by the time I write this she’s
done at least two conference presentations, many informal classroom
presentations, and had a publication in a major journal in our field on the issue of
fair use, copyright, and multimedia writing. All of these activities are reflected in
her portfolio. Aspects of this portfolio are maintained for students in the courses
she teaches; other aspects are for career-related evaluations by outside
audiences, still other aspects are for copyright holders. Our talk centers around a
movie she’s created that argues for activism in the area of fair use and argues for
changes in the law. She explains the genesis and development of her web
composition, which she estimates took about 100—150 hours for the single movie.

OK, um, [name of movie] started to be a book report about Larry
Lessig's book Free Culture. l was just supposed to present on that
information, and um, kind of interesting my son had made a power
point that ah, was an automatic, you click it one time and it played
all the way through and it played to when “Wake me when
September ends,” and I'm inspired by this. I'm thinking how did he
do that? I want to do something like that. So that's really where
[name of movie] came about, was the idea of, oh I could present
Lessig’s material in a moving power point movie, and do a sound
track with it, um, that's basically the context for me making it. Now
once I started making it, it was, it became more interesting because
I'm like, oh wow, I remember an old song called “Breakin' the Law.”
This is about breaking the law. It's about appropriation. That really

fits. I'll put those together, and um, it just kind of grew from there. It
ah, ended up being ten minutes, three songs in the background.

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When asked about where she obtained the materials for her webtext (the movie),

she answered:

Google.com. I mean I knew that ah, one of Lessig's examples was
when Walt Disney remixed Steamboat Bill into Steamboat Willie, or
got his idea for Steamboat Willie, Mickey Mouse’s first cartoon from
a movie that was called Steamboat Bill. So that's kind of where that
started, but it certainly was easy enough to go to google and do an
image search and find images to highlight when I was talking about
in the written, in the text portions of the report. And it didn’t stop
there. There's a picture of Pirates of the Caribbean in the piece.

And um, and many a logo, where I talk about remix and how it's not
necessarily needed in society but it's part of our freedom of
expression. So I show a logo of star bucks and someone’s remixed
it to consumer whore logo. I show a logo of coca cola and someone
remixed it into a enjoy capitalism logo, and so, the star bucks, the
coca cola, what else did I use, McDonaIds, eBay, these logos were
um, “right click,” “save file,” “save image as,” and I had them. They
were just. They're available on the intemet.

Yes, Jessie is a student. Sometimes. But at other times she is a teacher, and at

others a graduate program applicant, a job seeker, a mom, an appropriator of

others’ materials. She switches in and out of these subject positions, and her

webtext helps her maintain all these identities simultaneously. Jessie is indeed

much more than a student. She is a webwriter.

Another student-interviewee who provides a wonderful example of the

webspace as commonplace is Amanda. Amanda is a recent graduate with an

undergraduate degree in professional writing. At the time of the interview,

197

 

 

 

 

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FIGURE 5.2: Visual Vignette of Amanda’s Web Writing

it’s been about two years since she graduated and she is in her second full-time
position. She is working for a national non-profit health organization as an online
communication specialist. She regularly maintains their website and uses the
organization's intranet. The visual vignette I provide for you in Figure 5.2 contains

pieces of Amanda’s professional portfolio. She is involved as an alum with her

198

undergraduate program, and generally finds it beneficial to stay marketable and
keep her web portfolio up to date and reflective of her current position and past
experience. Yet her portfolio is forward looking as well since she does participate
in various professional activities, some of which are competitive — such as
applying for a teaching abroad opportunity and seeking promotion and raises.
Again we have an example of the past, the present, and the future converging in
the webspace as commonplace.

Amanda’s portfolio is extremely robust, containing samples of every kind
of imaginable writing, from memos, to book chapter edits, to original poetry, to
web design. In several areas of Amanda’s portfolio, she features others’ work
that she has edited. Amanda incorporates texts, visuals, and designs created by
others. She uses proofreading marks in her design that she obtains on the web
and considers a fair use partially because she retrieved these marks from a
university website that was used to teach students editing marks. She has a
knack for incorporating undergraduate course assignments into her portfolio in
such a fashion as to make these items look like work completed in for-profit
environments. Part of this knack comes from her ability to keep everything clean
and professional. As far as copyright, Amanda is not terribly concerned about it.
In her job, the employer provides forms that others must sign to release their
rights to donated materials, pictures, and texts. With the advent of user
generated content, such releases are crucial for Amanda to perform her job. She
is well aware that she is not the author of material she completes as an

employee and also feels a sense of responsibility as a representative of the

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organization to make sure the organization is presenting a uniform identity, and is

using others’ materials fairly:
We have a - it's a publicity [form] and something else, and it's just
like a legal document, and the person can sign it for interviewing
and if it’s a kid then the parents have to sign it. . . it has all the
same sort of language that like our websites have when people
want to share their story, or talk about their experiences, and they
say that you can publish this in any way that you see fit, and they
trust us, our organization, to use it, in a way that's not disrespectful,
or judgmental about their character, or anything.
This is basically to protect the organization, and the people who we
are getting the stories from, so I think it's more a legal issue. . . and
when you’re writing stories for the newsletter, for the external
newsletter, and anybody we interview, I give them the option to
review it first before I publish it . . so that they can see what we are
saying. To make sure that they are comfortable with it being
published, and I give them an option to say yes or no. It's just a
courtesy.

Clearly, Amanda navigates the web with a sophisticated understanding of

authorship. For her, she switches in and out of “author” position depending on

whether she is working on her own or for her company. As an employee, it is the

organization not Amanda who stands in the author position.

This switching in and out of author positions was true for my three other
interviewees as well, Heather, Sarah, and Carey. Below in Figure 5.3 are visual
vignettes of Heather and Sarah’s web compositions. Heather is a third year
undergraduate, and Sarah is a recent PW Master‘s graduate working as an
independent contractor especially for family members. Like Rob, discussed
below, Sarah is writing for the web in for-profit environments but not getting paid,

or getting paid only a under-cost amount.

200

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is Sarah’s

201

In addition to being a student, Heather is also a student employee, plus
she is doing freelance web design work for a faculty member at the university
where she attends. Her work for the faculty member involves creating a
conference webpage for a professional organization in our field. As a student
employee, she also works with a faculty member in different discipline, a science
program. Heather is very interested in copyright and fair use. As we proceed
through the interview, she notes how she creates her web designs partially by
creating her own materials, and partially by using content supplied to her by
others (i.e., classic remix). In the webtexts that Heather shares with me, she is
invisible as was Sarah, in the fashion of a traditional technical communicator.
Heather is the expert writer behind the scenes. In order to obtain materials and
resources for her web composing, Heather frequents a couple websites such as
deviant art.com, which she learned of in high school.

At the time of Sarah’s interview she’s been out of school for over a year,
and is completing webpages for family members as well as church organizations
that originally connected with her through family members. Sarah’s “gift writing” is
developing into a web design business that will continue to increase. She is
thinking about charging proper amounts and developing legal contracts to govern
her work. Sarah’s primary web identity is a relatively invisible one, as she creates
materials to promote others’ endeavors - in the typical fashion of a technical
writer. One of her relatives has received a national book award, and Sarah
creates a website for this person at no charge in order to promote both the author

and the book. This website was a total remake of a previous website, and will

202

continue to expand over time: “Well I think the original idea that we had talked
about, like the original website that we expanded there is another book. There is
going to be five books total, and the second book is due out in spring, and then
we will add another whole page, just on the second book, and the third book and
the forth book and the fifth book.” Sarah’s work again evidences the idea of a
commonplace, a mixing of the past, the present, and the future all in a neat
package of one website.

Carey is a MA student in a professional writing program. She’s also an
employee of the institution where she is an MA student (not a student employee).
I do not provide a visual vignette of her web composition because all she could
offer me was a social networking site page, and that was fairiy devoid of content.
Before her interview, I wondered what we would talk about because she had not
sent me a web composition that triggered any copyright issues. However, when I
arrived at the interview we began talking about her non-student work with a
national database that encourages teachers to share teaching and testing
materials. Carey's involvement with this database is central, and she is directly
involved in the design of the database’s interfaces. She also provides technical
support and training for the university supported project. The teachers she works
with include high school teachers as well as university teachers from all over the
US. I cannot provide visual depictions to you because they are in a password
protected area, and to do so I would risk revealing Carey’s identity.

Carey’s social network site is devoid of content because she feels

responsible to the institution for her professional identity especially as it

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intersects with her knowledge of copyright. She feels that as someone working in
a technology enhanced area where others’ materials are shared, and as a
student in a professional writing program that has a focus on digital writing, she
should also be an expert on copyright. She is also concerned about the design of
her social network page with respect to code and enors in code. If she enhances
her social network site, errors in the code will be visible to her scientist or web
programmer colleagues. She therefore chooses to leave her personally authored
site rather empty.

“Student“?

Recall that in Chapter Three I described how students were selected for
interviews based on their studentness. I wish to avoid othering students in my
discussion and that’s easy to do, because upon examination the category of
student doesn’t hold much water. What I mean to say is due to the webspace as
commonplace and the remixing that occurs in webwriting, I’m not sure what
“student [web] writing” might look like. All of my interviewees, not just the two
who had recently graduated (Amanda and Sarah) were writing for the web in
contexts outside school. Rob, an international student I discuss below, along with
Sarah, were regularly doing what I term gift writing - writing for the web on behalf
of family members and friends. This phenomena probably comes from the digital
divide, in that some individuals who are perfectly capable of putting together a
traditional paper flyer or brochure, have no clue how to write and publish a
webpage. Thus they tap into folks around them who can - probably younger

family members. Since Rob is an international student, this might be a global

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phenomena. Our TPW “students” may be active webwriters in “for-profit"
environments, although they themselves are not getting paid. Rob completed
webpages for his father’s business as well as a friend-professional dancer’s
business. Sarah created websites for a couple churches as well as to promote a
relative’s for-profit book sales. Heather, an undergraduate, was doing
professional webwriting for faculty members and professional organizations.

Several students were also working as teachers and marketing themselves as

potential employees.

This issue of the digital divide and the pressures it exerts on younger
webwriters might be worthy of further exploration. We might revisit the days
before everyone could write - when the “illiterate" had to sign an “X“ in place of
their name on legal documents and hire others to write for them. In an email as
follow-up to our interview, Amanda sums up the complexities of these issues in

the context of her own family:

I was checking my web presence by googling myself and found out
that there was a genealogy site that had one of our wedding photos
on it. The site had my mom listed as the owner of the photo. It turns
out that she saved the photo from our professional photographer's
website and sent it to some distant cousin in Texas who manages
the website. Not only did she not ask our permission, but she didn't
understand the issue of copyright belonging to our photographer. I
had signed a contract stating I wouldn't reprint or publish our
professional photographs without our photographer‘s permission
and not only was this violating that contract, but the photo's quality
had been degraded in the process so it wasn't representative of the
photographers talent. I had to email the webmaster of the site and
ask them to remove the photo, which they did immediately, and

then explain to my mom how fair use and copyright work on the
intemet.

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The activity which ties all my interviewees together is not so much their
“studentness” as their webwriting, their status as writers, and the complexities
they face surviving in a networked worid.

The concept of “studentness” connects to Foucault’s discussion of a
discipline’s ranking and dividing. Foucault’s theory helps connect the problem
with the “student" category to our understandings of authorship and originality.
Recall as I mentioned in Chapter One, one cannot be an author without
producing something “original.” I said in order for an artifact to be copyrightable
under US law, it must be “original.” “Originality" is the essence of our concept of
“author" and his sole creative genius. With respect to the student authors I
interviewed, I want to call into question not just their authorship (due to the
remixed nature of their web compositions), but also their “studentness.” Foucault
discusses discipline in a way that helps elucidate the subject positions of my
student-writers (recall my “studentness” diagram in Chapter Three). He reminds
us of the functioning of differing levels of student roles. Remember Leslie was
acting as a graduate student, teacher, and potential employee all at once in a
convergence via her gaming-themed webtext: “Discipline is an art of rank . . . It
individualizes bodies by a location that does not give them a fixed position, but
distributes them and circulates them in a network of relations” (Foucault, 1977, p.
146). This art of rank is evidenced by categories such as undergraduate,
Master’s student, PhD student, and so on. The art of rank is clearly visible in law
school practices where students are literally ranked against each other —

switching in and out of placeholders like “the top 5%” semester-to-semester.

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My data supports the idea that author-creating practices actually function
in the opposite fashion. lnfonnation and meaning are produced in the world but
not in an organized fashion. “The author does not precede the works” (Foucault
1984, p. 118-119). Instead, the author is created to organize meaning. Student
webwriters take meaning from an abundance of other sources and organize it in
their digital remixes. Both the interview and survey illuminate the complexity of
the “student” or “student writing” labels in digital contexts. In the survey, there
was not a remarkable difference between student and teacher knowledge scores.
Some undergraduate and Masters students seemed a bit more copyright savvy
than PhD students. None of the students were just students. It’s possible they
are doing more complicated webwriting than their teachers, as far as navigating
and maintaining multiple identities. These students are also employees, business
owners, teachers, family members. As far as sole authorship, none of the student
webtexts are created by the student-author in a vacuum, emanating solely from
the student’s own creative genius. Instead, texts, artifacts, visuals, and ideas are
liberally taken from others. However, as you might note from scanning all the
visual vignettes at once as they appear in Appendix 3.6, each student writer
brings us something new and inventive. Rhetorical invention can be used not just
to arrange existing information, but also to produce new knowledge as these
students do in their webwriting.

The remixed nature of webwriting points to the second finding I discuss in
this chapter. The intertextuality of web-space-writing provides support for

Foucault’s theory that the single author is an ideological production representing

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the opposite of its historical function, i.e. the “author-function,” in the larger
culture (Foucault, 1984, p. 119). No support was found for a human culture
existing without an “author-function,” whether it is a workplace culture or even a
more community-knowledge—focused culture as exists in India. Yet, “the author"
switches in and out of subject positions in relationship to human and non-human
actors. Amanda, who’s authorship was consumed by work-for-hire practices at
her workplace, was still an “author” with respect to her web portfolio, while
regarding her workplace writing, the organization occupies the subject position of
“author.” For Amanda’s clients who sign release forms covering their textual,
visual, and oral contributions - their stories, the organization as well consumes
their authorship. Author-functions in this case are the organizations’ work-for-hire
policies, the forms and releases contributors sign, and all other company
practices that support the arrangement of meaning production such that
individual expression disappears into organizational expression. And yet,
Amanda as author of her web portfolio shows us a complicated weaving together
of others’ texts synthesized, interpreted, and commented on by Amanda. The
web is a place where workplace and home cultures collide. Similar collisions
between home cultures and US cultures occur for international students. Rob’s
interview provides additional illumination.

In Figure 5.4 is a visual-vignette created from the numerous web
compositions (URLs) Rob supplies to me in anticipation of our interview. Rob is a
second-year PhD student in a rhetoric and writing program. He is an international

student having come to the US from India. Rob supplies me with numerous

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FIGURE 5.4. Visual Vignette of Rob’s Web Composing

web pages he's created both while still in India, and then while a student in the
US. Rob constructs webpages for family and friends, and has previously worked
as a web designer in India. He describes this as doing “outsourcing” work. In
India he created websites for people all over the worid. He also has websites
he’s created as a graduate student featuring some his PhD course work. So in
webspace, he occupies the roles of family member, friend, student, and
employee. I create a visual vignette of Rob's work partially to protect his identity,
but also to give you a flavor of the vast array of digital composing this writer
completed. The purpose and audiences for Rob’s work varies greatly. He is very

concerned about copyright, but that is a newfound interest after coming to the

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US. He notes that when obtaining his Master’s degree in India, Works Citeds or
Reference pages were not required. He did not consider copyright law in his work
previous to entering the graduate program and Ieaming about these issues as
part of a course. Rob describes his pre-graduate school thinking as solidly based

in the cultural norms of India:

In spite of the tremendous development in everything related to
web in India, so much that huge chunks of web based projects are
outsourced to India, why is copyright not as you might expect it to
be? There could be a historical/cultural reason why we Indians do
not think about it much. Knowledge is a community-owned thing in
India, and this concept dates back to the time before written
language. The Vedas (ancient Hindu texts) were said to the word of
God given to some sages and we never came to know which sage
said what. This knowledge was passed on from generation to
generation for a couple of thousand years. Re-mixing, re-mediating
and re-interpreting is believed to have led to its growth and
relevance to contemporary ethics. Perhaps what I mean to say is
that, knowledge was probably [not] allowed to be ”owned” by any
author flexing copyright over it, because my forefathers wanted to
encourage this growth with time. Every aspect of politics,
relationship, customs, dress, art is encoded in the scriptures. We
use them and re-use them to suit our times. The question of asking
permission to use them never arises. That is probably why [we are
not that concerned with attribution and copyright] . . . Same way, if I
learned something new [when attending school in India] from any
author and mention that in my paper in support of any idea, I
mention his/her name (of course I do not call it my idea) in my
[Indian] university exam answer. But it is not necessary to add a
reference to formally acknowledge the author, because to us, it is
not the author, but the new knowledge that is more important.

Rob has come to see knowledge of copyright as very important, and he believes
that if he obtains all his images from flickr.com, those images are free from
copyright. That is not completely true as many flcikr.com images are restricted in
some way by the owner. A user has to read each license which can be

exceedingly complicated. However, Rob definitely tries to do things correctly.

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In India, Rob did not have to attribute others’ work in the way we do in the
US because indirectly “the word of God” through the Vedas27 authors peoples’
texts. It’s not that there is no author in this case; it’s also not so much that
knowledge is “community-owned.” It’s just that God has been assigned the
subject role of author, consuming individual authorship. God is permitted to be an
author. Individuals are not. As Rob states, “Every aspect of politics, relationship,
customs, dress, art is encoded in the scriptures. We use them and re—use them
to suit our times.” Thus when one wants to point to the author, they point to the
scriptures, a non-human artifact. The Practical Sanskrit Dictionary states that
according the Hindu tradition, the Vedas are apauruseya "not of human agency"
(Apte, 1965). The text consumes any human author.

The author-function in Rob’s Indian culture is comprised of many
practices, one of which is reliance on the scriptures, and avoidance of direct
attribution to human authors. These types of practices cause one to continually
return to God as author — thus maintaining the scriptures’ importance with that
particular community of people. The values and beliefs in the Vedas then, are
more likely to maintain potency because they are not diluted by attribution of
ideas to individual persons who lived and died subsequent to the existence of the
Vedas. These types of author-functions keep agency with the text rather than
with the people.

A Remixed, More Robust Theory of Foucault’s Author-Function
Recall that in Chapter Two I provided a quote from Foucault where he

describes the author-function as an “historically given” function within a culture,

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signaling our “fear of the proliferation of meaning,” and producing the “author.”
We can connect Foucault’s discussion of lepers and plague (the law-function) to
his discussion of the author-function because the fear of “proliferation of
meaning” connects to the fear of the proliferation of disease. Like texts, like
scripture and government documents, disease is meaning. It’s information. You
might imagine we host culture within our bodies the same way we host disease.28

Foucault (1984) writes, “The author allows a limitation of the cancerous
and dangerous proliferation of significations within a world . . .” (p. 118). When
the information spreads so does the disease. US copyright law, like our notion of
“author" allows a limitation on the “proliferation of significations.” Fear of the
proliferation of meaning is likely attached to the fear of total chaos. I argue the
web and its ability to instantly deliver information contribute to fear of the
proliferation of meaning, to potential chaos. Viewing the web this way makes our
burgeoning discussions of authorship, copyright, and plagiarism sensible.
According to Foucault the “author" serves to divide, group, and control the
unimpeded proliferation of meaning. No wonder since the advent of the intemet
our scholarly focus on plagiarism has become more intense; some are even
fixated on detecting plagiarism. It is as if we are trying very hard to maintain the
ideological production: “author” — because to do otherwise potentially signals
chaos. The author serves to control the unimpeded proliferation of meaning; this
is also what prisons, educational institutions, and the practices of medicine do,

according to Foucault.

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While admitting that additional characteristics of the author-function are
probably discoverable, Foucault focuses on four. The first is that the author-
function is linked to the ability to transgress certain expectations of the institution.
For example, copyright law attempts to maintain the author, as do practices of
attribution, discourses on plagiarism, permission seeking, literary analysis, and
so on. The subsequent practices these author-functions engender are things like
abiding by copyright law, attributing, requesting permission, studying “the canon”
and “great authors,” all practices that serve certain institutional expectations that
there is an “author” somewhere. To break the law, fail to attribute, plagiarize, use
without permission would all be behaviors that might thus “transgress”
institutional expectations. If we all transgressed in this way the author would
surely lose his potency. He might disappear. Amanda is always careful in her
web portfolio to give credit to her collaborators and note that she received
permission from others to include their materials on her website. It’s expected
that she take such measures in her role as web author - to do otherwise would
be a transgression. By crediting and referring to others, she creates and
reinscribes: constitutes herself as writer. Thus, the practices of requesting
permission and attributing others are functions that produce Amanda as web
author.

The second aspect of the author-function according to Foucault is that it
does not affect all discourses in a universal fashion. When we examine copyright
internationally, vast differences emerge. Some European countries have “moral

rights” provisions in their copyright law, protecting the integrity of an author’s

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work. The US does not. China has stringent copyright laws on the books, but in
practice those laws have little import. When Rob was in India, he did not attribute
individual human authors because the cultural practices did not require it. Those
practices instead maintained a constant looking back to the scriptures and to
God’s word. But when Rob came to the US, he quickly Ieamed how important
Works Citeds and Reference pages were. When Amanda wrote for her
organization she gave up claims of authorship to the company. But when she
wrote on her own time she maintained her author status. The data provides
evidence that the author-function in different cultures does not apply uniformly.
Perhaps the author-function works differently in the workplace of technical writers
than it does in a first year writing course - in the former authorship may function
as a discourse of the organization, providing stability to organizational practices
as Amanda points out, whereas in the latter the author-function works in complex
ways to teach certain practices of community, to assure us that students are
synthesizing meaning, to be used for sorting texts, to control the unbridled
proliferation of meaning, etc.

The third point Foucault makes is that the author-function is not simply
assigning a name to a text. Instead it functions via a series of specific and
complex operations (here we can think of John Law’s notion of actor networks as
patterned heterogeneous materials whose resistance has been overcome). US
copyright law at over 300 pages just for the statutory provisions (Title 17), defines
a multitude of complexities that come into play when determining if a use of

another’s text is legal or if is not. In interviewee Amanda’s case, she had forms to

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give clients and policies to obey regarding writing for the organization. It was not
just a simple matter of assigning the company name to one text and her name to
another. For her web portfolio, she had certain responsibilities such as asking
permission and attributing. These responsibilities were different when she wrote
for the organization. It was more than the simple assigning of a name. Part of the
author-function in the US draws upon both practices of attribution as taught at
educational institutions, and practices around copyright law and its effect, and all
the discussions and practices that surround it (scholarship, research, legislative
action, lobbying, etc.).

The final aspect of the author-function that Foucault points to is that the
author it is not necessarily a real individual, but can represent multiple
subjectivities and can be occupied by various individuals or groups of individuals.
As Rob points out, God can be an author via the scriptures. The scriptures are
author of the cultural practices in Rob’s version of India. An organization can be
an author, as can a student, a teacher, a daughter, a mom, etc. Under the
definition Foucault gives, the author-function could be present in things, cultural
practices, that don’t look anything at all like those that support the literary
“author.” Three kinds of practices (I call them practices; John Law would call
them pattemed heterogeneous materials) come to mind and I offer these as a
small beginning towards assisting our understanding of a remixed theory of the
author-function. Let me first preface the following discussion by saying that
Foucault eerily predicted that our fundamental understanding of author and the

practices that produce him would change. He wrote:

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I think that, as our society changes, at the very moment
when it is in the process of changing, the author function will
disappear, and in such a manner that fiction and its
polysemous texts will once again function according to
another mode, but still with a system of constraint - one
which will no longer be the author, but which will have to be
determined or, perhaps, experienced. (p. 119)
I am not alone in stating that our society is undergoing a process of changing due
to communication enabled by the intemet. We even wondered not so long ago
whether copyright law had disappeared with respect to web writing (Herrington,
1997). There are no uniform author-functions organizing meaning and underlying
writing practices on the web — so you might say such functions have disappeared
(at least did so initially). As I will discuss further in the “Common Knowledge —
Commonplace” section of this chapter — the system of constraint shaping our
behavior is being experienced, but is not yet totally figured out. We know things
are different. When Foucault says we might have to “determine” or “experience”
this new system of constraint - it connects to James Kinney’s (1979) definition of
empiricism I provided in Chapter One. “Empiricism is the way of knowing through
the senses, through direct, physical experience” (p. 352). Latour (1993) suggests
that we conduct empirical work to explore networks — that we slow down and
backup: “We are going to have to slow down, reorient, and regulate the
proliferation of monsters by representing their existence officially” (p. 12).
I need to slow down and momentarily take you back in time.
To go back in time, first I start by providing you with three categories of

practice to frame my discussion, three categories that support a remixed version

of the author-function. In order to think about things this way I had to rely on the

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idea of radical symmetry from ANT along with the notion of actor networks. An
author as Foucault describes it is the result of actor networks; an author is a
node where the resistance of heterogeneous materials has been overcome, in
ANT terms. The node does not precede the network. Seeing Foucault’s
discussion of the literary figure in flatter terms, we might see these three types of
practices as author-functions.

1. Exclusive Rights: Practices that give exclusive rights to
produce certain kinds of knowledge to certain ordained
entities, things, people.

2. Erasure: Practices that erase entities, things, people.

3. Limiting Expression: Practices that limit expression of
certain classes of entities, things, people but not others.

Note that US copyright law as it is performed can do all three of these items. In
the spirit of radical symmetry and legal reasoning, I’m going to discuss these
three types of practices in very abstract, flat terms even though some of the
examples I provide might be disturbing. I am trying to illustrate how cultural
practices other than copyright law produce the same results because like
copyright law, these practices are author-functions. What I mean is that
eventually I’m going to present you with a visual collage that equates US Army
solders, Texas polygamists, the Amish, Hasidic Jews, and Iranian university
graduates.

Bear with me.

The first type of heterogeneous network I list is practices that give
exclusive right to produce certain kinds of knowledge to certain ordained

individuals or artifacts. As defined in Chapter 1, US copyright law assigns such

exclusive rights. Such practices are present in every culture. For example in

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Magna Graecia, the Sybarites gave cooks a statutory time-limited monome on
new dishes (Gellar, 2000, p.212, ft.nt. 12). A Federal Australian Court found
analogies to copyright law in Aboriginal law (Bulun Bulun v. R.&T. Textiles,
1998). Gellar (2000) notes that tribal art is controlled as “technical virtuosos” by
artisans instilling it with magical influence. In Africa, artistic know-how is passed
on through “kinship, corporate, and other groups” (p.212, ft.nt. 10).

Any culture that has shamans or supports shamanism has cultural
practices, author-functions that support certain persons as vested with authority
to know or make knowledge. For example Katherine A. Spielmann (1998), a
cultural anthropologist from Arizona State University, studies the specialists of
“prehistoric middle range societies”29 who produced ritual crafts — the Mimbres
(southwestern New Mexico A.D. 1000-1150) and the Ohio Hopewell (southern
Ohio 150 B.C.-A.D.400). The Mimbres are famous for exquisitely crafted
mortuary bowls, the Ohio Hopewell for their earspools, copper plates, and
obsidian bifaces recovered in burial mounds. Multiple media, some imported from
far distances, were used to craft the Hopewell items including sharks’ teeth,
obsidian, copper, mica, and textile.

Ritual crafts held special spiritual powers, and the makers of them were
undenrvritten by the context of the ritual performance, a performance requiring
“the specialized production of esoteric, intricate, skillfully made items” (p.153).
Spielmann draws parallels between the ritual crafts of the Mimbres and Hopewell
to those created by other peoples including the Iroquois and their famous False

Faces, and Northwest Coast tribes. Chilcat blanket weaving was passed down

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h
|..

     

from mother to daughter, and these women could mark their authorship by
signing the blanket’s lower comer. Only the leader of the dance group could
make the masks and wands of the Mescalero Apache mountain dancers. Mask-
making and paint-making among the Pueblo people was only completed by
special members of the ceremonial organization, and paints were cured in
ceremonial society rooms. At the Ohio sites, evidence exists that artisans
sometimes worked collaboratively, and in some prehistoric communities if the
person vested with the authority to create ritual crafts did not possess the skill, he
could commission a slave or common craftsperson to create the craft for him.
Spielmann points to a problem though with how theories of the power-vested
ritual craft maker have led to the conclusion that only certain people were
permitted to create sacred items. This is untrue because she explains some
items such as masks, robes and rattles among the Tlingit, and rattles, drums,
and masks among the Iroquois could be made by anyone and achieve power
over time, due to their history and use:
Most False Face masks began as Commoner masks, but with a
long history of use could become the more powerful Doorkeepers.
Likewise, among the Kwakiutl, copper plates increased in value
each time they were given away (Boas, 1895: 344). Copper plates
could also be intentionally broken and the pieces riveted back
together to add prestige to a plate (Boas 1895: 354). (p. 156)
According to Boas (1895) each copper had a name that represented its power.30
All four elements of Foucault’s author-function can be seen in this

extended example, if we rely on ANT to flatten out Foucault’s reliance on literary

author as his sole frame of reference. If ordained persons are permitted to create

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r_ j

certain powerful crafts, then someone who does othenrvise could possibly
“transgress certain expectations” of the community. Sometimes a human artisan
is invested with the authority to create sacred crafts, but at other times the non-
human artifact gains power by use overtime, supporting Foucault’s idea that the
author-function doesn’t impact all discourse in a universal fashion. Copperplates
and False Faces that gain power over time are products produced by practices
similar to those described by Rob. The Vedas increase their power over time by
use. The cultural practices Spielmann describes are intricate enough to show us
how authorship is created in more complex ways than simply assigning a name
to a text. And finally, that False Face masks and copperplates can constitute their
own authority, power, and knowledge over time supports Foucault’s assertion
that the author is not always an individual.

I can also add that while Foucault says the author-function does not work
upon all discourses in a universal fashion, sometimes there are interesting
connections across cultural practices that at first might not appear similar. The
Kwakiutl copperplates that accumulated power over time, remind me of the ethos
acquired by page ranking in digital contexts.31 The more times your webpage is
hit or linked by other sites, the more powerful it becomes — the more it appears
vested with some kind of inherent knowledge. Copperplates that were broken
apart and put back together took on special powers — similar to the remix my
interviewees create in the webspace as commonplace. The Kwakiutl’s
copperplates transformed existing knowledge into something novel and more

valuable than what went before — similarly did the web compositions created by

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the student-writers. The fact the those instilled with authority in these ancient
communities sometimes commissioned others to complete work for them
connects to current work-for-hire policies and law — interviewee Amanda is in a
very real sense, commissioned by the national health organization she works for
to create digital texts due to her special skill as a graduate from a professional
writing program. The nationally recognized health organization switches in to the
subject position held by the authority-vested high status Tlingit clan member, and
Amanda switches in to the subject position of the Tlingit skilled carver.

Looking to more contemporary practices, the Roman Catholic pope,
invested with supreme authority or papal infallibility, is invested as author, in a
sense, of the word of God. All the practices that sustain the pope and invest him
with authority are author-functions under this broadened view of Foucault’s
theory. Another clear example of the author-function in the US can be derived
from the story of Phillis Wheatley, a young slave arriving on the shores of Boston
on July 11, 1761, having traveled on slave ship Phillis (her purchasers, John and
Susanna Wheatley named her after the ship) returning from Sierra Leone and
Isles de Los. Eventually, Phillis ended up before a jury of eighteen men, including
Thomas Hutchinson, governor of Massachusetts, Andrew Oliver, lieutenant
governor, Reverend Mather Byles, minister of Hollis Street Congregational
Church, John Hancock, and Reverend Charles Chauncy in order to defend the
authenticity of poems she’d written. They affirmed her authorship,32 but according
to Henry Louis Gates, Jr. (2003), her authorship has never been authenticated

among more recent black scholars who condemn her for being a pariah, a cheap

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imitation of Alexander Pope, a poetess well fit to the Uncle Tom syndrome. Either
way, cultural practices in the US have served to stifle what Gates describes as
Wheatley’s sacrifices, courage, humiliations, and trials, and instead de-legitimize
this black woman as “author.” In contemporary contexts, it can be plausibly
argued that sustained deprivation of certain groups (the old, the poor, those in
rural areas) in their ability to participant in digital writing, although perhaps
seemingly based in economics, emanates from cultural practices that are author-
functions. These are practices that respond to our fear of the proliferation of
meaning. Regardless of whether they are termed “racism” or the “digital divide,”
such heterogeneous networks remain practices that give exclusive rights to
produce certain kinds of knowledge to certain ordained entities, things, people.
The second type of heterogeneous network I list is practices that erase
things, entities, individuals. Such practices might include something as pragmatic
as rules of attire, might reach to practices that decide who is featured or erased
in a family's photographic history (see Rife, 2005), and might extend all the way
to sophisticated text-based laws or policies such as work-for-hire practices. As
promised, below I provide a simple collage (Figure 5.5) depicting cultural
practices involving dress that serve the author-function in that they erase the
individual. I obtained these images by conducting google image searches, and all
can be found in multiple locations. In the spirit of my interviewees who often did
not attribute generic images, nor could they recall where these images were
obtained, I do not attribute my sources since these images are common

knowledge (explained below). From the upper left hand comer clockwise are two

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pictures of women from the “Texas Polygamist” group, US Army solders, women
at a university graduation ceremony in Iran, Amish giris, and Hasidic Jewish Men.

Cultural practices that invite or require certain designated groups, women,

    

FIGURE 5.5. Visually-Symmetrical Cultural Attire Collage

solders, men, to wear similar clothing all erase individuality pennilting
someone/thing other than the individual (God, sect leader, the US govemment)
to be the “author."33 As Foucault said, the author-function is not simply assigning
a name to a text. It's much more complicated than that. These practices of dress
serve the same purposes, in some respects, as does copyright law. That is, they
assign the right to produce certain kinds of meaning — countering our fear of
chaos. These practices of dress organize knowledge production.

The last kind of heterogeneous network I list, and this is not an exhaustive

enumeration but a mere start, is practices that limit expression of certain classes

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of entities, things, or people but not others. US copyright law accomplishes this in
that it limits the ability of a new work to copy or draw from an existing work. Such
practices might be seen in religious or cultural practices which do not allow
women to speak in public, or to be religious leaders, priests, or popes, or the law
in the US that disallows felons from voting since voting is a form of expression.
Such practices might include sustained violence, including the killing of certain
groups of people as compared to others since violence and killing often or always
silence their victims. Iris Marion Young (1990) says that violence is a social
practice. A recent study by Scott Phillips, a professor of sociology and
criminology at the University of Denver, found that in Harrison County, Texas an
average of 17 of 100 black defendants and 12 of 100 white defendants indicted
for capital murder were sent to death row (Liptak, 2008). The author-function is at
work here silencing more black men compared to white men. Violence against
women can also illuminate the author-function. In the US 31.5% of women
compared to 16.1% of men were injured during a rape. 39.0 % of US women,
compared to 24.8% of men were injured during their most recent assault (US
Department of Justice, 2000). In the Congo, rape of women and girls, which
certainly silences its victim, is an accepted cultural practice:
Every day, 10 new women and girls who have been raped show up
at this hospital. Many have been so sadistically attacked from the
inside out, butchered by bayonets and assaulted with chunks of
wood, that their reproductive and digestive systems are beyond
repair. (Gettleman, 2007)

All of these practices, administration of the death penalty, injuring an assault

victim, rape of a certain group of persons, systematically injuring the reproductive

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organs of a group of persons, when you flatten them out to see what ends they
accomplish, when you make all of these practices “radically symmetrical,” fit
within Foucault’s definition of author-function.

Further, thinking back to the survey data this illumination of the author-
function is supported as well. In Chapter Four I discussed three key
misunderstandings depicted in the survey data. Those misunderstandings were
regarding the government document exception to copyright which respondents
failed to recognize, confusion between the legalities of fair use and the ethic of
anti-plagiarism’s requirement for attribution, and the failure of a majority of
respondents to acknowledge that creative works receive more copyright
protection than factual works. By flattening existing connotations under the ANT
lens, like “misunderstanding” or “lack of knowledge” in the key areas I discussed
in Chapter Four, we can try to explain misunderstanding as instead a tacit
comprehension of how the author-function works. Three key areas of
misunderstanding in my study may point instead to the presence of what
Foucault names the author-function. Based on these misunderstandings, for this
population copyright law functioned to impede the flow of government
information, require attribution, and equally protect creative and factual work. In
some ways, all of the misunderstandings actually benefit TPW by supporting the
author-function in a value-added way to this community. Impeding the flow of
government information gives both teachers and students, perhaps, greater
likelihood of using design heuristics, ethics, rhetoric, or other motivations for

composing choices, rather than laws and regulations. Seeing fair use as

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requiring attribution when it doesn’t sustains the economy of symbolic capital via
attribution, a beneficial stance for this community. Imagining equal protection for
both creative and factual work again benefits TPW, often viewed as creators of
the technical or factual rather than the “creative.” One of the four indicators of the
author-function according to Foucault is that it does not affect all discourses in a
universal fashion. If you can for a moment imagine something like “the discourse
of TPW,” the misunderstandings in these three key areas braid together to
potentially create author-related cultural practices that support the work of TPW
better than the actual law. These misunderstandings transcended the law.
Common Knowledge - Commonplace

Remember that in Chapter Two I posed the questions: How might such
digital composing practices revise our understanding of “common knowledge”?
Where might “common knowledge” and “commonplace” intersect? I try to begin
to answer that question here. As Foucault predicted, our changing future, the
digital commonplace is something that must be experienced to be understood.
My Figure 5.5, a visual collage consisting of what I deem common knowledge, is
only understandable to those who’ve experienced the web. What I deem
common knowledge is just that for this dissertation audience at this moment in
time. For us — I cannot see any logical reason to attribute the images that
comprise the collage since anyone capable of doing a google image search can
find these images at any time. The images will probably disappear one day from
their current locations, and so any URL I provide will become useless and extinct

anyway. Common knowledge is time stamped. I’ve made it clear I did not create

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the individual images myself - but even that seems overdone since most of my
readers will find the images familiar, and will know based on their knowledge of
my limited existence, I did not travel to Texas or to a US Army drill in order to
obtain the images directly. Anyone who observes the news will understand what
these images represent.

In the case of my visual collage, the system of constraint for me as
composer is only that provided by the technology of the web and user generated
content. The images must have been uploaded by someone/something and be
downloadable for me to use them. Legality and ethics seem beside the point.
Based on my interview data, it’s a common practice to take images from the web,
mix them together, add your interpretation, and eventually forget where you
obtained them. Rip, mix, burn. Ultimately, I believe my use is just - and l interpret
my interviewees’ stances as similar to my own. In Chapter Two I referred to
Foucault’s point that the same types of texts have not always required authors
and were accepted, circulated, and valorized without concems of their
authorship. In the commonplace of the web, the images that circulate and can be
located in multiple sites, really call into question the need for any concern of their
authorship. We know the images of the women from the Texas cult are probably
valid because we’ve seen them over and over again in multiple places. They are
common knowledge. Their authorship is not important. What’s important is what
they represent. Images of the Texas cult women represent certain cultural
practices, author-functions, that can be circulated and appropriated by others in a

network of relations, as I tried to depict in Figure 5.5. In order to slow down and

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reorient, to experience things the way Latour suggests, we might need to stop
asking the traditional question of who is speaking, and instead examine what
representations are being facilitated, how are they circulating, and who can
appropriate them. This will get to Latour’s concern for the proliferation of
monsters. In the future that Foucault (1984) predicts, instead of asking the
traditional questions of who really spoke and with what authenticity, we will
instead ask ‘What difference does it make who is speaking?” (p. 120). Upon
examination, digital composing practices bring this future Foucault predicts
clearly in view. As I write this, Senate Bill 2913, the “Shawn Bentley Orphan
Works Act of 2008” is under consideration. It would reduce liability of those who
use found images and other materials if they have completed a “diligent effort”
searching for the owner of material without success. The law appears to be
following the digital composing practices of the writers in this study.
Implications for Teaching, Learning, and Research

Here I will list three major implications that arise due to this remixed theory
of authorship. One pertains to student subjectivities, the second is regarding
writing the history of present-day authorship, and the third concerns theory
building and research paradigms.
Student Subjectivities

The category and othering of the “student” subjectivity may serve the
useful purpose of organizing meaning in the institution, but webwriting otherwise
seriously challenges the reality and usefulness of this category. Grabill (2007b)

states:

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I do not believe in clear classroom-community or university-real
world distinctions. The people in our classrooms are citizens as well
as students . . . These same people, in ways we surely do not
know, inhabit the institutions of civil society and participate in civic
culture in ways we could not imagine for them. (p. 121)
Proponents of community, informational, digital, and multi-literacies as I list in
Chapter One already push against traditional notions of “studentness.” DeJoy
(2005) addresses the othering problem by arguing that we might bring students
in as stewards of the discipline. We might more closely read their writing. The
implications for teaching and research are many.

Further research is needed to understand the complexity of digital writing
practices for today’s student population. These additional complexities, such as
the one I located in the data that shows students are writing in for-profit
environments but without being paid — i.e. doing digital “gift writing” - might
shape our pedagogies and curriculum in new ways. Some students, like Sarah,
also want to become web-writing entrepreneurs. Have we enabled this? The
category of “student writing” certainly changes shape between the three page
paper essay, handed solely to the teacher, and the digital remix, digital portfolio,
“letter to copyright holders,” and student-created movie challenging our notion of
digital theft. More research is needed in this area, especially with attention to
rhetoric-based notions of audience. In my study, the copyright holder and the
potential appropriator become members of the students' audience. Jessie had
written an open letter to copyright holders that was posted to her website; Rob

had experienced having his content ripped, mixed, and burned by another web

composer.

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Writingihe Hisgrv of Preeerflay Apthorship

Further tracing and writing the history of our present author-functions
(globally) is in order so that we might better understand how certain practices
connect to each other such as the three practices I listed earlier in this section.
Those three practices pertain to entities, things, and people and concern
assigning exclusive rights, erasure, and limiting expression. This further research
could take a couple different trajectories. I think some might see a clear
alignment between the practices I list and Iris Marion Young’s (1990) version of
justice and oppression. Young argues the distributive paradigm of justice negates
needed focus on oppression and domination. She lists the “five faces of
oppression” as exploitation, marginalization, powerlessness, cultural imperialism,
and violence. These faces of oppression could be sorted into the three practices I
list. Explorations such as those Young suggests are important but only provide
one-half the picture. Studying how slavery “oppressed” Phillis Wheatley fails to
acknowledge how author-functions served to enable her eighteen male jurors,
and later even Gates himself, to validate or deny her authorship. In both cases,
Wheatley's authorship is turned over to others, while we examine her
“oppression.” Such cultural practices thus continue to proliferate.

Due to my reliance on Foucault and ANT, my focus is not so much on how
certain practices repress as on how they produce. While the violence against
Congo women silences or represses them, this violence is an outgrowth of the
author-function’s operation which serves to organize meaning. The author-

function here is productive, in that it produces violence and all the subsequent

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discussions of that violence. The same is true with respect to US copyright law.
While many scholars I list in Chapter One, such as Herrington, Hobbs, Jaszi,
Aufderheide, Porter, Heins, Beckles, and Westbrook point to how copyright law
might/does repress an individual’s ability to express him or herself, in fact the
existence of such scholarship negates the scholars’ thesis — copyright law in
service to the author-function is productive since it has produced an entire
discourse on copyright, including my dissertation. I will discuss the power of
copyright law and other rhetorical topics as producers of invention rather than
oppressors in the next chapter.

The failure to conduct the kind of analysis I am suggesting continues to
ignore what Latour calls the proliferation of monsters. If we ignore the operation
of the author-function as a producer of knowledge, it will not be possible to
amend our practices. In the two examples I provide in this section, the cutting out
of women’s reproductive organs versus the administration of copyright law, my
Western gaze prefers the law as a more just organizer of meaning. I also prefer
copyright law as an organizer of meaning rather than requiring women to wear
burkas. It’s simply I have not read of anyone wishing to commit suicide due to
copyright - but I have read such wishes with respect to burkas (see Waldman,
2001). As stated, I cannot escape my Westem gaze. All of the literature listed in
Chapter One notwithstanding (scholarship that argues our creativity is impaired
due to copyright restrictions) - my hypothesis here is that if a community doesn’t
have the mediational presence of a text-based copyright law, it’s going to have

some other practices in place that decide who is and is not permitted to speak.

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Some of these practices are very ugly. Yet, societal chaos is not a realistic
option. Especially because of the web’s ability to facilitate the unbridled
proliferation of meaning, we need some mechanisms to organize the production
of knowledge, i.e. “author-functions.” Rhetoric will prove useful in allowing us
more choice in such matters.

This new kind of history of present-day authorship that I imagine we might
write, would provide a different context to teach students about copyright law and
plagiarism as well. Rather than situating the ethic of plagiarism in the larger IP
framework (DeVoss 8 Rosati, 2002; Rife, 2007; Rife 8 DeVoss, 200X), I could
see a pedagogy develop that might situate plagiarism and copyright law within
understandings of these larger cultural practices, author-functions, that I discuss.
Such new pedagogies might also facilitate our understandings of the cultural
collisions that arise in web writing.

Conducting additional research in the area of cultural collision, authorship,
and technology might also prove fruitful with respect to informing law and policy.
The proliferation of meaning that takes place due to the intemet causes havoc
between cultures due to conflicting cultural practices or author-functions. In
Peers, pirates, and persuasion, Logie (2006) details his visit to Ukraine, including
Kiev’s city center, and his experience with a culture that does not recognize the
Western concept of copyright. In Ukraine, Logie witnessed the widely accepted
cultural practices of using pirated copied of Window's operating systems and the
open selling of counterfeit versions of popular software as well as music discs.

And we can daily read the newspapers about China’s “copyright problem.” It’s

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posited: “China’s appropriation and dissemination of the world’s most valuable
products and technologies, if they continue unabated, will ultimately mean a lot
more than dollars lost. China’s pirating and counterfeiting could radically change
the way entertainment, fashion, medicine and services are created and sold”
(Fishman, 2005, p. 41). Fishman estimates the US, Japan, and European union
sacrifice close to $80 billion annually due to counterfeiting and piracy. While
China has laws on the books that are as strict as any, those laws appear to have
no agency. Why is that?

Sun (2004) supported in her dissertation the community-knowledge based
culture in China. It seems a logical outcome that two cultures are colliding here,
one where prose-based law mediates individual behaviors and authorship, and
one where law has no mediational impact. This conflict seems difficult to resolve,
but if Fishman is correct, the US must change its model as much as China. Bush
is poised to file a complaint with the World Trade Organization but the outcome
of that potential legal action is not clear (Andrews, 2007). If we consider the
conflicting cultural practices, or author-functions, that underlie the US and
China’s ways of regulating the production of knowledge, the China “copyright
problem” can only be resolved with a huge cultural shift by either China or the
US. Such a shift seems unlikely any time soon.

R_hetoric. ActMtv Theory. and Foucault/ANT

I also think we could further explore and test the utility of using activity

theory to study writing especially in the context of exploring Foucault and ANT’s

premises. The use of activity theory has proved especially fruitful in this study,

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supporting the stances of its proponents Hart-Davidson (2007) and Geisler and
Slattery (2007). By separating knowledge and understanding of copyright law as
a potential mediator in the writing activity of TP writers, the mediationalforcesa"1 I
located ended up much more complex than originally imagined. Foucault as well
as the ANT theorists specifically request that we test their assertions with
research. While I did not set out to do that, ultimately that’s what resulted by
employing rhetoric alongside the activity theory triangle in my research. Foucault
specifically invites us to test his two assertions regarding truth:

“Truth” is to be understood as a system of ordered procedures for

the production, regulation, distribution, circulation, and operation of

statements.

“anth” is linked in a circular relation with systems of power which

produce and sustain it, and to effects of power which it induces and

which extend it. A “regime” of truth. (1984, p. 74)
By using rhetorical analyses along with activity theory (and influences of ANT) as
a research paradigm, we might align the way probable tnrth, with its
accompanying levels of certainty, is constructed at different times and locations,
and see these constructions as emanating from author-functions within different
cultures. We might be able to examine how such heuristics of probable
knowledge organize meaning — how such heuristics mediate knowledge within a
culture. We could align “truth” in statistics, in legal contexts, in my study, and in
the native societies studied by Boas and Spielmann and compare the rhetorical

nature of “truth.” In Table 5.1 I provide a comparison of metrics of truth in

knowledge within different discourse communities. The Kwakiutl coppers’ Indian

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names are not presented because I don't have the appropriate alphabet on my

keyboard, so I simply provide the names’ definitions instead.

5.1:

Questions: Certainty

very very coppers are

a
significant reasonable doubt ashamed to look at it

convincing i.e., it glides out of
one’s hands like a

answer

evidence possession all are

 

Recall my earlier argument that supports the view rhetoric, particularly via the
use of heuristics, can be generative. As Janice Lauer (2008) points out, Wayne
Booth in his book Modern dogma and the rhetoric of assent tells us how rhetoric
can be helpful in constructing knowledge in between “fact" and “mere opinion."
All knowledge in between these two extremes is organized by rhetoric as l
demonstrate in the above table. Here I think we might explore connections
between heuristics, metis, and rhetorical invention, which I will try to do in the
next chapter. To conclude, further explorations in areas where rhetoric organizes

the author-function are in order.

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CHAPTER 6

RHETORICAL INVENTION AND THE LAW
“When Zeus swallows Metis, at the end of the Theoretic myths, he is completing
the process by which, through the various stages of his battles against the
primordial powers of disorder, there gradually emerges fi'om the original chaos
an organised, differentiated and hierarchical cosmos which from now on is
stable” (Marcel Detienne and Jean-Pierre Vernant, 1978, p. 134).

In Chapter Five, “A Remixed Theory of Authorship,” I framed my
discussion of authorship with Foucault’s “What is an Author” essay, and then
connected that to actor network theory (ANT) and its focus on radical symmetry
and actor networks, particularly ANT’s focus on the relationships between
entities, things, and people. I then examined the data and discussed two of the
study’s major findings, to wit, webspaces as commonplaces are sites of cultural
collision, and the single author is an ideological representation produced by
certain functions that work in the opposite fashion. Having already introduced the
web composition of interviewee Leslie in Chapter Two, in Chapter Five I
introduced you to the remaining interviewees, including Jessie, a new PhD
student, Amanda, a recent four-year PW graduate, Heather, and undergraduate
PW major, Sarah, a recent PW master’s graduate, and Carey, a PW Master’s
student who also works as a regular full-time employee for the institution she
attended as a student. I also introduced you to the one international student,
Rob, a second year PhD student who had previously worked for a web-based

outsourcing company in India that completed commercial websites for clients

across the world.

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In Chapter Five, I challenged the category of “student” based on digital
composing practices of my interviewees. I also tried to broaden the readers’
understanding of “author-function” by juxtaposing cultural practices of various
human societies across space and time. I ended the chapter by discussing
implications for teaching, Ieaming, and research and in doing so, created a table
for your review that compared cross-cultural heuristics constituting probable
knowledge for various discourse communities such as statistics, law, my fair use
study, and the Kwakiutl Indians. I concluded Chapter Five by arguing that as
Lauer states, rhetoric can be used to generate probable knowledge rather than
merely anange existing information (i.e. the discovery-novelty dichotomy). Under
the theoretical framework I constructed in Chapter Two by drawing upon Lauer
and Vygotsky, rhetorical topics can construct a heuristical stmcture that mediates
the production of probable knowledge. A fair use/copyright determination is a
determination of probability. In Chapter Two, drawing upon Carolyn Miller’s
discussion of novelty versus discovery in invention, I connected the idea of
probability determinations with metis, cunningness and craftiness. The probability
determinations required by copyright/fair use also require invention and might
require the same kind of reasoning as legal reasoning. Since I saw my
interviewees drawing on a heuristic comprised of rhetorical topics as they
composed for the web as outlined in Chapter Three, I argue that we might further
explore the connection between heuristics, metis, and rhetorical invention in

copyright imbued environments. Such an exploration is my aim in this chapter. I

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start by discussing four of the six findings as I promised to do in Chapter Four
where I previously discussed the survey findings:

1. For this group of writers, digital speech was not chilled. Copyright law
as a system of invention organized by rhetoric, produces knowledge.

2. Rhetorical topics congeal as a heuristic mediating the digital
composing process of writers. This study provides a small and
incomplete snapshot of this heuristic stnrcture.

3. When we consider the hierarchical and embedded nature of rhetorical
topics that mediate digital composing choices, for this group of writers,
ethics trumped the law.

4. While the study supports the idea that laws have agency, as
knowledge and understanding increase, that agency is increasingly

diminished by the human actor. The agency of the law is connected to
where the law ends up on the AT triangle.

Heuristics 8 the Role of Metis In Invention

Copyright Law as Producer

In this section I am going to further discuss the finding that for this group
of writers, digital speech was not chilled and the related idea that copyright law
as a system of invention organized by rhetoric, produces knowledge. Recall that
the survey indicated that other scholars’ claims notwithstanding, less than 3% of
writers had very chilled speech, only 6% had been asked to take anything down
from the web, and only 14% felt unable to express themselves due to fear. The
survey takers acknowledged that their web creations may have been more
aesthetically pleasing if they didn’t have to wony about copyright. My
interviewees, particulariy Sarah and Jessie who had relatively high knowledge
scores(64% and 71% respectively), noted how time consuming it was to consider

copyright law. Jessie spent hours and weeks trying to obtain permission for the

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use of some materials in her web movie but with no success. In tandem to her
movie, an interesting component of her digital portfolio is an “Open Letter” to
copyright holders explaining that while she’d tried to obtain permission, she was
unable to do so and thus uses under fair use. Her open letter evidences
responsibility taking, and brings to my attention Jesse’s concern for acting
ethically and legally when possible. Remember that with respect to educators
obtaining permission, as Jesse tried to do, Hobbs, Jaszi, and Aufderheide’s
(2007) study revealed that obtaining permissions is not a realistic goal for
educators because either permission is refused or the cost is prohibitive. So
Jessie echoes the frustrations held by many educators regarding the impossibility
of obtaining permission when she says in her letter, “I have sought — to no avail -
permission to use your material(s) in my Power Point essay showcasing the ease
with which a person can commit ‘piracy’ and take music, video, images, and text
from the lntemet these days.”

Sarah, who had composed websites for churches and non-profits, likewise
spent a great deal of time reading licenses and navigating the legality of using
others’ web design resources. She spent time talking over her ideas with her
husband. Jessie spent time talking things over with faculty in her Master‘s
program. Ultimately though, neither of these web writers had chilled speech
(Sarah’s chilled speech score was 3 and Jessie’s was 2; 1 very certain, 5 not
certain at all).

Since neither Sarah nor Jessie received 100% on the knowledge test, as I

mentioned previously it is possible that their speech was not chilled because they

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weren’t fully aware of some of the legal risks they were taking. Yet, in reviewing
their web compositions with them, I did not see anything in their writing that could
not plausibly be argued as fair use. One thing I noticed with web writing across
all interviews, is that the shape of the webspace itself always already lends itself
to fair use. That is, a thumbnail image simply fits better on a browser page than a
full size image. Limitations on web storage space encourage the use of lower
level pixels than one might prefer from a purely aesthetic lens. The shape of the
webspace limits the utility of long quotes. Webspace encourages remix, a little bit
of this and a little bit of that in a very small visual area. To do otherwise risks
losing the audience. I do not think that the reason the writers’ speech is not
chilled is because of their ignorance of the law. I think it is because they found
work-arounds, relying on invention informed by metis. They transcended the law.

However, I also acknowledge the other reason web writers’ speech isn’t
chilled might be because copyright stakeholders are not coming after the
educational community, yet. Part of the reason might be because stakeholders
don’t want to develop a bad reputation for going after individuals trying to learn.
The web writers’ lack of chilled speech could be due to copyright stakeholders
knowing the potential difficulty in proving infringement against educational use. It
could be because they have no easy way to hunt down potential copyright
violators.

I think another reason more speech wasn’t chilled is that formally
educated professional writers tend to be a little smarter than the average person,

more aware of risks, and thus able to develop inventional strategies that take into

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consideration such risks. A web composition as a commonplace is always
contingent. It’s contingent on various author-functions that allow it to exist -
technology, space limitations, currency of information, ethical issues, and
legalities. A web composition can only exist based on a weaving together of
probabilities. Like several of my writers stated, the most they would expect from a
copyright stakeholder is a takedown notice. Considering the kinds of uses the
writers were making — which appeared to be justifiable within fair use, I think this
expectation is realistic.

So while copyright law mediated digital expression, it did not chill speech.
Instead, copyright law produced digital speech. For example, copyright law
compelled Jessie to write her open letter to copyright holders, and create her
digital movie on intemet piracy. Copyright law suggested Amanda to include the
copyright symbol on her webpages, not to protect her work but to show the
reader that she was aware of such issues. On the national teacher exchange
database that Carey managed, copyright law caused users to experience more
discourse - the database had to produce more texts explaining the legality of
uses, and provide users with means to choose how much to lock down their
donated content. Copyright law shaped the digital writing of Sarah, Carey, Rob,
and Heather. It caused them to spend more time composing, to read licenses, to
do special searches for copyright safe materials. All of the licenses they read,
texts and words and information, existed because of the power of copyright law.
Sarah and Heather purposely searched for online visuals and resources that

didn’t require attribution since attribution would either confuse their clients or

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make their web designs less appealing. Sarah even contacted someone in
Sweden to receive assurances that she didn’t have to attribute the use of his
boilerplate web-template on the church’s webpage she was creating in order to
avoid a lot of questions from church clientele. Copyright law necessitated the
production of lots and lots of texts.

More knowledge about copyright law among participants seemed related
to increased mediational power of the law. Copyright law had less presence in
the web compositions of Leslie and Heather, both of whom scored 50% on the
survey’s knowledge portion — lending credence to the idea that with increased
knowledge of an artifact comes the artifact’s increased mediational power.
Although both Leslie and Heather had some concern about copyright law's
implications in their writing - prudent Leslie would abide only if it was easy to do
so. Leslie had made most of her composing decisions for ethical or design
reasons. The same was tme with Heather. Neither Leslie nor Heather used
copyright symbols in their web writing, nor did they provide users with terms of
use. Jessie and Carey had the highest scores on knowledge. Jessie’s work
definitely had the greatest presence of copyright law since she had fair use and
copyright as themes in her digital compositions. Carey didn’t share a web
portfolio with me, but there was a huge presence of rights management on the
teacher-database exchange that Carey managed. She was very reflective about
these issues and constantly evaluated the copyright related practices of users.
On her social network site, she didn’t supply a lot of web content but the main

reason was that she didn’t want colleagues to perceive any code errors. She also

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knew she was representing the institution and thus knew any use she made of
others’ materials might possibly be evaluated for copyright violations - therefore
she decided to take the most conservative route.

As I discussed in Chapter Four, the certainty scores for the entire group of
334 were relatively stable around 2.3, somewhere in-between “somewhat
certain” and “not too certain.” The interviewees’ certainty scores ranged from
fairiy high certainty - by Amanda at 1.5, to lower certainty by Jessie at 3.1.
Jessie and Carey who had the highest knowledge scores had the lowest
certainty scores. The two participants actually show the opposite to my original
hypothesis, that with increased knowledge comes increased certainty. While the
sample is too small to draw any conclusions, as someone who works with
copyright law on a regular basis, I think this might make sense. The more you
learn about copyright law, fair use, and the individually determined, context-
based court interpretations, the less certain you become. Thinking back to
Engestrom's second generation activity theory (AT) triangle featured in Figure
2.5, Chapter Two, the more tool-like copyright law becomes, as opposed to rule-
Iike, the more a user might feel able to push and pull on that tool.

Engestrom (1990) states that rules are restrictive while tools are
malleable, transfonnable. Rules, being more definite may provide more certainty
rather than less. In the case of fair use determinations, being less certain might
be a logical outcome of having more knowledge. That is, the more tool-like
copyright law becomes to the user, the less certain she becomes. The more tool-

like, the more mediational - in Engestrom’s triangle rules are not mediational.

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Rules occupy a position on the triangle that Vygotsky might describe as
promoting “unmediated” memory — simple stimulus-response behavior. But I
don’t think we should generalize a clear relationship between certainty and
knowledge from my study. We have some conflicting results between the
interviews and the survey results since the survey did show a very weak positive
correlation between certainty and knowledge, but not enough to draw
conclusions. This would be an area for further exploration. Overall, I would enjoy
seeing higher knowledge and certainty scores across the board. To have higher
scores might facilitate invention in writing and reliance on metis for reasons I’ll
explain below.

Another reason why the writers’ speech was not chilled could be because
copyright law as a system of invention organized by rhetoric, produces
knowledge rather than chills speech. Copyright law is one of many functions in a
culture that produce authors. “Authors” produce knowledge. Thinking back to the
three levels of activity systems (society, TP field, and individual writer, producing
virtuous citizens, experts, teachers, webtexts) I imagined I was studying as
described in Chapter Three, below in Figure 6.1 is an activity triangle that better
reflects the complexity of what I actually see in the data. Copyright law, like other
systems of knowledge production, is a system of invention organized by rhetoric.
Law is also a concrete system of power. Under a Foucaultian lens, power
produces knowledge. Foucault reminds us that penalties are not simply to
punish, and that we must abandon traditional notions that knowledge can only

exist where power is suspended. Instead, looking at copyright law as a

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mediational concrete system of power, a system of punishment, means that
copyright law produces invention, creativity, expression, even the need to rely on
metis. Different texts or practices in different cultures, while not called copyright
law, serve the same function, the author-function. As I showed in Table 5.1 in the
previous chapter, such concrete systems that include the ability to punish, are
constructed by rhetoric and when more closely examined, provide guidelines for

the production and organization of probable knowledge, thus countering our fear

 

of chaos.
Cultural Activity System Organizing Meaning
Exerts
Concrete Systems of Power Pressure
Copyright Law; Rules of Ritual Craft Production;
Bible; Quran; Torah; US Military Dress Code;
i Systematic Violence i
_ Author
Subjects

 

V

FIGURE 6.1. Cultural Activity System Organizing Meaning

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Let me reiterate intellectual property (both patent and copyright) law’s
rhetorical roots. Recall Miller’s (2000) discussion of the novelty and discovery
senses of invention in the context of the hunt, the conjectural paradigm. As I
mentioned, such senses of invention can also be found in US intellectual
property law. Patent law explicitly requires novelty for an item to be patentable,
while copyright law requires novelty only implicitly — but both are concerned with
originality. In order for an invention to be patentable it must be novel, non-
obvious, and useful (Title 35, US Code). Wyatt (1986) writing on patent law
emphasizes the invention sense of “invention” rather than the “discovery” sense:
“An invention is an addition to the stock of factual knowledge . . . Invention is
construed as anything that adds to the set of known technological possibilities . .
. it is clear therefore that the output from inventive activity . . . is not easily
defined, let alone measured” (pp.3, 19). In order for a work to be copyright
protected, it must be original (Dane/l, 1940;Title 17 US Code). The novelty-
invention (as opposed to discovery-invention) senses of copyright and patent law
actually exist in both copyright and patent law. Carolyn Miller (2000) sets forth a
careful argument that says rhetorical invention holds both senses of novelty and
discovery.

The rhetorically constructed nature of US patent and copyright law can
also be seen from tracing its historical development. Novelty was not always
valued (as Foucault mentions in his essay how texts used to be circulated and
valorized without an author). Early English patents did not objectively protect all

new inventions, but instead were monopolies granted by Royal Prerogative

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(Feather, 1994; Mandich, 1948). Kaufer (1989) writes that political clashes
between Pariiament and the Crown developed because under the reign of Queen
Elizabeth I in England, patents grants were used to favor royal favorites and
implement mercantilist policy (p. 6). It wasn’t until the relatively late date of 1624,
when the Statute of Monopolies passed, that the friction between the Crown and
Parliament was addressed; the Statute of Monopolies abolished most aspects of
privilege and established some kind of objective standard. “T hus it appears,
according to prevailing doctrine, that England is the first to protect the inventor by
a law, even if she is not historically the first to grant patents” (Mandich, 1948,
p.168). Mandich (1948) notes that the Republic of Venice is usually credited as
the first to give patent protection to inventors in the form of pure privilege (John
Speyer is always the key example). Feather (1994) describes the 1469 patent
granted to John Speyer as a “privilege” which gave Speyer the “exclusive right to
print books in all Venetian territories” (p. 11). Speyer’s protection was not
dependent on his inventiveness, or originality, but rather on his industriousness.
Early on, intellectual property protection was more concerned with the discovery
aspect of invention than the novelty aspect. Over time this changed. But IP law,
like rhetorical invention, holds both the discovery and novelty senses of
invenfion.

In Chapter Two I described how invention was originally tied to topos or
place. This was also the case with intellectual property law. Although histories
frequently tie the printing press to the beginnings of copyright law, intellectual

property law was early connected to real property. Venetian mineral patents

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issued as early as 1409, and paralleled early non-print related invention patents
in their protection of monopolies (Mandich, 1948). Mineral patents involve the
protection of mining, and mining involves the hunt for valuable minerals. Like the
use of hunting imagery in the Renaissance vocabulary of invention, and the
quality of metis, early patent laws protected the seeking of minerals. What was
protected in these early mineral patents was the ability to hunt, or to discover. I
think the hunt informed by metis produces of special kind of invention.

Current US intellectual property laws also protect the ability to hunt and
discover. Fair use allows reasonable remixing with a guarantee of some
protection for original fixed work. Patent law promises a limited reward for
innovation. To the extent intellectual property law presents problems to potential
authors, it still is productive as authors become creative in order to work within
the law, write articles trying to figure out or change the law, or simply stay under
the radar and do as they please regardless of the law. The quality of metis as
Miller (2000) describes it in relevance to the hunt, arises as well in the context of
composing for the web in copyright imbued environments. This was confirmed in
my data. It should be clear that copyright and patent for that matter, are
rhetorically constructed systems of invention that also serve as concrete systems
of power. It is the power, force, or pressure component of the system that makes
it productive.

Vygotsky did talk about production of knowledge in the sense that he said
memory happens as individuals create complex, heuristical structures that help

them remember. This remembering was key to individuals’ ability to be inventive

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and complete particular tasks he or his students assigned, even though problems
were posed for the research subject that made task completion very difficult. My
study did not take place in a lab, but among mature writers who had been
exposed to cultural signs over their entire lives. Unlike Vygotsky, I did not isolate
a set of signs (he used cards with pictures for example), and then watch while
participants internalized those signs. Instead, I used the discourse-based
interviews to draw out internalized, or tacit knowledge, that participants had
previously absorbed. Thus, it is not surprising that copyright law was woven
together with a number of other rhetorical topics, creating a heuristical structure
that writers drew upon in their work.
A Frame of Justice

US copyright law as a concrete system of power purports to sustain
justice. We see that by its authorization via the US Constitution and its overriding
purpose to promote justice. Many Western scholars such as Thomas Hobbes,
David Hume, Adam Smith, J.S. Mill, John Rawls, and Chaim Perelman among
others (see Raphael, 2001 for a summary of their stances) attempted to improve
ancient definitions of justice (such as those espoused by Aristotle and Plato).
Yet, every version of justice loosely fits into the three precepts of Roman Law:
neminem laedere (to harm no one); suum cuique tn'buere (to render each person
what is his); honeste vivere (to live uprightly) (see Raphael, 2001, p. 86). I’m
going to discuss justice more later, but I do want to make visible the connection
between justice and copyright law, since I realize it might be a leap for some to

see this. US copyright law, like some of the other productive, concrete author-

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producing systems of power I mentioned earlier, is proposed to exist in order to
create or maintain justice. By regulating how a writer might use others’ materials
(not impair their future markets), copyright law attempts to make a subsequent
use of ones’ materials not harmful. Since copyright law and its fair use provision
sort rights, it tries to assign or render to each person what is his or hers. Because
copyright law is a law in the US, and thus presupposes an individual who can
abide by that law, it provides a means for one to live uprightly, virtuously, rather
than as an incorrigible. It gives us guidelines to live uprightly. For now, I adopt
the three precepts of Roman Law as my definition of justice in the context of this
discussion of heuristics’ mediational quality in digital composing processes.
Justice becomes relevant as an overriding frame to my original heuristic probe as
I discuss below.
A_Digit_al Wn'tipg lnventiogLHetLrietje

Another one of my findings is that rhetorical topics congeal as a heuristic
mediating the digital composing process of writers. This study provides a small
and incomplete snapshot of this heuristic structure. In this section of the chapter I
discuss that finding. Recall that in Chapter Two I developed a theory of heuristics
based on the work of Janice Lauer, Cynthia Haller, my pilot study completed with
William Hart-Davidson, and this full study. I concluded that heuristics can be
comprised of rhetorical topics, and that they can generate invention. I said
heuristics have five qualities. One, they are transcendent across individual
applications. Two, they have steps, sequencing, or a hierarchy - they have

flexible direction. Three, they have generative power. Four, they provoke metis,

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or the weighing and balancing of a number of variables - weighing and
balancing sometimes informed by metis. I discuss metis more thoroughly below.
And five, special topics, such as professional writing on the web, are tied to
special audiences. My heuristic probe at the beginning of data analysis consisted
of the following rhetorical topics, as I described in Chapter Three:

1. Probability Thinking (sometimes informed by metis):
Thinking/calculating of probabilities, risk, weighing consequences,
strategizing that isn’t fitting in the other categories.

2. Copyright Considerations: Using, applying, referencing copyright law
such as asking permission, originality, etc.

3. Fair Use Considerations: Referencing fair use or the four factor fair
use test of section 107 (fair use elements such as educational use,
amount used, size, etc.).

4. Ethical Considerations: Ethical/ political considerations including
considerations of attribution.

5. Design Considerations: Issues of design/content rather than issues
of copyright as influencing composing choices.

6. Faithlreligion: Reasoning based on one’s cultural background,
religious beliefs, or faith.

7. Employer Demands or Requirements: Reasoning based on the

demands or requirements of one’s employer.

Thinking pattems I mentioned in Chapter Three where writers reflected on their
own lack of knowledge is captured in probability thinking - since it is part of a
probability calculation regarding how sure one can be in a decision and if not
sure, what other strategies are available. This thought process may be informed
by metis. As mentioned in Chapter Three, I also had interviewees who were not
as reflective, but instead deferred to another authority. Heather, the
undergraduate who worked for a couple departments on her campus, generally
trusted the faculty members who supplied content to her regarding its copyright

safeness. When it came to her work for the national health organization, Amanda

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used employer generated copyright release forms, and drew upon
organizationally supplied content in order to compose for the web. Thus, she was
not required to be as reflective about copyright law, ethics, family values, etc. For
her personal digital portfolio though she was reflective. So this depended on
which subject position she occupied with respect to authorship.

All of the digital writers I interviewed used metis, a kind of cunningness
and craftiness. A really good example is the strategy Rob used, recommended
by the Indian outsourcing company where he previously worked. The web writing
Rob did for that company involved the creation of promotional pages that would
entice people to go to the compaan actual website. Rob explained:

We didn‘t, didn't have the, capacity to be very creative, we just had
to have the work done . . . the content was humanly not possible to
write, generate so much variety of content, for the same company,
twenty pages, you know. I was allowed to use [others’] web content
provided that I jumbled up the words, because I had to write twenty
pages for the same topic.
So the company had its employees use existing content from the web and jumble
up the words, “put in our own spices,” upload the pages on the web and then
check the URL at copyscapecom, a website that let’s you check to see if
someone is copying your website. Instead of using copyscape for that reason,
Rob used it to make sure the websites he created didn’t “copy” another website
too much, even though the content was taken from pre-existing websites.
Heather, the undergraduate professional writer working for faculty, also

used metis by staying quiet about her concerns regarding where images

provided to her had originated:

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Martine: OK, so, when you were making the site did issues about
copyright come up at all that you were worried about, or that
anyone else was worried about?

Heather: If anyone else was worried about it, I don’t think the
concern reached me, like via email. I didn’t really think about it too
much, but I think mainly because I was given all the photos and um
I did wonder like where the photos from the front page came from,
but I didn't really do anything about, like that curiosity, but, um I did
think about it.

Martine: Like did you wonder, were you wondering if the people
had given their permission and stuff like that, or what? What were
you wondering about?

Heather: Well, on the front page, the image of [name of guest
speaker], he, when I was sent the photo, I was actually sent two or
three photos, and they were - they seemed to be from different
time periods, like one was when he was younger, like he didn't
have so quite a gray beard, and um, I was just wondering like did
they get them from his website? Did they get them from another?

Martine: Did they just go grab them or did he give them
permission?

Heather: Right, I did wonder that but I never asked about it.

Throughout her Interview, Heather discussed moments during the composing

process, having been given content by faculty members, where she quietly

questioned the safety of using that content - both to protect others’ privacy, and

for legal reasons. But ultimately Heather decided each time to defer to the faculty

member, trust their judgment, and stay quiet about any of her questions.

Considering Heather’s position as a for-hire writer and a young undergraduate, it

was probably strategic for her to remain quiet. She wasn’t really in a position of

authority to question. However, when inserting images of students in a webpage

that supported a grant, she did say she screened the photos to make sure no

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one was pictured in a way that might be misinterpreted. She explained that
faculty might not notice such things:
. . . sometimes just because, the professors and the directors are
really concentrated on just making sure that the text is right, and
the, and that they are getting funding and that sort of thing, that
they don't always take into consideration, or it doesn’t seem to me
like they are always taking into consideration things like the entire
context of it, like there are other people involved.
Heather never voiced any concern to her employers, but said she did screen the
photos provided to her “especially if there's someone like drinking beer in a photo
or something like that, I would you know, just try to casually mention, you know,
is this person OK with this, do they know that we are putting it on the website,
that sort of thing.” Heather exercised metis because she hid her knowledge
strategically. She thought about copyright and privacy issues, but did not say
anything since no real and pressing problems arose during the composing
process. All of her thoughts though, will never be known to her employers. She
used metis to perform her role as undergraduate “student” employee and
invisible writer.

One my questions when looking at this heuristic along with considering the
activity theory triangle shown in Figure 6.1 featuring concrete systems of power
as mediational, is why does my heuristic generate invention? Why are heuristics
productive? Above I concluded that copyright law actually causes the production
of discourse rather than chills it. This conclusion maps onto my view of heuristics

as rhetorical topics generating invention. Each of the rhetorical topics comprising

my heuristic, ethics, religion, design requirements, etc., exert pressure or force

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on the individual digital writer. That is, like copyright law, each rhetorical topic is a
component of concrete systems of power that organize meaning.

Foucault theorized the economics of laws - how law and ethics flow
through individuals as measures of control. Foucault discusses how certain
discourses like that of law fold into, or are intemalized by individuals in order to
control them from the inside. This is an efficient strategy for control. Foucault’s
view here reminds us of Vygotsky's internalization with the difference that
Foucault discusses the internalization of strategies of power, usually as they
pass through individuals, and usually with a negative connotation, where
Vygotsky discusses the intemalization of knowledge and usually with a positive
connotation.35 Foucault (1977) very explicitly discusses how, after torture-as-
discipline-and-punishment became viewed as an atrocity (drawing and quartering
is his initial example), certain legal discourses developed to control individuals’
behavior from the outside-in, eventually completely from the inside. Ethics thus
makes people do things in the same way that law might. The same is true with
religion, or if you are a professional writer with your ethos at stake, design best
practices or guidelines can be similar to an ethic, law, or religion. Hutchins (1995)
points to the same phenomena when he defines “constraints” during navigation,
while Law (2003) might call this control from the inside overcoming resistance of
heterogeneous materials. (All three men of course put different spins on this).

What I assert then, is that the rhetorical topics in my heuristic probe are
not weightless. They are not floating at the tip of the AT triangle. They have

weight. They have power - and to the extent they have power, they have an

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agency independent of the writer. This fact might inform the use of inventional
heuristics in composition pedagogy because I think much of the problem in
motivating students to think of ideas is that there isn’t much at stake, relatively
speaking. There is always the grade, the due date, and the pressure of working
in the space of 14-16 weeks, but for some groups of students such as those I
work with at the community college, high grades are definitely not a priority.
Service-Ieaming and public rhetorics probably help create a set of heuristics with
force or power, since student writing then is tied to other concrete systems of
power. Perhaps one of the reasons public rhetorics and real civil engagement
works in FYW curriculum, for example, is because it exerts pressure or force on
the student to be inventive. Service-Ieaming presents the student and teacher a
ready made inventional strategy comprised of a set of heuristics that may or may
not ever become part of anyone’s meta-awareness. Heuristics often operate at
the tacit level. Some students who already have a highly developed sense of
citizenship or justice also may already be operating under a set of heuristics that
motivates them to complete the assigned task. They may feel the pressure of
morals or ethics. The connection between invention and power is worth further
exploration.

Because probability thinking informed by metis, weighing and balancing of
rhetorical topics took place across topics, I revised my original heuristic to reflect
that hierarchy. I also collapsed the copyright and fair use rhetorical topics
because they are really inseparable from each other, both in law, and in the

writers’ reasoning.

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A Theory of Metis in Invention
Since I have now prioritized metis in my heuristic of digital composing, I
will expand on that term a bit.“6 In the mid-1970’s Marcel Detienne and Jean-
Pierre Vemant (1978) wrote a book on metis: Cunning Intelligence in Greek
Culture and Society. More recently Janet Atwill (1998) and Robert R. Johnson
(1998) discuss metis and Jeff Grabill (2007b) also discusses the concept,
arguing that in the context of community literacies, institutions should be “metis
capable,” i.e. support invention. Metis is actually a figure in Greek mythology.
She was the first wife of Zeus, but right before she gave birth to their daughter
Athena, Zeus swallowed her so he could capture her cunning intelligence for
himself. Detienne and Vemant (1978) describe metis:
. . . metis is a type of intelligence and of thought, a way of
knowing; it implies a complex but very coherent body of
mental attitudes and intellectual behavior which combine
flair, wisdom, forethought, subtlety of mind, deception,
resourcefulness, vigilance, opportunism, various skills, and
experience acquired over the years. (p. 3)
Trickster rhetorics (Powell, 1999; Terrill, 2004), performance based pedagogies
(Lindquist, 2004), as well as Haraway's “Cyborg” identity are very similar to
metis. Powell writes, “Ambivalent, androgynous, anti-definitional, the trickster is
slippery and constantly mutable” (p. 9). Haraway writes, ““Cyborg writing is about
the power to survive . . . on the basis of seizing the tools” (2004, p. 33). Haraway
invokes the Cyborg in order to imagine a world without gender, a subject that no
longer attempts to “heal the terrible cleavages of gender" (Rife, 2005, p. 18). The
Cyborg is a being that no longer depends on “the plot of original unity out of

which difference must be produced” (Haraway, 2004, p. 9). The reason I think

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Haraway’s discussion is important is because in the ancient definition, Metis
transcended opposition, which is different than fighting against or opposing
opposition. The idea of using invention to transcend, rather than oppose, I think,
is worth pondering, especially in light of invention’s productive power. Back in
1997, Porter wrote “the realm of hyperreality can become a realm of domination,
unless writers are willing to adopt the role of “cyborgs” (p. 63). Transcending
products of power by being productive yourself (rather than always resisting and
opposing) seems to me a prudent choice. Jessie transcended copyright law by
fully embracing it with her journal article, conference presentations, open letter to
copyright holders, and piracy movie. Thus far, she is experiencing success and I
expect that trend to continue.

I think Haraway’s description of the Cyborg could have been lifted right
from the pages of Detienne and Vemant. Metis, for the Greeks was a feminine
noun, but like Haraway’s Cyborg, Metis for the Orphics was “an androgynous god
with a twofold nature” (Detienne 8 Vernant, 1978, p. 134) implying, according to
Detienne and Vernant, that metis transcends the opposition between male and
female. Metis is likened to water slipping through the enemy's hands, like fire
which can lightly toast or annihilate, polymorphic, like a trap in that it is “the
opposite of what it seems to be” (Detienne 8 Vernant, p. 44), like Homer’s
Odysseus, “an octopus,” whose “strings of words . . . unfold like the coils of the
snake, speeches which enmesh their enemies like the supple arms of the
octopus” (p.39). According to Detienne and Vernant, for Aristotle, the

panourgotatos, octopus, or cuttlefish, was the “most cunning of fish” (p. 159). As

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Carolyn Miller (2000) points out, metis is connected to cunning intelligence and
the hunt, the conjectural paradigm. According to Detienne and Vernant, all
activities involving metis involve a “conjectural type of knowledge” (p. 311):
To conjecture, tekmairesthai, is, in effect, to open up a path for
oneself with the aid of guide-marks and to keep one’s eyes fixed on
the goals of the journey just as the navigators do, placing their trust
in the signs of the diviners and the luminous signals in the sky . . .
approximate knowledge is explicitly represented as a long journey
through the desert (eremos) where there are no visible paths and
where one must constantly guess the way, aiming at a point on the
distant horizon. (pp. 310-311)
As in Detienne and Vemant’s quote, when writing for the web in copyright
imbued environments, “one must constantly guess the way.” The “guide-marks”
are the variables we consider as we write. Is the use of this image legal? Ethical?
A good design choice? Do the copyright stakeholders have deep pockets? Will
they pursue me or leave me alone? Can I “hide” my digital writing from “the law"?
Can I disguise the texts I’ve appropriated by changing their shape, texture,
meaning, by synthesizing? These were all guide-marks considered by my
interviewees as they constantly guessed their way in the digital composing
process.
There is a clear connection between probability thinking and metis.
Probability calculations involve conjecture - hunting for the right choice. Hunting
certainly involves a cool calculation of probabilities. Successful measuring of the

probabilities and successful choice in an action is evidence of thinking informed

by metis. All of the interviewees in my study had in the literal sense, probably

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violated copyright law — yet none of them had been challenged. Instead their
writing had be used, celebrated, and been key to some of their successes.

Like the four factors listed in the fair use statute, section 107, the heuristic
probe I offer functions as “guide-marks” used by the navigator gaining probable
knowledge in the night-sky. While some argue for more certainty with respect to
fair use, I remain committed to the statutes’ uncertainty. Uncertainty is more
pliable and better supports invention than does certainty. Uncertainty allows
metis to be leveraged.

Detienne and Vemant point out that after Zeus swallowed Metis,
cunningness was assigned to the gods in an ordered fashion. Not all gods had it.
And it’s clear in Greek myth that having metis didn’t necessarily bring happiness
and joy:

The cunning of Metis constitutes a threat to any established order;

her intelligence operates in the realm of what is shifting and

unexpected in order to better to reverse situations and overturn

hierarchies which appear unassailable . . .the children of Metis

inherit from her the devious intelligence which characterizes her.
The quality of metis is very relevant to digital composing in light of copyright law's
imposition in web space. The law tries to establish order. The digital writers I
interviewed certainly constitute a threat to copyright law. In many instances they
rendered copyright law impotent. One thing to point out about metis, is that
having and showing it can be a liability. According to Greek myth, one might try
to hide their cunning wit or suffer the fate of Metis who remains locked and

hidden forever in Zeus’ entrails. Organizational work-for-hire policies, on a much

less dramatic level, do consume the metis of their employees — i.e. they stand as

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author and supersede individual employees’ authorship. Such was the case with
Amanda and Heather. Work-for-hire policies though do create order. It would be

very difficult to manage an organization’s identity with 2,000 individuated authors
of it.

In Greek myth not all gods had metis; some instead had practical knowledge,
andence, or phronesis: “. . . phronesis. . . refers to the forewarned prudence
which is the characteristic attribute of metis” (Detienne 8 Vernant, p. 138).
Phronesis is the kind of inventional quality Leslie had. Phronesis is often
associated with politicians. Aristotle made a distinction between prudence and
cleverness (Detienne 8 Vernant, p. 316), but I see no reason to think that both
aren’t inventive qualities. Leslie’s score on copyright knowledge was only 50%.
She was aware that she didn’t have a great deal of knowledge in this area, which
is one reason why she didn’t focus on it in the FYW course she taught. Instead,
she exercised prudence — she password protected things if it was easy to do so —
she basically knew that her chances of being held liable for copyright
infringement were small. I quoted Chaim Perelman’s definition of legal reasoning
in Chapter Two — legal reasoning is an elaborated individual case of practical
reasoning. Practical reasoning is pmdence, like Leslie had. Practical reasoning
elaborated upon, with a cunning edge, is metis. As I said in Chapter Two, legal
reasoning at its best, draws upon metis. But even though Leslie was prudent
rather than perhaps “cunning” with respect to copyright, she was still inventive.

For practical purposes, my writer-interviewees did exhibit metis as I

illustrated above, although not in a fashion that I can concretely quantify. Based

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on mythology as well as the characteristics exhibited by the interviewees in their

goal of avoiding copyright liability or chilled speech, the following qualities can be

extracted as comprising metis in the context of digital writing in copyright imbued

environments:

1.

Kairos — timing, especially when to keep one’s cunning wit hidden or
knowing when to stay under the radar of copyright holders. Patience is an
element of kairos — when Odysseus and his men were trapped in the
Cyclops’s cave, Odysseus waited patiently observing Cyclops’s habits,
and then waited longer for him to fall into a drunken stupor in order to
make the move that allowed Odysseus and his men who’d not yet been
eaten, to escape. Odysseus’ patience included the willingness to sacrifice
and suffer; as he waited several additional men served as Cyclops’s
evening meal.37

Research Abilities (Research 8 Appropriation or Hunting 8
Gathering) - in order to have foresight one must have knowledge or
know where to get the knowledge one needs. One must also know when a
check with the guide-marks is in order. (You need to know what questions
to ask, when, and of whom). We might revisit stasis theory and issue
spotting to develop research abilities in the context of metis. Research
abilities encompass the ability to hunt with foresight, to plan, to conjecture
in a cunning fashion. Research abilities also include the know-how to
appropriate what one needs to - or gather. One needs to be able to
smartly pick and choose.

Subject Area Knowledge - this cannot be underestimated. In order to
make a fair use determination or understand one’s potential liability under
copyright law, one must study the law and know a lot. Clearly in the survey
and interviews, digital writers want to know more about copyright law as
well as other laws impacting digital writing. Sarah for example, wanted to
know how to negotiate contracts with clients and how to draft and use
permission and release forms.

Flexibility — be ready to change paths on a moments’ notice; have
backup plans. Many interviewees had made a fair use determination of
their use, but were ready to take materials down if asked - had various
arguments in place they could use it called to task.

Stakeholder Status — something serious or very important to the writer
must be present. In Greek myths it was often the person’s life or the life of
a loved one. For professional writers it could be their ethos, the ethos of
their organization, ethics, religion, or an ingrained sense of justice and
fairness. Metis usually happens where pressure is exerted.

Success — if you are accomplishing your goal - in the case of copyright
not getting sued or asked to take something down, it might be an indicator
of the presence of metis. At this writing I report that Amanda obtained the

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international teaching opportunity she applied for, and Leslie took a
position at her first choice of employers.

Since it’s clear metis can involve trickery and deceit, we have to decide
what to do about that problem. As George Kennedy reminds us rhetoric’s always
been seductive. Perhaps President Bush fell victim to this seduction - that could
explain his reliance on 935 false statements that propelled us into Iraq (“Study,”
2008). The seductive power of rhetoric springs eternal. But Powell reminds us
(1999), “The trickster doesn’t play malicious tricks . . . ” (p. 9). In Greek myths,
justice is sometimes served through the use of metis (although I cannot say it is
accomplished without harming anyone, one of the three precepts of Roman
justice). Since all seven digital writers I interviewed were trying to act justly and
fairly — perhaps why ethics was so important to them, justice might serve as a
tempering framework enclosing our use of metis as professional writers. Aristotle
and other philosophers believed that justice was the virtue that encompassed all
others. Jim Porter writes (1997): “T o be an effective rhetor, you have to know
what is good, be able to move toward it yourself, and be able to have the
persuasive capacity to move others toward it as well” (p. 37). Taking that into
consideration, my revised mediational heuristic, reflecting the hierarchical and
embedded nature of composing choices, the priority of metis, and the justice-

framework, appears as in Figure 6.2.

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Jusflce

/ W \\

Ethics
Metis

Design Standards

< >

Employer Requirements

K k Copyright/Fair Use //

FIGURE 6.2. The Mediational-Digital Composing Heuristic

 

 

 

 

I offer this as a start to thinking about the composing processes of digital writers.

I do not think it is all conclusive; I interviewed only seven writers. More research
in this area is certainly needed. I should think a study of workplace-digital writing
practices might prove helpful. Also, further studies on the role of metis and justice
(and their connection, if any) might prove particularly useful in understanding
digital writerly decisions. As far as teaching and Ieaming, the digital writers in my
study, both the survey takers and the intervieWees, really wanted to know more
about copyright law as well as other laws impacting digital writing. Sarah in
particular, who was slowly developing an independently owned web design

business, also wished she could have Ieamed more about contracts, permission

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forms, releases, and negotiation during her master’s program. Sarah had
participated in service-Ieaming courses during her degree program, but noted:
I think so much everything I've encountered is different then how
we did it in class . . . I mean I just wish, I love the different things we
Ieamed in school, but the focus was really on work you do in the
classroom, and I think about all the time we were building stuff in
class where I wished we had pretended we were doing it for
commercial reasons. And so that we really had to talk about the
issues, and think about them then as opposed to sort of ignore
them because we were safe then.
Ethics Trumped the Law
When we consider the hierarchical and embedded (Flower 8 Hayes,
2003) nature of rhetorical topics that mediate digital composing choices, for this
group of writers, ethics trumped the law. This is supported in both the survey and
the interviews. Recall that in the survey, of 384 TP writers who answered, 73%
would follow their conscience rather than the law on exceptional occasions, while
only 14% would obey the law without exception. As Carey points out, you have to
break the law sometimes “because I mean we wouldn’t have all the civil rights,
the law now, we wouldn’t have it unless people stood up to the law.” The seven
interviews certainly supported the idea that digital writers are more concerned
about attributing, asking permission, not harming others, than they are about
legal violations. Sarah, for example, had deep concerns about implications of her
use of others’ content, not with respect to herself, but with respect to the church
she was writing for. She contacted a content owner in Sweden to make sure her

use of his materials was legal and ethical. “The whole thing was just really

confusing to me, but because I was getting paid for it, it made me, it wasn‘t like in

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school where I didn't really worry about it because it wouldn't really matter, like, I
didn’t want this to come back to the people I’d done it for.”

We can connect this finding to previous discussions in our field. Chapter
One discussed Porter's (1997) argument that if the law is unethical, we can break
it. The majority of writers in this community agree with Porter as evidenced in the
survey and backed up in the interviews. In his 1998 book, Porter states that one
of the first steps to developing what he calls a critical rhetorical ethics in
cyberspace involves recognizing that webwriting has “legal and ethical
implications” (p. 145). We are there. The 300 plus survey takers were aware of
legal and ethical implications of web writing as evidenced by an average score of
63% on the knowledge portion, and by 73% responding to the question on ethics
versus law, stating that on occasion it’s acceptable to follow your conscience
rather than the law. All seven writers I interviewed had this awareness of legal
and ethical implications. Heather tacitly screened photos her employer sent her
as web content since she knew of possible negative implications. Leslie used
Adobe filters on flickr images in order to protect young game players’ identities.
Carey kept her social network site content free in order to protect the institution
and its connection to her professional identity. Amanda had the same kind of
concerns with her web persona and her institution’s identity.

Amanda, like the other interviewees is extremely concerned with ethics
which were more important to her than legal requirements. Amanda tells me in
her digital portfolio she wants to showcase her editing abilities, but when using

others’ texts she asks permission. She explains some of her materials:

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The first three were all pieces that I did in a class where everybody
was developing their own published work. So my role in each of
these pieces was really to do some kind of editing, whether it was
developments, or something like that. With each of these I did ask
permission from the people who wrote the original to have their
work up there and they all gave permission so I have the original up
there because I want to be able to contrast what the original looked
like and what the changes were after I edited it or what suggestions
I made, because some of them show like my editing comments.
Smartly, Amanda also notes in text throughout her portfolio “used with
permission” in order to signal to her audience her awareness of the ethical issues
arising when incorporating others’ texts into one’s own writing. Some of the other
materials on Amanda’s website are chapters and flyers she’s edited. These items
are from real companies.

She did not include the originals because she doesn’t have permission
from the companies. But interestingly, the original chapters and flyers were
provided to her by the teacher of an undergraduate course. I asked her “Did the
teacher in any of these courses tell the students like did any of them address
issues of copyright and fair use, or using those kinds of materials in your
professional portfolio; how did you decide, was it part of the curriculum?” And she
replied: “No. No it wasn't discussed.” So she independently decided that it would
be unethical to use someone else’s materials without their permission even in the
case of doing it to illustrate her own editing skills acquired at an educational
institution. However, she did include the original when blended with her edits.

She explicitly tells me her pressing concerns when writing for the web are ethical,

not legal. For a number of interviewees, even though they could use material

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under fair use without receiving permission, they requested permission anyway
not because of fear, but because it was the right thing to do.

All the writers had some awareness of legal implications of their
webwriting even though two had scores as low as 50% in copyright knowledge
(one a PhD student and the other an undergraduate). Of course, increased
knowledge and understanding in the areas of law and ethics would heighten
awareness. It’s not possible to foresee implications when your knowledge is
lacking. In research, we might further examine the connection between the
weighing and balancing of legal versus ethical implications through invention and
reliance on metis. Why ethics trumps the law can only be speculated upon
without further research. It could be because students had been taught more
about plagiarism, attribution, and permission than they were taught about
copyright law. We cannot know the answer to this without conducting another
study that might trace where and to what extent writers obtain their knowledge of
ethics, law, religion, etc.

Logie replies to Porter’s suggestion to avert law, arguing instead that such
tactics should be public and organized which is a valid stance if we think of public
advocacy. But only one of the writers I interviewed, Jessie, was involved as an
activist by presenting at conferences and writing journal articles. Yet, the other
writers were using metis and invention to transcend the law. In another research
trajectory, we might focus on the larger goal of justice rather than ethics, since
that is what we are all hopefully working towards. Justice is a value laden

concept, a concept that has agency and which exercises its own kind of metis —

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justice is polymorphic, able to change shape on a moment’s notice, like water
flowing through your hands, one of those concepts we will probably never pin
down. A frame of “justice” encourages the weighing and balancing of
considerations as far as what’s good for the whole, the community, the union,
versus what is good for the individual. Perhaps Leslie acted prudently with
respect to copyright because she managed her time the best she could in order
to benefit the Ieaming of her students. Perhaps Amanda willingly conceded her
own authorship to the national health organization that employed her because
she knows that overall, this health organization is doing good things for people
across the nation. Giving up her personal authorship in this context serves
justice. I have far less answers here than I like, but think this is an interesting
area for further research. What is the connection between digital authorship, the
law, and justice?
Rules or Tools?: The Agency of the Law

While the study supports the idea that laws have agency, as knowledge
and understanding increase, that agency is increasingly diminished by the
human actor. The law’s agency is connected to where it ends up on the AT
triangle. In his research, Vygotsky focused on how human participants formed
complex intellectual structures (heuristics) through the use of signs. He didn’t
look so much at how the sign itself changed. Engestrom points out that as
mediation occurs, both the object (in this case the webpage) and the tool (in this
case copyright law) change, producing a kind of duality in the mediational

placeholder on the AT triangle. The placeholder is both the artifact (copyright

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law) and the understanding of that artifact (knowledge and understanding of
copyright law). In AT though, the focus remains on the interpretations of the
mediational means by the human subjects. ANT, in contrast, focuses on the
artifact, how it is composed, and its relationship to other entities, things, people.
Engestrom (1990) did not explain how something goes from being a rule to a tool
on his triangle (pictured in Chapter Two, Figure 2.5) but he did say that an artifact
can be both. His example is medical records, which he says are a tool if they are
perceived to be so, in use, by the participants he interviewed.

If the participants (doctors and assistants) thought the records were just
for storage, or prescriptive rules from above, then in Engestrbm’s view those
records occupied the rule placeholder on the triangle. He also notes that people
often get confused about whether something is a rule or a tool. Rather than
looking at tacit understanding the way I did, he simply asked his participants
outright “is this a tool”? Their answer thus depended on however they were
personally defining tool (not having been apprised of the AT definition of
mediation and the idea that tools are transfonnable while rules are not, etc.).

The theory I began with, rhetoric theory and activity theory with Foucault
mixed in, proved inadequate for analyzing the relationship between tools and
rules, and for analyzing how law functions, what it causes people to do, how it
flows through people, and what people do to it. I saw law changing due to writers’
understandings. I saw authorship of webtexts shifting. I saw differences between
various writers’ motivations and understandings. I saw the law and other

considerations, like ethics, flowing through people and colliding in webspace.

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ANT provides a means to examine the relationship between placeholders on the
activity theory triangle like copyright-law-as-tool versus copyright-Iaw-as-rule. So
if I imagine the possibility that what is mediational at one moment on
Engestrom’s activity theory triangle might be non-mediational at another moment,
ANT would give me a mechanism to do this because ANT is good at helping
examine the relationship between things. Neither Foucault nor AT have a clear
method to do this.

ANT instead provides the ability to examine mediational and other
artifacts, privilege them in research, and trace their origins. While Engestrom
purports the importance of taking the system and the personal view in research,
ANT allows me to take the human and artifact view instead. I analyze the
humans, as I’ve done thus far. But with ANT I can put the law in a central
position, and ask what the world would look like to the law. (At the point you are
reading this, for you I am a text not a human — which makes more complex the
irony that as a human writing this I hold out I am capable of taking the
perspective of the artifact; you see I can be both a human and an artifact —
therefore I am equally capable of taking either perspective). I do want to note that
I cannot fully use the ANT lens because my study was designed with AT which
imposes a certain shape on the research before data is collected.

To fully understand the copyright network with ANT - to understand for
example where writers get their legal knowledge, a different study is needed
where I’d probe that issue with different questions than the ones I asked.

However, because I traced authorship with my questions, I do think my methods

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were ANT-like in that they traced certain networks, or initiated the tracing of
certain author—networks. An interesting future study might trace the content in a
writers’ webtext, and not stop with the writer, but continue backwards until one
could no longer find an author. This study might involve judicial opinions, which
are known to “plagiarize” attorney briefs, and then continue backwards, tracing
where the content in the attorney brief’s derived, and so on.38 Going into the pilot-
study originally, I thought copyright law would have a greater presence in the
webspace-commonplace. But as my heuristic reflects, things were much more
complicated than that.

Competencies of nonhuman artifacts, like laws, are folded into humans—
this is where Foucault comes in, and in reverse ANT permits focus on how
human competencies are folded into nonhuman artifacts in the Latourian (1992,
1988) sense. If law has agency in the ANT sense, then one might be able to
suppose that like the human participants in Vygotsky's experiments, the law can

“learn” and change over time (and in fact it does) — that there might be something

0 O

Actual Text-based Law Proximate Law

 

FIGURE 6.3. The Actual Law and the Proximate Law

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like the actual, text-based law, Title 17, and the proximate law — the proximate
law being what the law is in people’s minds and behaviors (See Figure 6.3).
Figure 6.3 draws upon Vygotsky’s theory of Ieaming: actual development and
proximate development. Actual development is what a person can accomplish on
their own, and proximate development is what they can accomplish in
collaboration with others. Using ANT we could make an analogy between this
kind of Ieaming in humans, and the same kind of Ieaming in a nonhuman. That
is, like human Ieamers, the law's proximate abilities follow its actual abilities, and
the law grows into, or transforms into how the law is actually being applied and
understood. Every time a law is changed then, it’s always already behind where it
should be and is never able to quite catch up to its proximate self.

In a dramatic view of such a perspective, while she doesn’t talk about it
with the AT frame at all, Emile Cloatre (2008) of the University of Nottingham, UK
has just published a study using ANT to study the presence of patent law in
Djibouti. She found a total disconnect between written law and practice. In this
case, patented pharmaceutics were widely and exclusively prescribed in Djibouti
even though no written law existed mandating this practice. The reason is
primarily because, she found, French pharmacists have a huge presence in
Djibouti, and in France pharmacists almost exclusively rely on patented
pharmaceuticals rather than generic. What Cloatre found is rather stunning in
that we cannot assume a written law has anything at all to do with social practice,
even though as she states, and I can attest to, in legal discussions it’s always

presumed that the law has huge agencies and will change people’s behaviors

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upon enactment. At the law school, it is assumed laws are the ultimate
motivators of human behaviors.

However, under my Vygotskian view as well as per Cloatre’s findings, the
actual written law is almost beside the point. It simply backs up what we are
already doing. A follow-up study to mine might be to explore where writers get
their copyright knowledge. There might be no connection to Title 17, US
copyright law. We can only speculate a connection until we know for sure. I know
few non-lawyers who have read it, and Hobbs, Jaszi, and Aufderheude’s (2007)
study found that copyright/fair use misinformation is likely perpetuated from
teachers to students (rather than from Title 17 to students). But they assume
students get their copyright knowledge from teachers. We do not know this for
sure. I only slightly explored this in the current study. Students could be getting
their information from youtube for all we know. Heather, for example, Ieamed
about deviantart.com from high school friends first rather than a teacher. Jessie
was told two different things from two different teachers in the same professional
writing program, and thus did research and made copyright decisions on her
own.

Foucault's strategy was to “isolate techniques of power exactly in those
places where this kind of analysis is rarely done” (Foucault, 1984, p.10). Using
activity theory to isolate copyright law provides a technique, or mechanism to
accomplish this. Foucault coupled with ANT provides theory on how to invert the
focus in the typical AT study onto the texts’ perspective rather than the humans’.

Using ANT to imagine copyright law’s agency, and how copyright law might flow

274

through writers and change the webtexts they create, might appear as in Figure
6.4. One of the difficulties with the various generations of activity theory triangles
is that a figure by nature is fixed, and yet I’m trying to represent movement. To
further this effort, I draw upon the work of Edwin Hutchins (1995) and his
discussions of shifting perspectives that surfaced when he studied distributed
cognition in the context of ship navigation. Figure 6.4 is based on his diagram of
the shifting relationships between a moving boat and the stars, in relationship
with an island. In my diagram, at the tip of each arrow one might image a
webtext. As the writer’s understanding of copyright law varies, so does the
impact the law has on the writer’s webtext. As the understanding of copyright law
shifts, so does the web composition that is produced under its mediational
powers. Figure 6.4 also represents Foucault’s idea of power flowing through the
individual. Finally, Figure 6.4 tries to represent both the ANT and Foucaultian
perspective that actors shift in and out of positions in relation to one another.
Using Hutchin’s (1995) method of mapping here provides a useful way of seeing

the shifting relationships between actors, both human and non-human.

275

 

 

roximate co ' ht law
actual copyright law p pyng

FIGURE 6.4. Relationship of Copyright Understanding to a Webtext. At
the tip of each arrow one might image a webtext. As the writer’s understanding
of copyright law varies, so does the impact the law has on the writer’s webtext.
The idea of this diagram is taken from Hutchins (1995), except where l have
the copyright law, he has a canoe. Where I have the writer, he has an island.
Where I have the webtext, he has stars. So as the canoe travels, the position
of the stars change in relation. In western navigation, the island is mapped as
fixed.

Copyright law is the “end product of a lot of hard work in which heterogeneous
bits and pieces . . . that would like to make off on their own are juxtaposed into a
patterned network which overcomes their resistance” (Law, 1992, p.2). Copyright
law as a node, is an actor into which human competencies have been folded
(Latour, 1992, 1988). Like speed bumps intended to stand in for a traffic cop
(Witte, 2005) copyright law stands in for the copyright police, hoping to control
individuals economically (I hope you are reminded of Foucault here). The actual

law is the text-based law as it appears in the statute, Title 17. In contrast the

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proximate law is the law as enacted through human behaviors. Based on the key
misunderstandings located in my survey, the proximate law, the law as imagined
by those in TPW, actually would be more beneficial for these writers than the
actual law. We cannot know of course whether the actual law will eventually
morph into the proximate law in this context, but it is certainly worth pondering. It
is one way to explain changes in the actual law when they do occur.

As seen in the interviews, sometimes copyright has a visible presence in
the writer’s webtext, and sometimes it does not. People, things, and entities
which are not understood are usually Ignored. Copyright law as written certainly
isn’t designed to be understood. Imagine if I usability tested Title 17, a 326 page
document that is US Copyright Law? I imagine if users were faced with a simple
task of selecting an image found on the web and placing it in their own text,
legally per Title 17 - not only would they have to study Title 17, not an easy task
since it’s written in legalese, but they’d also have to research the origins and
ownership of the image to decide the likeliness of a copyright holder challenging
their “fair use.” If a writer solely relied on Title 17, they might make a wrong
choice because Title 17 doesn’t tell you, you need to go read all the cases that
interpret it. My guess is that Title 17 would be deemed entirely unusable to
anyone but copyright specialists - high paid attorneys. It could be redesigned
though. Perhaps this is something worth examining - a usability study of
copyright law and development of recommendations. But such a study might be
blocked or ignored due to the fact that if the law could be understood and applied

by everyday citizens, lawyers would be out of work. But we would be closer to

277

achieving justice in the US if laws could actually be understood by the people
they apply to.

I call the agency of our written law into question. Copyright law has a
certain irrelevance in webtexts because the physical shape of the browser
window lends itself to ready-made fair use (thumbnails, low pixels, short quotes).
Another reason copyright law is less important than it might be is because people
are incredibly imaginative in their understandings of it. It’s a tool to them (like
most artifacts — I think very few artifacts are actually rules). Tools transform.

Vygotsky gives a good example of how a tool can be used for something
other than what it is intended for. In his experiments, he’d give people cards with
pictures on them and then ask the individual to complete some type of memory
task. In one of his examples he uses a picture of a crab. Participants usually
select a picture that actually represents the item they are supposed to remember
— like if they are to remember a crab, they pick a picture of a crab. That is
unmediated memory in Vygotsky’s view — a rule-based intellectual activity rather
than a mediational one. He wasn't very interested in this simple association.
What Vygotsky was intrigued by was what happened when he gave the person
cards that didn’t correspond to what they were required to remember. In his
example, the crab card was used to remember something like “theater.” So what
happened was the research subject made up a story relating the crab to theater.
Vygotsky describes that the participant explained the crab was looking into the
ocean at some shells, which for the crab were as entertaining as watching

something in a theater. The research subject’s understanding of the crab came

278

out of a heuristic formed by the human subject and it was based on a story that
connected everything together — not a simple one-on-one association, but a
complex structure, a story. What Vygotsky didn’t talk about was the fact that the
crab, in his example, actually changed into a theater. When this participant
looked at the crab, he didn’t see a crab, he saw a theater. Likewise, I think when
my writers look at copyright law, they don’t see the law, they see something else:
their story of the law. Their stories were their “misunderstandings” of copyright
law.

Misunderstanding and confusion are productive. Among my interviewees,
the law wasn't really “the Iaw”; it was a story of the law that made sense to the
writer. “Actors incessantly engage in the most abstruse metaphysical
constructions by redefining all the elements of the world” (Latour, 2005, p. 51).
So for Rob, his understanding was that flickr.com images were always safe — he
thought he’d Ieamed this in school from a reliable source — and he operated with
that understanding even though he was probably not correct. Amanda thought
that if materials came from an educational source and had previously been used
to teach others, they were “fair use.” It’s clear the interviewees twisted and
shaped the law into something that made sense for them regardless of the “tmth”
of their understanding. So the law didn’t have as much agency as it might have
liked; it didn’t just pass through people uninterrupted and show up in their web
compositions. It shifted and changed due to the writers’ knowledge and
understanding, and based on that, had a presence or lack thereof in the final

webtext.

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The tools and rules dichotomy that Engestrom is so bent on, was not
emphasized by Vygotsky. But for fans of Latour, what Engestrom calls tools are
like what Latour calls mediators, and what Engestrom calls rules are like what
Latour calls intermediaries. lnterrnediaries are very rare — they are one thing or
even nothing because they can be easily forgotten, like the medical records in
Engestrom’s (1990) study. Copyright law in China and TRIPS (Agreement on
Trade Related Aspects of Intellectual Property) in Djibouti39 are forgotten by the
people. In China, copyright law is unable to produce anything to keep itself alive,
unable to circulate, unable to overcome existing networks that already serve the
author-function, that already organize meaning — and so in China, copyright law
is an intermediary. Mediators, in contrast, are plural, transforming, potentially
infinite. “They might be counted as one, for nothing, for several, or for infinity.
Their input is never a good predictor of their output; their specificity has to be
taken into account every time” (Latour, 2005, p. 39) — like US copyright law and
its mediational effect on my interviewees’ webtexts.

For the Kwakiutl Indians, un-mined copper was an intermediary, a rule.
But when they harvested the copper and shaped it into copperplates which
subsequently held and acquired their own agency separate from people, the
copper became a thing, a mediational thing. It became a tool. Human
competencies were folded into it. ANT permits the artifact perspective — and from
that perspective, copyright law can Ieam the same way amazon.com seems to
know which books I want to read next. Copyright law changes and takes different

forms for each of the writers in my study. Copyright law can also be inventional

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and metis-like. Of all the things, people, and entities in this study, I speculate
Title 17 may have been the most cunning, as it has been exceedingly inventive
and productive without exerting energy, and without anyone noticing. Below is
Figure 6.5 showing some things Title 17 might have associated “in a legal way”

due to its “circulation throughout the landscape” (Latour, 2005, p. 239).

Legal Associations Produced by Title 17

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

PW/JOURNALISM
SCHOOL COURSES
LEGISLATION
LAw SCHOOL IP
\ CONCENTRATIONS
COPYLEFT ACTIVISM \\
“USERS”
/ “INFRINGERS”

 

 

 

 

 

USC TITLE 17
'OWNERS" ”AUTHORS”
TERMS OF USE

 

 

 

 

 

 

 

 

 

 

 

 

/ \
”CENSES l \ JUDICIAL OPINIONS
CREATIVE COMMONS \
RESEARCHERS/STUDIES
KNOWLEDGE a.
UNDERSTANDING

 

 

 

 

 

 

FIGURE 6.5 Legal Associations Produced by Title 17

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Such possible networks would have to be explored. We cannot know the
legitimacy of their existence without further research. We should not assume.

But we do know that overall, copyright law is productive. On a copyright
Iistserve I participate in, along with artists, librarians, professors, and lawyers, in
the last five days 55 posts have circulated debating the merits of the Orphan
Works Act of 2008 currently under consideration. The concept of "orphan” works
might indicate the law becoming more ANT-like, and also growing into its
proximate self, in that it is trying to recognize what we already know - that things
people make can detach from their creators and take on meaning and power that
was never anticipated. The Orphan Works Act makes it easier for users to
appropriate texts, images, sounds, that have no “owner” — they have no creator
because their creator cannot be found. Such texts are construed as “orphans.”
The 55 posts remind me of the law’s productiveness - Title 17, and its revisions,
continue proliferating.

What would a theory of rhetorical invention for things and entities look
like? I think Grabill (2007b) gives us a start with his idea that institutions can be
metis friendly. I also think that diseases and viruses are “things” that have metis,
but like the plague, they exercise it without justice. If we think of entities and
things as being inventional and productive, all kinds of research trajectories open
up.40 Assembling the theories of Janice Lauer, Cynthia Haller, Carolyn Miller, Lev
Vygotsky, John Law, and Bruno Latour, a small start to a theory of rhetorical
invention for people, things, and entities might look like this: Rhetorical invention

is when people, firings, entities create heuristics formed of interlocking stories,

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stories about situations, and then use those stories as a basis to maintain, act
upon, resist, or transcend those situations.
Implications for Teaching, Learning, and Research

One thing I had asked in this study was whether or not the interviewees
were conducting legal reasoning in the same sense that attorneys, judges, law
professors do. I think they are, but I cannot really answer that completely
because I have no participants that were actually in the legal field to use for
comparison purposes. So if I wanted to really know the answer to this question,
I’d have to conduct another study. I do think the reasoning of my interviewees
call into question the real effect of what’s described as the “signature pedagogy”
of law school. I do want to point out the similarity between ANT’s idea of radical
symmetry, which for research purposes can provide a different kind of reasoning
then we in R8W are used to, and legal reasoning. Legal reasoning, and US laws
for that matter, employ their own kind of radical symmetry by using abstract
language which as Patricia Williams points out “flattens.” As she notes, this
flattening often erases the humans (as does ANT).

But it’s this same flat “mle of laW' that allows justice to be blind, orjustice
to exist at all. “A form of behavior or a human judgment can be termed just only if
it can be subjected to rules or criteria” (Perelman, 1967, p. 20). Without rules or
criteria we end up with something like the Royal Prerogative that decided the
award of patents in 17th century England. From a research perspective, I think
using ANT, like legal reasoning, has interesting possibilities for achieving a

certain kind of justice. The concept of justice is definitely grounded in equality.

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Chaim Perelman defines justice as seeking to treat beings in the same essential
category the same. Traditionally, what we argue about is what constitutes the
“same essential category" — should copyright law apply to students and teachers
in the same way it applies to those working in strictly for-profit environments?
Generally, in the US, the answer has been no — therefore, students and teachers,
while also “users” of others’ content, are not in the “same essential category” as
for-profit users. Therefore we don’t treat them the same under the law. Students
and teachers get more leeway. What ANT does, is change the justice argument
from one about what constitutes the “same essential category" to an argument
about which “beings" are allowed in the category. Instead of simply focusing in
people who are inventive, for example, it opens the “beings” concept out to
include people, things, and entities. Thus, using ANT, we can think about a
theory of invention that includes non-humans. We might Ieam something by
doing this. ANT seeks a sort of “justice” in research, the same way that the law
and legal reasoning seek justice for humans. ANT seeks equality for all the
actors, not just the humans.

Regarding implications for my heuristical, rhetoric and AT based model of
digital composing, it might inform our understanding of other cognitive models.
While I agree with Flower and Hayes (1980) that writers organize their “distinctive
thinking processes” during composing, and that writing processes have a
“hierarchical, highly embedded organization," I cannot agree that digital
composing is “goal directed” in the way Flower and Hayes assert, nor do I think

that writers “create their own goals . . . by generating both high-level goals and

284

supporting sub-goals . . (p. 274). In Chapter Five I already challenged our
understanding of authorship especially in digital environments, relying on
Foucault’s essay written decades ago. Based on the power of these heuristical
elements as well as the fact that the single author is an ideological production
representing the opposite of the functions that create him, in many respects the
goals for a piece of writing are selected by non-human texts, laws, concrete
systems of power, not the writer him or herself. My heuristic probably factors in
rhetorical principles more than does Flower and Hayes since it is constructed by
writers for the purpose of generating probable knowledge — the webspace as
remix and commonplace, is always contingent and scaffolded upon the
convergence of a number of probabilities. The “goals" as Flower and Hayes
describe them, for a single webtext can be multiple, transform over time, and can
derive from people, things, entitles outside the individual writers in my study.

If one of our goals as a field is to have the professional writers associated
with us, understand copyright law, we have a way to go. Engestrom points out
certain communal tools that might be part of a system (in my study, copyright
law), can lose or never acquire their status as communal tools when the activity
system has to change how it functions. As I explained in the authorship chapter,
digital writing surely changes the underpinnings of originality and authorship - all
of the recent discussions on plagiarism, copyright, and cross-cultural
communication derive in part from the activity system changing. Copyright law
has become more relevant, but isn’t fully functioning as a communal tool.

Engestrom suggests that when such a tool is communally constructed, it's more

285

likely to be used by the people in the system. Our copyright law is communally
constructed in the sense that it was created in a sort of democracy, and is
constantly re-evaluated through court opinion and the legislative process. But if
the people who actually created things supposedly governed by copyright law
had a more hands-on say in its construction, I think it would probably be
understood and used more. As it stands, my interviewees kind of ignored what
they didn’t understand, transformed the law itself, or transcended any of its
perceived limitations.

As for the pragmatic considerations of teaching and curriculum in
professional writing programs, it’s clear that the study participants would like to
know more about copyright law. Several interviewees wanted to know more in
general about laws that impact digital writing. Engestrom also points out that
systems can change if they become future oriented rather than simply looking at
past practices. I think if we imagine our students owning their own web design
businesses, doing independent consulting for non-profits, being lifelong job
seekers, becoming entrepreneurs in digital writing, — I think it might make a
curriculum that includes legal issues and digital writing more likely to occur. It
might be best to include curriculum that touches on things like negotiation, how to
write a contract, permissions, protecting people’s privacy, release forms, starting
your own business, and copyright-intellectual property issues. Such a curriculum
would also embrace Grabill’s (2007b) emphasis on planning as well as the

“anticipation” component of rhetorical velocity, a theory originated by Jim Ridolfo.

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ENDNOTES

 

1 Sarah, and all other “research participant” names are pseudonyms used to protect research
participant privacy.

2 In order to gather data, the researchers contacted teachers, media literacy curriculum
producers, and organizational leaders. While many of the participants worked in K-12, a number
of them were from universities. Interviews were conducted by phone and lasted about 45
minutes. According to the researchers, the interview questions were open-ended and explored
how teachers use copyrighted materials for education and asked teachers to describe how their
students use copyrighted materials in student-created coursework.

A unique aspect of the study was that all interviewees were named along with their area of
expertise and institutional affiliations - 62 participants are listed in the appendix, about 30% are
associated with teaching in K-12. Many of the participants were from the geographical regions
near Temple University (Pennsylvania), but some were from as far away as California. The
researchers did not describe their participant recruitment methods in the report except that they
did use membership lists of various organizations, including the Action Coalition for Media
Education, Alliance for a Media Literate America, The National Council of Teachers of English,
the Student Television network, the National Alliance for Media Arts and Culture, and the Youth
Media Reporter (p. 23).

The major finding of the study was that the key goals of teaching media literacy were
“compromised by unnecessary copyright restrictions and lack of understanding about copyright
law” (p. 1). Because of participants’ lack of knowledge and understanding about the law’s
protections, their ability to share, teach, and have students produce media-rich texts was severely
circumscribed. Not only that, but the researchers found that teachers’ lack of knowledge was
passed on to students as well as colleagues, perpetuating “copyright folklore” (p. 12) that often
characterized the law as much more restrictive than it is.

Additionally, the study offered the following findings:

0 During the last decade, copyright awareness has greatly increased among the
educational community.

. Teachers believe that the ability to access and use copyrighted materials is central to
educating citizens, and is a necessary component to maintaining a democracy. “More
than any other feature of copyright law, fair use recognized the core Speech values
enshrined in the first amendment“ (p. 6).

. Too many teachers are unaware of the expansive nature of fair use, and instead rely on
various “Guidelines” circulating on the web and adopted by some institutions. The
guidelines have varying histories, but are mainly products of the publishing industry.

. Teachers are confused about the differences between plagiarism and copyright, and talk

about the two interchangeably although they are separate doctrines (attribution is
irrelevant to the issue of “fair use”).

287

 

0 Teachers received their information from the media, their institutions, and lore. The
information they receive either negates fair use or casts it in a conservative light.

0 Many institutions have extremely restrictive policies about using copyrighted materials —
including how students' texts can be displayed. For example, some schools would only
let student multimedia pieces be displayed in individual classrooms rather than on
school-wide media display systems. Such policies fail to recognize fair use as a
legitimate part of US law.

0 Gaining permission from copyright holders for educational use was not “an option among
interviewees“ (p. 10). Either the permission was not granted, or the fee requested was
unreasonable in the context.

. Teachers’ lack of understanding (characterized as “cognitive dissonance” by the
researchers), caused them to develop three coping mechanisms: 1) studied ignorance; 2)
quiet transgression; 3) hyper-compliance (p. 14).

“Studied ignorance” was defined by the researchers as the “what I don’t know can’t hurt me”
attitude. Teachers believed that if they stayed ignorant of the laws, they didn’t need to worry or
comply. “Quiet transgression” described teachers’ willingness to do what they considered illegal
with the hopes that they were unlikely to get caught. “Hyper-compliance” was defined as teachers
who created blanket prohibitions in the area of student work especially — such as not permitting
students to use any copyrighted materials in their own coursework.

The “costs” of this confusion, according to the report, are less effective teaching materials,
constriction of creativity for teachers and students, and the perpetuation of misinformation.
Recommendations included developing a code of practice or a statement of fair use practices to
assist the educational community. As an example, the authors refer to the recently developed
Documentary Filmmakers’ Statement of Best Practices in Fair Use which have been negotiated
with the Cost of Copyright Confusion co-authors along with documentary filmmaker organizations.
Apparently, the Statement had an immediate effect. “Filmmakers themselves, commercial
networks, and the Public Broadcasting System all refer to it on a regular basis . . . it has permitted
filmmakers to portray reality as they see it without compromise” (p. 23).

3 Marjorie Heins and Tricia Beckles’ (2005) study culminated in a handy 67 page pamphlet
obtainable at no charge from the Brennan Center for Justice. The purpose of the study was to
Ieam how fair use and the understanding of same, were being used by artists and scholars. The
main research question was: How well are fair use and other free expression safeguards in
intellectual property law working to protect speech? The methodology used is as follows. First of
all, the researchers openly state: “Our research was not strictly 'scientific’”(p. 8). Therefore, to
some readers the findings might be considered anecdotal. Data was collected through multiple
means including focus groups, telephone calls, an online survey, and analysis of over 300 cease
and desist letters. Four focus groups were conducted. Groups were chosen for focus groups
because of their stake in fair use issues (Women Make Movies, College Art Association, Location
One Gallery). The groups were moderated and contained 7-12 individuals who discussed their
experiences grappling with fair use and cease and desist letters. The next step was to examine
cease and desist letters deposited with the Chilling Effects web site during the 2004 calendar
year. (Chilling Effects is in favor of fair use and has a political agenda; therefore, cease and desist
letters posted there might tend to be from the particular audience that visits and supports
Chilling). From those letters, the Chilling Effects administrators were asked to contact persons
who deposited the letters, if those persons had left contact information. This is how the telephone
interviews were solicited. Seventeen people were interviewed this way. The last step was the web
survey which was provided on a web site. Arts organizations were asked to publicize it. From this,

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about 290 completed surveys were gathered. The surveys asked about attitudes and experiences
with copyright and fair use (I contacted Marjorie Heins and she sent me a copy of the online
survey). The survey asks mainly for essay type responses to various prompts.

The Heins and Beckles (2005) report is valuable because it contains a very intense and
condensed discussion of some major fair use cases. Visuals are included as well. The general
findings were as follows:

. Among artists and scholars fair use is known and sometimes relied on. Levels of
understanding vary, with significant amounts of misunderstanding. Misunderstanding led
to chilled speech.

0 Prevailing practices in industry have a large influence on whether fair use can be
leveraged. If an industry requires permission (the film world, for example), then fair use
will be of no consequence. For “students, Web activists, and artists“ who frequently
appropriate materials, fair use is often exercised.

. Based on percentages of the total amount of cease and desist letters sent each year,
substantial numbers of these letters contain weak claims.

0 Many recipients of cease and desist letters who refuse to acquiesce are not sued. Non-
acquiescence is alive and well. In contrast, many acquiesce out of fear even though
claims in cease and desist letters are weak.

. Pursuant to the needs as expressed in the study findings, Heins and Beckles are crafting
a web resource (See Fair use network).

‘ Renner (2002) and Sweeney (2004) dissertation studies were produced by PhD candidates in
programs of education rather than rhetoric, writing, or professional communication. In her
dissertation, “An analysis of the knowledge levels of Ohio's post-secondary educators in
public/state, private and two-year colleges and universities regarding copyright ownership of
Web-basedlonline courses and materials,” Jasmine Renner, Ed.D, (2002) examined knowledge
levels of post-secondary educators in Ohio on copyright and copyright related issues. In her
study, 62 educators who taught web/based courses from a variety of public and private
institutions, including two-year colleges, participated. Two instruments were used to measure
knowledge: a copyright questionnaire that analyzed knowledge of educators on copyright law,
and a follow-up survey that measured educators’ knowledge about copyright policies at their own
institutions. The study also used legal research to collect and analyze appropriate laws. The
results found that educators had some knowledge of copyright but were mainly “unstudied.”
Educators teaching graduate courses as opposed to undergraduate or professional courses
scored significantly lower. Those who were aware and knowledgeable about their institution’s
copyright policy scored significantly higher. The study argues that institutions should provide on-
going copyright education and materials to educators.

In Phyllis Sweeney, Ph.D’s dissertation, “What faculty know about designing online materials in
compliance with current United States copyright and fair use laws,“ (2004) the researcher
examined resources used by faculty to develop online courses plus faculty levels of knowledge
and methods for gaining knowledge on fair use as it pertains to constructing online courses.
Methodology included quantitative methods of posting an online survey to the web, and
qualitative methods incorporating online focus groups via Blackboard. The author was interested
in these issues because of the rush to create online courses — but the simultaneous lack of
training for faculty with respect to fair use and using materials to construct online courses. The
findings indicated that very few faculty were aware of the copyright and fair use policies of the
institution studied. Quantitatively, very few faculty were informed about copyright issues;
qualitatively “lack of training, a desire to comply, and urgency in designing online course materials
in time for the start of a new semester” were major factors that influenced decision making
regarding online content. While both of these studies inform my inquiry, neither examined the
mediational qualities of fair use in a professional writing program among writing specialists, and

289

 

neither used discourse-based interviews in order to explore tacit knowledge informing writing
practices. In fact, neither of these dissertations were centered around writing processes, as is my
study. These dissertation findings support the findings of my pilot study, generally, that copyright
issues are on the minds of educators. However, none of the studies focus on tacit knowledge, or
laws as mediational understandings influencing writing processes.

5 More detailed findings from “The digital Ieaming challenge” include:

0 While a great deal of fear exists, “In many situations, the availability of a fair use defense
for a certain use is completely clear and the likelihood of litigation - or even a dispute
with a rightsholder - is infinitesimal“ (p. 85).

0 “According to several . . . [interviews] publishers are now threatening litigation and
entering into private negotiations to seek restrictions of a similar scope on digital uses of
content at universities” (p.87).

0 “Workshop participants and others interviewed . . . were aware of recent litigation threats
by legal representatives of publishers against several large research universities“ (p.53).

0 Fair use guidelines that “shrink the scope of fair use and greatly limit the doctrine’s
flexibility“ (p.56) have been adopted by 80% of American universities (p. 57).

o “A report by the American Intellectual Property Law Association estimates that the
average cost to defend a copyright case is just under one million dollars” (p. 57).

o “The near-total absence of lawsuits against educators may suggest that rightsholders
have tacitly accepted that the appropriate construction of the fair use doctrine leaves
significant room for educational uses of content, or that they fear a negative public
reaction if they sue educators” (p.53).

0 “There are virtually no precedents in which educators themselves were defendants . . ."
(p. 60).

o The good faith fair use defense available for employees of nonprofit educational
institutions as stated in section 504(c) has never arisen in a reported opinion (p. 60).

The Berkman white paper also offers possible solutions to some of these controversies, such as
an interactive web resource that allows complicated fair use determinations based on data input
by users.

6 The methodology of this study was as follows. In October and November 2004, 1,100 telephone
interviews were conducted with a nationally representative US sample of teens ages 12-17 and
their parents. The telephone interviews measured attitudes and not the “whys.“ Statistical results
of the interviews were weighted to correct known demographic discrepancies. The margin of
sampling error for the complete set of weighted data is 13.3%. Using an incentive of two movie
passes to a local theater, 38 high school and middle school students were placed into four focus
groups. Prior to focus group participation, a short online survey was administered. Nine teens
took the online survey that included open ended and multiple choice questions. Statistical data
was not collected on the survey responses, although some of that information was used in the
report. Since the snowball method was used, the information gathered is not reliable from that
portion of the study (p. 18). The report provides detailed explanations of how the telephone
interviews were conducted.

7 I must say here that I did not clearly understand the author this way until after I completed my
study - I tell you this simply to state that I will revisit the issue of authorship more fully in Chapters
Five and Six.

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8 This was the gist of Sid Dobrin’s recent talk at MSU, spring 2008, as well as his 2008 CCCC’s
presentation.

9 Janice Lauer (1970) privileges invention as well: “Most teachers know that rhetoric has always
lost life and respect to the degree that invention has not had a significant and meaningful role” (p.
396).

1° To illustrate an extreme case of how legal language flattens complexity, and erases moral and

ethical considerations, Williams offers this example language, taken from an 1835 Louisiana

decision on the issue of defective “merchandise":
The plaintiff alleged that he purchased of the defendant a slave named Kate, for
which he paid $500, and in two or three days after it was discovered the slave
was crazy, and run away, and that the vices were known to the defendant . . . It
was contended [by the seller] that Kate was not crazy but only stupid, and
stupidity is not madness; but on the contrary, an apparent defect, against which
the defendant did not warrant . . . The code has declared, that a sale may be
avoided on account of any vice or defect, which renders the thing either
absolutely useless, or its use so inconvenient and imperfect, that it must be
supposed the buyer would not have purchased with a knowledge of the vice. We
are satisfied that the slave in question was wholly, and perhaps worse than,
useless. (p. 3)

1' See however Flower and Hayes, 2003; Odell, Goswami and Herrington, 1983; Perl, 2003, for a
few research models involving what might be characterized as the inventional part of writing
processes; See Geisler and Slattery, 2007 and Hart-Davidson, 2007 for recent examples of how
one might use activity theory to research writing processes.

‘2 Glick (1997) comments on the continuing confusion about how we should receive Vygotsky’s

work:
How is Vygotsky to be understood? As a hidden treasure who can now be
revealed to the world? As an historical figure; part icon, part relic? As the
construction of an historical figure used for contemporary purposes to
ventriloquate contemporary arguments? As a lost contemporary, speaking to us
across time? There is no exclusively correct choice among these alternatives, he
is all of these. (p. v)

‘3 He did this through his writings as well as through his work in the Laboratory for Comparative
Human Cognition at the University of California, San Diego.

1‘ Walter Ong (1988) argues writing itself is a technology.

‘5 Vygotsky (1978) examined what he called internalization by giving children and adults memory
tasks to complete. For example he would use signs like a packet of colored cards, and tell the
participant he would be asking a series of questions. The questions were to be answered under
certain conditions — perhaps the participant should never repeat a color nor use the names of
certain colors. He then observed as participants figured out ways that they could use the wrds to
strategize remembering which colors they had already named and which colors they were not
supposed to use for an answer. He found that adults would usually refuse to complete these

291

 

memory tasks until they had mastered the “system of relations as a whole” (p. 71) between the
signs that were associated with the task. On the other hand, very young children would set off
immediately, having heard the instructions once, and try to complete the memory task. They
would of course be unable to do so, and would start asking questions about each individual
stimulus, treating each one as if it operated under individual rules. Vygotsky posited that this
demonstrated a less developed level of psychological processes since the young child was
relying solely on “unmediated memory" (p. 70).

After continuing the experiment long enough, the children began to see the relationships between
stimuli, and eventually came to an understanding of the system of relations as a whole. After time
had passed, the children no longer needed external stimuli (colored cards in my example) in
order to complete memory tasks. “In its most developed form, this internal operation consists of
the child grasping the very structure of the process, learning to understand the laws according to
which external signs must be used. When this stage is reached, the children will say, ‘I don’t need
pictures anymore, I’ll do it myself“ (p. 72).

‘6 Vygotsky does not talk about “invention.” He talks about “development.”

‘7 While the STC and ATTW membership lists were supposed to be for technical/professional
writing “programs,” in several instances, someone had uploaded their institution’s single class as
a “program.” It did not appear that the membership lists were centrally reviewed or edited. The
STC list especially was totally user-created and unedited.

‘8 The concept of tacit knowledge derives originally from the work of Polanyi (1962).

‘9 “The [mixed methods] researcher bases the inquiry on the assumption that collecting diverse
types of data best provides an understanding of a research problem. The study begins with a
broad survey in order to generalize results to a population and then focuses, in a second phase,
on detailed qualitative, open-ended interviews, to collect detailed views from participants“
(Creswell, 2003, p. 21).

2° Also note that “the ideas of pragmatism have common features with activity theory” (Engestrom
8. Miettinen, 1999, p. 6).

2‘ John Law (2003) might describe what I’ve done as overcoming the resistance of
“heterogeneous materials“ and placing them into ordered networks (p. 2).

22 There might be a different answer if one takes a judicial opinion from Lexis Nexis or Westlaw
where the opinion has elaborate footnotes, headnotes, or annotations. In that case, the waters
become a bit murkier when considering authorship.

23 The next few paragraphs are taken in part from: Rife, M.C. (2008b, Jan.). The “shock and awe”
of digital research design: Rhetorical strategies as mediational means in digital survey research.
Conference proceedings paper forthcoming with lEEE-IPCC.

292

 

2‘ Roe v. Wade is a great example of a case where the court had to carefully balance the
interests of the individual with the interests of the state.

25 The exclusionary practices in US policy might be something like the anti-immigration stance.

26 Another connection with Foucault and ANT is here as Foucault (1972) calls a book a “node
within a network” (p. 23).

27 I am going to talk about Rob’s interview and its contextualization of India in the most general
fashion. I am not an expert on India nor its religious backgrounds. For purposes of providing the
reader an example of how the use of scriptures might function in a culture, I am letting Rob, for
these limited purposes, represent “India.“ Rob talked about the “word of God“ in the singular, and
I am letting Rob have all the agency in this discussion of religion, India, and authorship. I think
further work exploring authorship and copyright in India is much needed and would be very timely

considering India’s economic rise in the world. I would love to see research and writing in this
area.

It wasn’t until reviewing the interview data that I knew what “Vedas“ were. And still my knowledge
is only the most limited. According to wikipedia:

The Vedas (Sanskrit, Veda, "knowledge") are a large corpus of texts originating in
Ancient India. They form the oldest layer of Sanskrit literature and the oldest
sacred texts of Hinduism.

According to Hindu tradition, the Vedas are apauruseya "not of human agency”,
being supposed to have been directly revealed, and thus are called sruti ("what is
heard").Vedic mantras are recited at Hindu prayers, religious functions and other
auspicious occasions.

The Sanskrit word véda "knowledge, wisdom" is derived from the root vid- "to
know". This is reconstructed as being derived from the Proto-Indo-European root
*LLeid-, meaning ”see" or ”know”.

The Vedas are arguably the oldest sacred texts that are still used.

28 The most some of us can hope for is remission from our culture as is the best one can do with
some diseases.

29 I realize some might find the term “prehistoric“ charged with meaning. However, I am using this
term because this is the term used by the anthropologist. While some might interpret me as
placing a value judgment on a society due to my use of the term, instead I am simply using it out
of respect for Spielmann, and in my mind it means “before the massive use of prose to record a
multitude of histories.“ In anthropology, it probably has a specific meaning and since I am not an
anthropologist I would like to preserve that meaning for now.

3° Boas wrote:
Still more complicated is the purchase or the gift, however one chooses to term
it, of a “copper.“ All along the North Pacific coast, from Yakutat to Comox,
curiously shaped copper plates are in use, which in olden times were made of

293

 

native capper, which is found in Alaska and probably also on Nass river, but
which nowadays are worked out of imported copper. The typical shape of these
copper plates may be seen in figs. 2 and 3 and Plate 4. The T-shaped part
(qala’s), which forms two ridges, is hammered. The top is called “the face”
(o’nuxleme), the lower part the hind end (o’nutsexste). The front of the copper is
covered with black lead, in which a face, representing the crest animal of the
owner, is graven. These coppers have the same function which bank notes of
high denominations have with us. The actual value of the piece of copper is
small, but it is made to represent a large number of blankets and can always be
sold for blankets. The value is not arbitrarily set, but depends upon the amount of
property given away in the festival at which the copper is sold. On the whole, the
oftener a copper is sold the higher its value, as every new buyer tries to invest
more blankets in it. Therefore the purchase of a copper also brings distinction,
because it proves that the buyer is able to bring together a vast amount of
property.

Each copper has a name of its own, and from the following list of coppers, which
were in fort Rupert in 1893, the values attached to some of them may be seen.
(9. 344)

3‘ This idea of connecting page rank to ethos is Michael Wojcik’s. I saw him present it at
Computers & Writing, 2008, in Athens, Georgia.

32 Their declaration appeared as such:

We whose Names are under-written, do assure the World, that the Poems
specified in the following Page, were (as we verily believe) written by Phillis, a
young Negro Girl, who was but a few Years since, brought an uncultivated
barbarian from African, and has ever since been, and now is, under the
Disadvantage of serving as a Slave in a Family in this Town. She has been
examined by some of the best Judges, and is thought qualified to write them.
(Gates, 2003, p. 3)

33 I could also have pictured a group of blue-eyed, blonde haired Paris Hilton Iook-alikes -I
acknowledge the sameness and difference in attire originates from a certain gaze. A colleague
who studies in Jewish history and culture reviewed this chapter and caused me to switch out my
original image of Hasidic Jewish men. I had selected a picture that was common knowledge
among Jewish scholars to depict something politically charged. I wanted to avoid that. But
because I lacked the same common knowledge as my colleague, l was unaware of the possible
faux pas I was about to make by including the wrong picture - by essentializing. One of the
dangers of ANT, is that when you make things radically symmetrical, when you flatten things as
Patricia Williams’ says, you in effect must essentialize many experiences and differences into one
thing. But it is just a research stance, not a stance for living.

34 I realize the word “forces" here might seem strange. Neither Vygotsky nor the ANT theorists
write about mediational means as having force or power. I will try to make a small start to
addressing this in the next chapter.

294

 

35 Kenneth Bruffee (1984) conceptualizes this internalization as one of an externalized
conversation that then re-externalizes itself in the written product. So you could map Bruffee onto
Foucault and say that as power flows through an individual, one of its products might be writing.

36 l have to credit Donnie Johnson Sackey, a graduate student, for sharing his ideas with me
about metis.

37 If you want to read the whole story the version I read is in Homer (1996).

38 You actually might find a circle here because attorney's brief’s rely on precedent, which comes
from previous judicial opinions. Judicial opinions in turn come in part from attorney's briefs.

One thing I’ve looked at previously is the presence of international influence in Canadian versus
US supreme court opinions. Instead of looking at “international influence“ — it might be interesting
to take a key US supreme court opinion and then trace its sources backwards to see the agency
of other writings. That would call into question who is really authoring the opinion. For example, in
the recent Guantanamo Bay opinion, Boumedienne et al. v. Bush, the majority went back to
English common law to find a solution to the problem before it — the question of whether to
restore habeas corpus rights to enemy combatants detained at Guantanamo. But the networks
that actually formed the opinion are very complicated and multiple just based solely on the text.

39 Emile Cloatre (2008) of the University of Nottingham, UK has just published a study using ANT
to examine patent law in Djibouti.

4° Like I have recently thought that community colleges are actually products (or associations) of
doctoral universities. But most people think of them as deriving from high school and so they
always look to high schools for their origin stories. Using ANT, one could interview the actors, like
the teachers, the students (average age of 28), at community colleges and see where they came
from — I expect one might be able to trace a line to the doctoral university. The originator of a
product matters to those of us who think good citizens should take responsibility for their
productions.

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APPENDIX 1.1

§ 102. Subject matter of copyright: In general

(a) Copyright protection subsists, in accordance with this title, in original works of
authorship fixed in any tangible medium of expression, now known or later developed,
from which they can be perceived, reproduced, or otherwise communicated, either

directly or with the aid of a machine or device. Works of authorship include the following
categories:

( 1 ) literary works;

(2) musical works, including any accompanying words;

(3) dramatic works, including any accompanying music;

(4) pantomimes and choreographic works;

(5) pictorial, graphic, and sculptural works;

(6) motion pictures and other audiovisual works;

(7) sound recordings; and

(8) architectural works.

(b) In no case does copyright protection for an original work of authorship extend to any
idea, procedure, process, system, method of operation, concept, principle, or discovery,

regardless of the form in which it is described, explained, illustrated, or embodied in such
work.

296

§ 106. Exclusive rights in copyrighted works

Subject to sections 107 through 122, the owner of copyright under this title has the
exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or
other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and
motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and
pictorial, graphic, or sculptural works, including the individual images of a motion
picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means
of a digital audio transmission.

297

§ 107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted
work, including such use by reproduction in copies or phonorecords or by any other
means specified by that section, for purposes such as criticism, comment, news reporting,
teaching (including multiple copies for classroom use), scholarship, or research, is not an
infringement of copyright. In determining whether the use made of a work in any
particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a commercial
nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work
as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding
is made upon consideration of all the above factors.

298

APPENDIX 3.1

Student Interview Recruiting Email

Digital Composing and Fair Use: Knowledge and Understanding in a
Technical/Professional

Writing Program

IRB# / APP# i023983

Dear

I am conducting a research project supported in part by the WIDE Research
Center at Michigan State University. My name is Martine Courant Rife and I am a
PhD Candidate in the Rheton'c & Writing Program at Michigan State University.
Earlier this year you took an online survey titled “Is there a chilling of digital
communication?” that asked about your knowledge and understanding of

fair use and copyright. In the survey, you supplied contact information and
indicated you’d be willing to be interviewed.

I am now conducting the interviews. The interview will be about 30 minute long,
and will ask about the same issues as the survey, but with reference to a web
composition or web page that you’ve recently created. I will need you to supply
me with a copy of that web composition (a URL for example) at some point after
the consent form is returned.

Depending on your location, I will conduct the interview by telephone, or set up a
time to meet with you for 30 minutes, at your convenience and at a location
convenient to you. You can also let me know if you’d rather do an in-person or
telephone interview. Either way, I need to audio-record the interview.

If you are willing to participate in the interview, at all times I will keep your
responses private and confidential. I will keep your identity private with respect to
the interview and the webpage. It is completely up to you whether you want to
participate or not - participation is voluntary. Your participation will not affect your
grades. You will receive no course credit for participating. And, if you participate,
you may withdrawal from the study at any time.

If you are willing to participate in the interview, please reply to this email and let
me know. I will then send you the consent form and we can go over that. If you
agree to be interviewed, it will greatly benefit the research project.

Thank you for your time
-Martine Courant Rife

299

APPENDIX 3.2

Institutions with confirmed participation (usually just one to four people
from most institutions; N=64)
Arizona State University

Arizona State University East

Austin Peay State University

Ball State University

Baylor University

Boise State University

Briar Cliff

Clarkson University

Clemson University

Coe College

Eastern Michigan University

Edison Community College

Georgia Institute of Technology
George Mason University

Grand Valley, Ml

Hilbert College

Illinois Institute of Technology
Illinois State University

Iowa State University

Ithaca College

Kutztown University of Pennsylvania
Louisiana Tech University

Lebanon Valley College
Massachusetts Institute of Technology
Mercer University

Miami University

Michigan State University

Milliken University

Minnesota State University, Mankato
Missouri State University

Missouri Western State University
Murray State University

Montana Tech of the University of Montana
Nazareth College of Rochester

New Jersey Institute of Technology
New Mexico State University

North Carolina State University
Oklahoma State University

Penn State University

Purdue University

300

Rensselaer Polytechnic Institute

Rocky Mountain College of Art and Design
San Francisco State University

San Jose State University

Southern Polytechnic State University
Texas State University

University of Arkansas at Little Rock
University of Baltimore

University of Central Florida

University of Cincinnati

University of Hartford

University of Illinois

University of Massachusetts

University of Massachusetts—Dartmouth
University of Minnesota

University of New Mexico

University of North Carolina Wilmington
University of Pittsburgh

University of Texas at San Antonio
University of Wisconsin-Milwaukee
University of Washington

University of Wisconsin

Utah State University

Washington State University

301

APPENDIX 3.3

COVER PAGE

Welcome to: IS THERE A CHLLING OF DIGITAL COMMUNICATION? ....... click
next to start the survey.

SECTION A: Informed Consent Agreement

Welcome! You have been randomly selected to participate in this survey which
hopes to generate important field knowledge on issues of copyright and digital
composing. Your contribution is extremely valuable.

SURVEY CONSENT FORM

Researchers at the WIDE Research Center at Michigan State University want
your help with a survey on the topic of fair use/copyright and digital composing.
We would like to gain a better understanding of how understanding of fair
use/copyright interacts with digital composing. Even if you think you know little
about fair use/copyright, we still need your input.

Participation in this survey is voluntary. The survey takes approximately 20
minutes to complete. The current survey consists of questions about knowledge,
understanding, and attitudes on copyright and fair use. You may take the survey
once. Your participation is strictly voluntary. You may refuse to participate or
discontinue participation at any time without penalty. You’re welcome to contact
Martine Courant Rife, information on next page, at any time if you have questions
about the survey. You may also contact the MSU IRB Office, information on next
page, with your questions about research participants’ rights. If you decide to
complete the survey, your feedback will give us valuable information.

The survey is confidential. Any and all information we receive will be kept strictly
confidential. If you wish to remain anonymous throughout the survey you may do
so, and your answers will still be extremely valuable to us. Data gathered from
the survey will be summarized in the aggregate, excluding all references to any
individual responses. The aggregated results of our analysis will be shared with
the technical and professional writing community and others interested in
providing services to educate people about fair use. In the event analysis on
individual responses is completed, pseudonyms will be assigned to describe
participants.

At the end of the survey student-participants are asked if they'd be willing to
participate in a face-to-face or telephone interview. Please note that if you do not
indicate that you are willing to do an interview that the survey is anonymous;
However if you do elect to participate in the interview by supplying your contact
information, we will know your identity. But, we will keep your identity
confidenfiaL

302

' Your answers on this survey are not necessarily relevant to selecting
interviewees, and overall we will select very few individuals for interviews. If you
are selected, we will contact you by email in about 6 - 8 weeks. Again, you can
stop participating at any time. Those who are selected for interviews and agree
will go through a second consent process. Again, if you have questions please
feel free to contact us.

You will not be compensated in any way, nor will you receive any course credit.
Thank you for taking the time to help us with this important project.

By taking this survey, you have agreed to the terms above.

SECTION B: Questions or Concerns?

If you have any questions about the study, feel free to contact Martine Courant
Rife, Rhetoric & Writing Program; WIDE Research Center, Michigan State
University. Office: Suite 7 Olds Hall; Cell phone: 517-2940895;

E-mail: courantm@msu.edu.

Martine will be happy to answer any questions you may have about this study
and/or your participation in it. Please feel free to ask questions or express any
concerns you may have at any time. Please keep the contact information
provided on this page on hand for this purpose.

If you have any questions or concerns regarding your rights as a study
participant, or are dissatisfied at any time with any aspect of this study, you may
contact -anonymously, if you wish -Peter Vasilenko, Ph.D., Director of Human
Research Protections, 517-355-2180, fax 517-432-4503, e-mail irb@msu.edu,
mail: 202 Olds Hall, Michigan State University, East Lansing, MI 48824—1047.

CLICK “I AGREE” to start survey.

Do You Agree?

I AGREE

NO I DO NOT AGREE

SECTION C: Digital Writing

The survey consists of 28 short questions. The survey examines your
knowledge, understanding, and attitudes about fair use/copyright and whether
the law may have influenced your writing. Please select the best answer.
These first 4 questions ask for information about digital writing. (NOTE: If you

answer no to either of the first 2 question, we thank you but do not need to collect
further data. Thanks!)

303

1. Have you ever completed a web composition such as a web page, web space,
wiki, blog, page on facebook/myspace or other social networking software
application?

Yes

No

SECTION C (cont): Digital Writing

2. Has the web composition been posted to the web such that it’s available to at
least some people (other than yourself or your teacher) with intemet access
and a computer?

Yes

No

SECTION C (cont): Digital Writing

In general, would you say that people should obey the law without exception,
or are there exceptional occasions on which people should follow their
consciences even if it means breaking the law?

Can’t answer.

Follow consciences even if break law.

Should obey without exception.

4. Please pick the choice that best describes your “highest“ educational level:
Undergraduate Student

Masters Student

PhD Student

Undergraduate Degree/Certificate Holder

Graduate/Professional Degree Holder

Other/Can't Answer

SECTION D: How Chilled Is Your Speech?
The next 6 questions measure how law may have impacted your digital speech

(how chilled is your speech). All answered yes, no, or can’t answer. Please pick
the best answer

1. Have you ever been asked to take down something (text, audio, image) you
had posted to the web by a copyright holder or alleged copyright holder
because the text, audio, image, etc., was allegwa infringing on the owner's
copyrights (for example, via a communication by way of a take down notice or a
cease and desist letter, or even an email)?

Can’t answer

No

Yes

2. If so, have you ever actually taken down such material because of this

request?
No

304

Yes
Can't Answer

3. Have you ever voluntarily taken something down, on your own initiative,
which you had posted to the web because you felt you might be subject to
copyright liability even though you never actually received a request to do so?

copyright liability even though you never actually received a request to do so?
Yes

Can‘t Answer
No

4. Have you ever not posted something to a web composition you were creating
because of fear of copyright liability?

Can't Answer

No

Yes

5. Have you ever felt that the purpose or message of a web composition you
were creating would be better, clearer, or more aesthetically pleasing to the
audience if you could use others’ copyrighted materials without fear of legal
liability?

Can't Answer

No

Yes

6. Have you ever felt that you weren’t really able to say what you wanted in a
web composition because you were afraid if you said it the way you wanted,
someone might sue you for copyright infringement?

Can't Answer

Yes

No

SECTION E: Knowledge and Understanding

The next 14 questions measure your knowledge and understanding of fair use.
Each question has two parts — one that asks for a substantive answer, and one
that asks for your attitude/confidence level towards that answer. Please choose
the *best“ answer.

Please calculate your answers based on current US law.

1. Even though you have no permission, as long as you use less than three
minutes of a legally obtained song, it is certainly fair use.

True

False

How sure are you that your answer is correct?

305

Very certain
Somewhat certain
Undecided/Can't
Not too certain
Not certain at all

SECTION E (cont.): Next. . .

2. Using someone’s “creative” work (i.e. fiction, drama, poetry, art, artistic
designs, music) without their permission, is just as likely to be a fair use as is
using their “factual” work (i.e. non-fiction, unaltered photographic
representations, news items) without permission.

True

False

How sure are you that your answer is correct?
Very certain

Somewhat certain

Undecided/Can't

Not too certain

Not certain at all

SECTION E (cont.): Next. . .

3. If, without permission, you use someone else’s copyrighted material in order
to create a political parody, or othenrvise conduct political commentary/criticism,
it is more likely to be a fair use than if you were using the same material for
simple decorative purposes.

True

False

How sure are you that your answer is correct?
Very certain

Somewhat certain

Undecided/Can't

Not too certain

Not certain at all

SECTION E (cont.): Next. . .

4. The owner of a copyrighted novel has failed to make this novel into a play.
You decide to do so without the copyright holder's permission. Your derivative
work, the play, closely follows the plot and characters in the novel, but is likely
to be a fair use because it is different than a novel.

True

False

How sure are you that your answer is correct?
Very certain

306

Somewhat certain
Undecided/Can't
Not too certain
Not certain at all

SECTION E (cont.): Only 10 more questions in this section.

5. Let’s say you decide to, without permission, use a very small amount of a
copyrighted work, incorporating it into your own web composition. The original
copyrighted work is a text of 200,000 words. You use 50 words, but, the 50
words you decide to use are key, and the very best and most financially valuable
part of the original copyrighted work. In fact, the other 199,950 words are
unanimously considered useless, mundane, and trite. Even so, since your use is
so small, it is certainly a fair use.

True

False

How sure are you that your answer is correct?
Very certain

Somewhat certain

Undecided/Can't

Not too certain

Not certain at all

SECTION E (cont.): Next . . .

6. In the event you have no permissions, using someone else’s unpublished
work is more likely to be a fair use than using someone’s published work.
True

False

How sure are you that your answer is correct?
Very certain

Somewhat certain

Undecided/Can't

Not too certain

Not certain at all

SECTION E (cont.): Next. . .

7. Without the copyright holders’ permissions, you copy five copyrighted, freely
available web-published images from five different authors. You mix these five
images together, cropping them, and substantially changing their overall
appearances such that they are totally unrecognizable from their original forms.
You then blend in five of your own original images plus some original text you’ve
written, creating a collage that is politically informative on an extremely urgent
topic in current events. You publish your collage on your website for the intemet
world to have free access to for educational and political purposes. In this kind

307

of situation, your use of the five images you started with is probably a fair use
even though you did not obtain permissions from the copyright holders of those
first five images.

True

False

How sure are you that your answer is correct?
Very certain

Somewhat certain

Undecided/Can't

Not too certain

Not certain at all

SECTION E (cont.): Next . . .

8. If you ask a copyright holder for permission to use their material in your own
original web composition, and they say no, this means you absolutely cannot use
the copyright holder’s material under fair use.

True

False

How sure are you that your answer is correct?
Very certain

Somewhat certain

Undecided/Can't

Not too certain

Not certain at all

SECTION E (cont.): Next . . .

9. The single most important thing US courts look at when deciding whether or
not a particular use is a fair use, is whether or not the original author has been
attributed and/or credited.

True

False

How sure are you that your answer is correct?
Very certain

Somewhat certain

Undecided/Can't

Not too certain

Not certain at all

SECTION E (cont.): Only 5 more questions left In this section.

10. If you use something with a Creative Commons license, it means you
automatically get fair use.

True

False

308

How sure are you that your answer is correct?
Very certain

Somewhat certain

Undecided/Can't

Not too certain

Not certain at all

SECTION E (cont.): Next. . .

11. Mary, a law abiding citizen, is using a large chunk of text (1 ,000 words) in
her webpage. The sole copyright holder of this text is her friend Tim. Tim's
given her express written permission to use this text in her webpage. Even so,
as a conscientious, law abiding citizen, Mary should still make sure she is within
fair use when using Tim's text in her webpage.

True

False

How sure are you that your answer is correct?
Very certain

Somewhat certain

Undecided/Can't

Not too certain

Not certain at all

SECTION E (cont.): Next . . .

12. When you were 2 years old you drew an original crayola drawing from your
imagination. You’ve saved it all these years. Unbeknownst to you, your friend
steals this from you, scans it, and posts it on her webpage as part of the design.
You have no right to ask her to take this down based on copyright laws,
because such drawings are not copyright protected in the US anyway.

True

False

How sure are you that your answer is correct?
Very certain

Somewhat certain

Undecided/Can't

Not too certain

Not certain at all

SECTION E (cont.): Next . . .

13. Kim, a law abiding citizen, does a search on the Creative Commons website
for an image that allows her to use it as long as she attributes the original
author and uses for educational use. Kim decides to use this image for a 100%
educational use. She clearly and prominently attributes the original author.

309

Nonetheless, as a conscientious and law abiding citizen, Kim should still carefully
make a determination on whether she is within fair use.

True

False

How sure are you that your answer is correct?
Very certain

Somewhat certain

Undecided/Can't

Not too certain

Not certain at all

SECTION E (cont.): Next . . .
Please remember to chose the “best“ answer.

14. Mary, a law abiding citizen, decides to use five pages of a seven page ninth
circuit court decision in her website. She legally obtains this unedited opinion
directly from the court’s website. She wants to cut and paste all five pages
directly onto the html page she is composing. She will not edit or comment on
the court opinion, nor does her webpage allow commenting by others. Before
using the text in her website, as a conscientious, law abiding person she should
be sure she is within fair use.

True

False

How sure are you that your answer is correct?
Very certain

Somewhat certain

Undecided/Can't

Not too certain

Not certain at all

SECTION F: Last Fourl
These last four questions are just general in nature - you are almost done!

1. How important do you think it is, as a digital writer, that you have some
knowledge and understanding of copyright and fair use laws in the United
States?

Not very

Somewhat

Neutral/Can't Answer

Important

Very important

2. How would you primarily describe yourself:

310

Student
Teacher
Other

3. From the following list, please select your institutional name:
Arizona State University

Belleville Area College
Bethune-Cookman College

Bowling Green State University

Carroll College

California State University, Fullerton
California State University, Sacramento
California University of Pennsylvania
Clemson University

College of DuPage

Eastern Kentucky University

Eastern Washington University

Ferris State University

Grand Valley, MI

Houston Community College -Southwest Campus
Illinois Institute of Technology

Illinois State University

Ithaca College

Kutztown University of Pennsylvania
Lehigh University

Mercer University

Metropolitan State College of Denver
Middlesex Community College
Montana Tech of The University of Montana
Morehead State University

Nazareth College of Rochester

New Mexico State University

New York University

Northern Arizona University

Orange Coast College

Oregon Institute of Technology
Portland State University

Purdue University

Purdue University Calumet

Rock Valley College

San Diego State University

San Francisco State University
Southern Polytechnic State University
Southwest Missouri State University
State University of New York at Cortland
Tarleton State University

311

Tarrant County Jr. College

Thomas Nelson Community College
Towson University

University of Central Florida
University of Cincinnati

University of Findlay

University of Massachusetts
University of Minnesota

University of Minnesota-Crookston
University of Pittsburgh

University of Tennessee at Chattanooga
University of Texas at San Antonio
University of Wisconsin-Milwaukee
University of Wisconsin-Stout
Western Wisconsin Technical College
Washington State Community College
Waynesburg College

Wright State University

None/Can't Answer

Other (please specify)

FINAL QUESTION

4. For “students“ only: Would you be willing to supply your email and name in
order to be contacted for a follow-up interview (yes, you can change your mind
later)? If no leave blank; if yes fill in information.

EMAIL ADDRESS:

NAME:

Thanks for participatingll
Thank you very much. I will be posting results soon in a public place.

Best,

Martine Courant Rife
WIDE Research Center
Michigan State University
courantm@msu.edu

51 7-294-0895

312

APPENDIX 3.4

Explanation of Hypotheses

H1: The more knowledge one has about fair use, the less one’s speech is chilled.
In this hypothesis the dependent variable is chilled speech, and the independent
variable is knowledge of fair use. Fair use is a writer's understandings of the fair
use doctrine as it is situated within copyright law, as well as the doctrine’s ability
to protect one from copyright infringement liability. Chilled speech occurs if a
digital writer is not allowed to or is afraid to speak at all in digital formats, or is
othenrvise not allowed or afraid to express him/herself to the extent that he/she
wishes to. This hypothesis tests conclusions inferred from the Heins & Beckels’
(2005) study, but in a more scientific fashion. Testing of this hypothesis will also
inform arguments outlined in research on educational fair use as described
above.

H2: The higher the educational level, the higher the knowledge about fair use.

In this hypothesis the independent variable is educational level, and the
dependent variable is knowledge about fair use (conceptually defined above).
Educational level will generally mark placement in the population such as
undergraduate degree holder, master’s degree holder, doctorate degree holder,
or professional degree holder. These attributes are expected to be present in this
population. Degrees obtained will not only be measured, but so will years taken
towards a degree. This hypothesis relates to the general theory that education
should make people more knowledgeable about things, but also challenges that
general rule since technology changes so quickly that education alone might not
be a determining factor in this domain of knowledge.

H3: The higher the knowledge of fair use, the more likely one is willing to see
exceptions to obeying the law. Knowledge of fair use is an independent variable,
and willingness to see exceptions to obeying the law is the dependent variable.
Whether or not one thinks the law might be broken is a measure of attitude, and
the question itself that measures this variable is taken from the GSSDIRS,
General Social Survey, 1972 - 2000 Cumulative Codebook. The theory is that the
more knowledgeable one becomes regarding the law, the more one is willing to
bend or break the law (think of activities of lawyers and police officers, for
example). “In general, would you say that people should obey the law without
exception, or are there exceptional occasions on which people should follow their
consciences even if it means breaking the law?”

H4: The higher the knowledge of fair use, the higher the certainty one’s
knowledge is correct. Knowledge of fair use is the independent variable; level of
certainty in that knowledge is the dependent variable. Certainty in one’s
knowledge measures how sure participants are about their answers to the fair
use knowledge questions measured on a Likert scale of 1-5, with choices ranging

313

from very uncertain, to very certain. The theory related to this hypothesis is that
the more knowledge one has, the more confidence they have that they have
knowledge. Kenneth Burke sees language as a mode of action affected by
attitude. Therefore, studying the attitudes of writers, attitudes that may inform
invention, might be helpful.

H5: The more certain one is in their knowledge, the less one’s speech is chilled.
Certainty of knowledge is the independent variable; chilled speech is the
dependent variable. Both concepts are defined above. The theory is that the
more confidence one has that they understand how things work, the less likely
their speech is going to be chilled. The more confidence one has in their abilities,
the more they can push on certain boundaries, even legal boundaries. Also, fair
use is an enabling law - and so increased knowledge of how one might leverage
it should logically allow one to say more—and more freely!

H6: Persons who believe in exceptions to obeying the law will have lower levels
of chilled speech. Whether one feels compelled to obeying the law or not is the
independent variable; chilled speech level is the dependent variable. This
hypothesis relates to the theory that those who are willing to do what’s right,
rather than what’s legal, will have freer speech — especially because some view
our copyright laws overbearing and impinging on creativity.

314

APPENDIX 3.5

Interview Protocols

Sample Interview Questions

1. Can you tell me about this website?

2. Did you get paid to make this?

3. Did you come across any copyright issues as you wrote this?

4. How did you get these visuals?

5. For your slide show, would you consider including music as well?

6. Rather than including this thumbnail of the book cover, would you consider
instead including a link to a PDF of the entire book?

7. Here where you talk about the book, would you consider including an excerpt
from the book instead?

8. Would you consider including a larger, clearer image rather than this
thumbnail?

9. Here you have included attribution to your co-authors; would you consider
eliminating this attribution?

10. Here you have (don’t have) copyright information on your web composition,
would you consider deleting (including) this?

11. Rather than having a link here to an external site, would you consider instead
creating a PDF and housing it on your own website, and then linking to that
instead?

12. Would you consider packaging up your web site and putting it on a CD and
selling it at a profit? How about doing the same thing but giving the CD away at
conferences?

13. Would you have done anything differently if copyright law didn’t exist and
everything was in the public domain?

14. Is there anything you want the readers of my study to know about issues of
copyright and fair use as those issues impact teaching, Ieaming, and web
composing?

315

APPENDIX 3.6

VIGNETTES OF SEVEN RESEARCH PARTICIPANTS - STUDENT WRITERS
INTERVIEWED NOVEMBER 2007

LESLIE'S VIGNETTE ............................................................................ 317

 

CAREY‘S VIGNETTE ............................................................................ 320
ROB’S VIGNETTE ................................................................................. 323

 

 

 

326
JESSIE’S VIGNETTE ........................................................................... 330
HEATHER’S VIGNETTE ....................................................................... 334
AMANDA’S VIGNETTE ......................................................................... 338

 

316

LESLIE’S VIGNETTE

 

 

Game Play Basics: Overview FAQ
if!

—;:::|:Iabk Swims '_ Q: Why we are studying video gems in writing class?

on

59""9 2°07 A: Perhaps a better question would be why doesnt everyone
study video games in writing class? After all the video game
Industry is HUGE global game software sales totaled more

Classroom: than $10 billion last year. That' s more money than Hollywood

makes! But, more lmportantlyfor us, when we play games we
. engage In complex cognitive processes and practice
Instruct”; ' sophisticated literacies that writing teachers can only dream of

a: marine We all have a lot to learn from studying “990
93016. I

' Q: But aren‘t video games sort of non-academic?
' A: Not at all. Video game studies has become an Important

 

 

 

FIGURE 7.1. LESLIE’S VISUAL VIGNETTE

Leslie is a PhD candidate teaching first year writing at a doctoral university
as she completes her degree requirements and enters the job market. The
webtext depicted above is a screen capture of the course web page Leslie
creates for her first year writing students. She’s interested in using a theme for
her writing course that might draw upon her students’ interests while
simultaneously involving the study of digital writing. Leslie said, “I wanted to have
a cool site for them, when they first signed up.” In her web writing, Leslie plays
the roles of graduate student, teacher, and potential employee-job seeker. This
webspace serves the pragmatic function of housing teaching materials,
incorporating work Leslie did as a graduate student, and also showcases Leslie's
web design abilities and innovative pedagogies for potential employers. The
gaming control and visuals were blended together by Leslie in a graduate visual
rhetoric course, where she received feedback and even a grade from her
professor. By the time Leslie taught this course though, the gaming control visual
as a graduate course project had detached from its origins and was acting simply
as a teaching and marketing tool for Leslie. By considering Leslie’s multiple
audiences, and how she fashioned this webtext over a period of time (more than
one year) and with multiple underlying motivations illustrates the commonplace at

317

work — a place of convergence of the past (graduate student), the present
(graduate teaching assistant), and the future (faculty member at new institution).

On a very practical level, the webtext shown above illustrates a
commonplace from the point of view of remix writing, by bringing together the
familiar with the unfamiliar. Leslie explains the complexity of the visual:

We'd just Ieamed Photoshop that semester and I was playing with
my new knowledge of Photoshop and doing cool things. So, it's
made up of like 100 different pieces. The major part of it is a play
station portable; the console there, and then what I did was I took
the part where you'd normally see the video game, and I replaced it
with this composite image of my own, the name of the class, and
the font used where it says the name of the course there, is actually
a font developed for a particular game, grand theft auto. It's called
price down. It's a font they made for that. So I replicated that and
did my course title with that name, and then it's divided up into
different pieces. I got that idea from, I saw it somewhere else.
Somebody had a book cover that had like little pieces divided up
into little frames, sort of almost like stained glass, and I wanted to
do something similar. And so what I decided to do for that was, the
emphasis in my class was going to be not on games themselves
but on how people use games, so, all but the final corner image
down here, all those images, the rest of the images, were actually
people's photos I found on flickr.com, I searched for video games,
and I got pictures of real people playing video games, and then I
cut out just the people that I wanted. I mean just the parts that I
wanted. I traced, cut out the people, and I ran them through some
kind of filter to make it look funky like they do. They look kind of
stylized, almost like video games, and then I assembled them into
these little frames, and put them in there, the ah, like, I said the only
image here, that is not of real people is the lower left hand corner.

Leslie had taken things familiar to students, a game control, game fonts, a look of
“stained glass,” people playing games, a portable play station, typical web page
navigation elements, an image of notebook paper, a posting of office hours, and
then blended that together with the newness of a new college course, an
unfamiliar medium for a syllabus, unfamiliar connections of games to formal
education, an unfamiliar combination of game control and web page navigation
links, and brought all of these images and allusions into a new light. This is the
commonplace, the digital remix. And it triggers all kinds of copyright issues.

Fonts can be copyrightable and usually are in the context of gaming and
branding; gaming control designs are copyrightable. All the visuals Leslie took
from flickr.com may well have copyrights owned by others. Leslie did all this
without permission. She was far less worried about copyright than about
protecting peoples' privacy, especially the younger individuals featured playing
games. That was one of her main motivations for applying the filters in

318

Photoshop. She said, “I wasn't really worried about copyright. I didn‘t think
anyone would come after me for taking their flickr pictures.” She did say she’d be
more careful about using these materials to make her remix if she was going to
sell this image for a profit. But in the context of educational use, “I think for not for
profit, for educational purposes I think that would be pretty low on anyone's list of
priorities for anyone to come after me about it.” What is shown by this interview
combined with the visual vignette above — a simple screen capture that serves as
a capstone of Leslie’s web composing, is how the webspace as commonplace
triggers rhetorical invention and begs for an examination of whether copyright is
influencing writerly decisions.

Leslie was one participant who was least concerned about copyright - the
law did not stop her from inventing and being creative. She’d concern herself with
copyright only if it was easy to do so and still accomplish her pedagogical and
creative goals. For example, when asked about the possibility of posting
copyright protected articles and teaching materials in an open webspace as
opposed to a password protected one, Leslie explained:

I probably would, if that was the easiest thing to do. I would worry a
little bit about copyright violations, but you know I would weigh that
against what my options were. If I had an easy option to make it
password protected I would do that but if I don't have an easy
option . . .

In this case, Leslie made this web composition her own by cutting, pasting,
applying filters, adding text, synthesizing her own interpretations and ideas with
others’ materials. In Leslie’s case, it turned out her inventional decisions were
made to protect peoples’ privacy, for design reasons - to intrigue her students,

rather than to abide by copyright law. Leslie takes the old, and turns it into the
new.

Chilled Speech Score (0-2 not chilled; 54 very chilled): 3.0
Fair Use/Copyright Knowledge Score: 50%

Level of Certainty Score (1 very certain; 5 not certain at all): 3.0

319

CAREY’S VIGNETTE

Carey is a MA student in a professional writing program. She’s also an
employee of the institution where she is an MA student (not a student employee).
I do not provide a visual vignette of her web composition because all she could
offer me was a social networking site page, and that was fairly devoid of content.
Before her interview, I wondered what we would talk about because she had not
sent me a web composition that triggered any copyright issues. However, when I
arrived at the interview we began talking about her non-student work with a
national database that encourages teachers to share teaching and testing
materials. Carey’s involvement with this database is central, and she is directly
involved in the design of the database’s interfaces. She also provides technical
support and training for the university supported project. The teachers she works
with include high school teachers as well as university teachers from all over the
US. I cannot provide visual depictions to you because they are in a password
protected area, and to do so I would risk revealing Carey's identity. Regarding
her work as an employee she states that the users she worked, because it is
easier not to, usually did not choose to Iockdown their own information in the
system, although they could:

Carey: It's open source and it's also considered a content
management system for education and so when an instructor
creates a homework problem they can code their own randomized
homework problem; and then the instructor publishes it to the whole
. . . network, so someone at [Carey's university]. . . could build their
physics course out of homework that they created themselves,
another colleague at [the same university]. . . someone else at
[another university]. . . , and problems from the textbook they are
using . . .they choose to publish it as system wide, meaning anyone
in the system can publish it and then they also have options to only
publish it to people in their school, they even have options to
customize it and really lock it down so that only people in certain
courses can look at this.

Martine: Do they do that very often?

Carey: Most people do the default system wide, because it's
easier.

According to Carey, textbook publishers regularly give all the images from
textbooks to requesting teachers, who then publish these images to the entire
network. Carey expresses concern about whether the publishers know the
images will be published in this way. Carey's general impression is that teachers
are concerned about who might be able to access their self-created teaching
materials. These same teachers are less concerned with any implications for

320

sharing textbook materials or images with others who may not have purchased
that book.

It turns out there was a logical explanation for the bareness of Carey's
social network site. The main reason is that she feels responsible to the
institution for her professional identity especially as it intersects with her
knowledge of copyright. She feels that as someone working in a technology
enhanced area where others’ materials are shared, and as a student in a
professional writing program that has a focus on digital writing, she should also
be an expert on copyright. She is concerned about the design of social network
page with respect to code and errors in code. If she enhances her social network
site, errors in the code will be visible to her scientist or web programmer
colleagues. She has taken a special course at the library on copyright - offered
for employees and students but not part of her regular curriculum:

Carey: And this is my [social network page], and yes, I have one of
the most boring pages . . .I mean I could read all this stuff. I actually
read those forms and I found out, like early on, when I first signed
up, it says like oh you grant them your copyright— oh what a bunch
of bull! And so I'm just kind of like afraid of putting anything up
there, even anything original, because like to me it's like if I had a
big collection of original stuff, I would put like my good stuff, and
save my excellent stuff [for my personal website]

Martine: Is that why you don't jazz it up?

Carey: Yes because if you do jazz it up, I'm afraid of like there's all
those pimped out things you can get. I'm like snobby with my code,
and I can see errors, and so many of them don't work on a Iinnix
machine because they are not coded correctly, and I just get! 80 it
ends up looking like that. Like scientists and web programmers and
stuff, their webpages are really boring, and stmcturally, they have
no errors, but they aren't very artistic.

In her webspaces, Carey occupied the roles of tech-sawy employee, graduate
student, and family member. She and her husband are befriended through their
social network software profiles. While Carey is exceedingly knowledgeable
about copyright issues, she does not feel totally confident about her abilities, and
thus she prefers to keep a low profile on the web.

Carey isn’t doing a lot of reflection about copyright or fair use with respect
to her social network site because she decides to keep her site clean. She did
worry about having her own materials exploited. The main reason she kept her
site clean was to control her professional identity, not necessarily to avoid
copyright liability. With respect to the teacher course management system she
maintains and supports, it is her employer’s requirements that she allow teachers
to share their materials. I’m not sure the institution has invested Carey with the
authority to police these teacherly exchanges for copyright violations. She

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doesn’t seen to think she has that kind of authority. My impression is that the
institution that maintains this teacher exchange site looks the other way with
respect to the technicalities of copyright. While Carey worries about copyright
and ethical issues, she doesn’t let that stop her from supporting others' use of the
CMS. She doesn’t act as a police officer with respect to how others’ use the
system. She is very enthusiastic about the service, and wants teachers to use
this system to share their materials. She does have some very strong ethical
concerns regarding the survey question in my study on whether it is acceptable
to break a law on occasion if that law is wrong. To this she gives a resounding
yes, explaining to me “because I mean we wouldn’t have all the civil rights, the
law now, we wouldn't have it unless people stood up to the law."

Chilled Speech Score (0-2 not chilled; 54 very chilled): 1.0
Fair Use/Copyright Knowledge Score: 71%

Level of Certainty Score (1 very certain; 5 not certain at all): 3.2

322

ROB’S VIGNETTE

 

FIGURE 7.2. ROB’S VISUAL VIGNETTE

Above is a visual-vignette | create from the numerous web compositions
(URLs) Rob supplies to me in anticipation of our interview. Rob is a second-year
PhD student in a rhetoric and writing program. He is an international student
having come to the US from India. Rob supplies me with numerous webpages
he's created both while still in India, and then while a student in the US. Rob
constructs webpages for family and friends, and has previously worked as a web
designer in India. He describes this as doing “outsourcing" work. In India he
created websites for people all over the world. He also has websites he’s created
as a graduate student featuring some his PhD course work. So in webspace, he
occupies the roles of family member, friend, student, and employee. I create a
visual vignette of Rob's work partially to protect his identity, but also to give you
a flavor of the vast array of digital composing this writer completed. The purpose
and audiences for Rob's work varies greatly. He is very concerned about
copyright, but that is a newfound interest after coming to the US. He notes that
when obtaining his master’s degree in India, works citeds or reference pages
were not required. He did not consider copyright law in his work previous to
entering the graduate program and Ieaming about these issues as part of a

323

course. Rob describes his pre-graduate school thinking as solidly based in the
cultural norms of India:

In spite of the tremendous development in everything related to
web in India, so much that huge chunks of web based projects are
outsourced to India, why is copyright not as you might expect it to
be? There could be a historical/cultural reason why we Indians do
not think about it much. Knowledge is a community-owned thing in
India, and this concept dates back to the time before written
language. The Vedas (ancient Hindu texts) were said to the word of
God given to some sages and we never came to know which sage
said what. This knowledge was passed on from generation to
generation for a couple of thousand years. Re-mixing, re-mediating
and re-interpreting is believed to have led to its growth and
relevance to contemporary ethics. Perhaps what I mean to say is
that, knowledge was probably [not] allowed to be "owned" by any
author flexing copyright over it, because my forefathers wanted to
encourage this growth with time. Every aspect of politics,
relationship, customs, dress, art is encoded in the scriptures. We
use them and re-use them to suit our times. The question of asking
permission to use them never arises. That is probably why [we are
not that concerned with attribution and copyright] . . . Same way, if I
Ieamed something new [when attending school in India] from any
author and mention that in my paper in support of any idea, I
mention his/her name (of course I do not call it my idea) in my
[Indian] university exam answer. But it is not necessary to add a
reference to formally acknowledge the author, because to us, it is
not the author, but the new knowledge that is more important.

Rob has come to believe that copyright is very important, and he believes that if
he obtains all his images from flickr.com, those images are free from copyright.
That is not completely true as many flcikr.com images are restricted in some way
by the owner. A user has to read each license which can be exceedingly
complicated. However, Rob definitely tries to do things correctly.

He is the only interviewee who had experienced having his own web
materials, photos and text, appropriated by someone else. One day Rob was
searching the web and found a site that had taken his materials. But in this case
it was materials from the website of an Indian professional dancer he was writing
for (gift writing), and she was happy someone had taken her images because it
gave her additional publicity. So in that case Rob didn’t have any worries about
others using his material. But, when I asked what he might do if another person
appropriated his webspace design, in which he had situated the pictures the
dancer had given him, if someone took his design and used it, simply switching in
different dancers’ pictures, he said he’d “scream" and wanted to know if he could
sue for something like that.

324

Rob is willing to share the dancers’ text and pictures as long as it was
acceptable to the dancer. But as for his design, he expects others to respect his
work and not use it without asking. He also tries very hard to use materials that
are copyright free, within fair use, properly licensed, or have a low risk of
triggering legal liability. He is very appreciative of Ieaming about intellectual
property issues in graduate school courses, and discusses these issues as well
with the first year writing students he teaches as a teaching assistant at the
university. Rob does consider copyright law and fair use as he composes for the
web. He is also very concerned about ethical issues in the context of using
others’ materials including proper attribution, and he of course considers design
issues as he composes for the web. In the background of Rob’s composing
practices, is his experience in India. This prior experience provides Rob with a
rich contrast from which he can compare situations and practices in the US,
making Rob very reflective and thoughtful about using others' materials. His India
background presents a different cultural norm for remixing. This contrasting
cultural norm is underneath some of Rob’s pre-graduate school web composing
practices. I try to capture this “cultural collision” in the visual vignette above,
although I’m not sure I have done so.

Chilled Speech Score (0-2 not chilled; 5-4 very chilled): 3.0
Fair Use/Copyright Knowledge Score: 64%

Level of Certainty Score (1 very certain; 5 not certain at all): 2.3

325

SARAH’S VIGNETTE

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FIGURE 7.3. SARAH’S VISUAL VIGNETTE

Sarah is a recent master’s degree graduate of the professional writing
program. At the time of the interview she's been out of school for over a year,
and is completing webpages for family members as well as church organizations
that originally connected with her through family members. This work is
completed either for free or at a very low cost. At the time of the interview, it
appears that Sarah’s “gift writing” is developing into a web design business that
will continue to increase. She is thinking about charging proper amounts and
developing legal contracts to govern her work. Sarah’s primary web identity is a
relatively invisible one, as she creates materials to promote others' endeavors —
in the typical fashion of a technical writer. One of her relatives has received a
national book award, and Sarah creates a website for this person at no charge in
order to promote both the author and the book. This website was a total remake
of a previous website, and will continue to expand over time: “Well I think the

326

original idea that we had talked about, like the original website that we expanded
there is another book. There is going to be five books total, and the second book
is due out in spring, and then we will add another whole page, just on the second
book, and the third book and the forth book and the fifth book.” Sarah’s work
again evidences the idea of a commonplace, a mixing of the past, the present,
and the future all in a neat package of one website. Sarah also creates a website
for a church at a low cost, and is working on another church site, plus has
additional jobs coming along in the pipeline. She thus composes for a range of
audiences. Of the seven interviewees, Sarah (along with Jesse) is one of the
most reflective (draws upon metis, uses probability thinking and a weighing and
balancing of issues) about her use of others’ materials. She cares deeply about
using others’ materials ethically, and went to great lengths to try to use materials
that don’t require either permission or attribution. Sarah reads licenses and tries
her best to understand them. She is very interested in copyright and fair use, and
strives to Ieam more and keep up to date on such matters. She also knows the
flip side of copyright, in that her relative who had won the book award has a
proprietary interest in maintaining for-sale use of her book, and Sarah thus works
to protect that in her web design. When asked whether she would consider
including a link to a pdf of the entire book rather than a short audio excerpt
imported from a commercial site, she says: “Well it would be bad business for
her, I don't know if a pdf of the entire book exists, which means I would have to
do it. As an employee of hers, I wouldn't suggest it because it wouldn't make
sense to the purpose of the website, which is to advertise and publicize her
bookf

Sarah, as an independent contractor, also worries about protecting her
clients from legal or ethical problems. For example, she carefully considered the
use of others’ photographs on the church websites, and checks that these
individuals had given some kind of permission. Although Sarah would have loved
to have forms and perhaps a contract that she could have her clients sign, at the
time of our interview she was working under informal verbal agreements. “It [the
website] was for a whole church that I've never met before, and the idea of letting
them down or getting in trouble was pretty nerve racking for me, because they
trusted me, and I tried to be the best I could but I honestly didn't feel equipped,
you know." These issues of privacy protection, contract negotiation, and detailed
copyright in for-profit environments are not something she’d Ieamed in the
professional writing program where she’d obtained her degree. She said:

I mean I just wish, I love the different things we Ieamed in school,
but the focus was really on work you do in the classroom, and I
think about all the time we were building stuff in class where I
wished we had pretended we were doing it for commercial reasons.
And so that we really had to talk about the issues, and think about
them then as opposed to sort of ignore them because we were safe
then.

327

In other words, Sarah’s program in her mind had not really prepared her for
entrepreneurship or operating an independently owned web design business.
Undoubtedly, “fair use” plays a larger role in educational contexts. It’s role is
much less prominent in for profit environments. In our talk it was clear that Sarah
did not feel she could rely on “fair use” in for-profit environments in the same way
she could while still a student. And while she wanted to further develop her web
design business, she hesitated, explaining:

No, it's just a verbal agreement, since they've all just been for
family. Honestly I'm not sure with these last few websites, I really
love to do, but I'm not sure if, I kind of feel like they've deterred me
from going further into independent web design, and I wonder if in
the future if I were going to do it if I would want to work with a
group, instead of by myself, because I feel like it's just a little too
much, gray for me. On my own, you know.

The web compositions Sarah creates do use others’ materials. Much of
the content has been given to her, some she’d locates, some she’d creates from
scratch. For example, on the relative’s promotional site Sarah has been given
quotes (including quotes from well-known authors that somehow connects to this
new book), images, and text from her relative. Sarah herself has taken entire
book reviews and audio samples from commercial websites and incorporates
those into the site. “She [Sarah’s relative] wanted to quote, and she took them all
herself, and listed them and I just put them all [on the site]. I really hadn't thought
about it until now, but I can't imagine that there would be a copyright issue.”
Sarah also creates part of the design and text from scratch. This kind of remixing
was also present for the church websites she is working on. When asked
whether she’d consider just grabbing some images from a google image search,
Sarah explained how she created a logo for a church website:

Yea, so that would be like blatant copyright, and I don't just go
searching the intemet for pictures and then use them, you know. So
I went to istock photo, and there you can download a sample of the
picture, so, and I'm guessing that the reason that you do that is so
that you can make a mock-up and sell it before you have to buy the
picture. The photos are basically royalty free photographs, so you
buy one and then you get it. So this is just the sample, and then I
changed it up in Photoshop, and made it more like a painting, then
a photograph, and changed the colors to make it more vibrant, and
I showed it to them and they really liked it. Now I've got to go back
and purchase the one time, licensing fee for the picture.

She will then bill her client for this amount. Together, using classic strategies of
remix — webspace as commonplace, these multi-authored “100 different pieces”
of content come together under Sarah’s hand and converge in the web
compositions Sarah shares with me.

328

Chilled Speech Score (0-2 not chilled; 54 very chilled): 3.0
Fair Use/Copyright Knowledge Score: 64%

Level of Certainty Score (1 very certain; 5 not certain at all): 2.3

329

JESSIE’S VIGNETTE

learn about it.

 

FIGURE 7.4. JESSIE’S VISUAL VIGNETTE

Jessie is transitioning from MA student to PhD student. At the time of our
interview she is finishing up her MA in professional writing, and applying to PhD
rhetoric and writing programs. At the time I write this, several months later,
Jessie’s been accepted into a PhD program and will continue her studies in this
area. As a digital writer, Jessie maintains web identities as graduate student,
graduate teaching assistant, teacher (having taught at other institutions), and
applicant to PhD programs. Again I see the past, the present, and the future
converging in Jessie’s commonplace, her digital portfolio. She has this digital
portfolio she shares with me that contains all the basic elements like CV,
teaching philosophy, classes taught, and so on. Jessie has taught web design
and multimedia writing and even in first year curriculum also has a major
multimedia component. She always discusses and teaches fair use and copyright
issues in the courses she teaches. Jessie might be called a copyright activist, in
that she has a great deal of interest in preserving and expanding fair use, and by
the time I write this she's done at least two conference presentations, many

330

informal classroom presentations, and had a publication in a major journal in our
field on the issue of fair use, copyright, and multimedia writing.

Our talk centers around a movie she’s created that argues for activism in
the area of fair use and argues for changes in the law. Her movie is also to
increase public awareness. In tandem to her movie, an interesting component of
her digital portfolio is an “Open Letter" to copyright holders explaining that while
she'd tried to obtain permission, she was unable to do so and thus uses under
fair use. This open letter evidences responsibility taking, and brings to my
attention Jesse’s concern for acting ethically and legally when possible.
Remember that with respect to educators obtaining permission, as Jesse had
tried to do, Hobbs, Jaszi, & Aufderheide’s (2007) study revealed that obtaining
permissions is not a realistic goal for educators because either permission is
refused or the cost is prohibitive. So Jessie echoes the frustrations held by many
educators regarding the impossibility of obtaining permission when she says in
her letter, “I have sought — to no avail — permission to use your material(s) in my
Power Point essay showcasing the ease with which a person can commit ‘piracy’
and take music, video, images, and text from the lntemet these days.”

Jessie has endlessly reflected about copyright and fair use issues as she
constructed her movie, and reports being told two different things from two
different professors in her graduate program. These differing viewpoints she
experienced are reminiscent of the fair use ethics case that appeared in
Intercom, and that I discussed in Chapter 1 (Waller, 2006a,b). One professor
cautioned her about showing the movie at an academic conference because her
use was not necessarily fair, and the other had said, for the most part just about
anything goes at a conference because it’s fair use. After agonizing over these
two competing views for quite some time (months and months), Jessie reports
going ahead and showing the movie at a conference. Jessie’s ten minute movie
includes remixed materials from a variety of sources, including texts, music,
images, quotes, and so on. She explains the genesis and development of her
web composition, which she estimates took about 100-150 hours for the single
movie. The movie is posted and available for the public to view without password
protection:

OK, um, [name of movie] started to be a book report about Lany
Lessig's book Free Culture. I was just supposed to present on that
information, and um, kind of interesting my son had made a power
point that ah, was an automatic, you click it one time and it played
all the way through and it played to when “Wake me when
September ends,” and I'm inspired by this. I'm thinking how did he
do that? I want to do something like that. So that's really where
[name of movie] came about, was the idea of, oh I could present
Lessig's material in a moving power point movie, and do a sound
track with it, um, that's basically the context for me making it. Now
once I started making it, it was, it became more interesting because
I'm like, oh wow, I remember an old song called “Breakin' the Law.”
This is about breaking the law. It's about appropriation. That really

331

fits. I'll put those together, and um, it just kind of grew from there. It
ah, ended up being ten minutes, three songs in the background.

When asked about where she obtained the materials for her webtext (the movie),
she answered:

Google.com. I mean I knew that ah, one of Lessig's examples was
when Walt Disney remixed Steamboat Bill into Steamboat Willie, or
got his idea for Steamboat Willie, Mickey Mouse’s first cartoon from
a movie that was called Steamboat Bill. So that's kind of where that
started, but it certainly was easy enough to go to google and do an
image search and find images to highlight when I was talking about
in the written, in the text portions of the report. And it didn't stop
there. There's a picture of Pirates of the Caribbean in the piece.

And um, and many a logo, where I talk about remix and how it's not
necessarily needed in society but it's part of our freedom of
expression. So I show a logo of star bucks and someone's remixed
it to consumer whore logo. I show a logo of coca cola and someone
remixed it into a enjoy capitalism logo, and so, the star bucks, the
coca cola, what else did I use, McDonalds, eBay, these logos were
um, “right click,” “save file,” “save image as,” and I had them. They
were just. They're available on the intemet. That's some of the
problem associated with all of this today, is that the ease in which
we can break the law, ah, steal, whatever words you want to use,
but all we have to do is right click and it's ours for the taking, and
there's um, big, urn, disjuncts, and whether or not people know that
it's illegal when they do it, whether or not they care, and whether or
not we have ethical issues that are surrounding these moves, that I
made to bring light to the issue. I’m very proud of what I've written. I
also in the back of my mind think that the copyright police will come
after me someday, but you know.

And so Jessie lives with everyday fear that something will come up and subject
her to some kind of legal liability for her uses. Recall I mentioned earlier that
Jessie is a copyright activist. As we finish the interview I ask her if there’s
anything she wants the reader to know. She answers:

It's our students that are suffering because the laws, the way the
laws are. The students use Limewire, and who do image searches
and they . . . anytime I guest lectured, I've gone into a classroom
and I always ask, “hey don't incriminate yourselves, but tell me you
know, do you know what Limewire is?” And of course all the hands
go up. “Do you know anyone on campus who has got in trouble for
using Limewire”? There's always a hand that goes up. Someone in
that classroom, knows someone, has a friend, who um, [the

332

university] has taken their lap top, taken away their online
privileges, and if it ever happens a second time threatened to expel
them from the school. They are the ones that are suffering because
our laws are based on Thomas Jefferson’s, you know, 200 year old
copyright laws. They are set for print, they are not set for our right
clicking world, so, that's it. It's the students who are suffering, they
are the ones who are getting in trouble.

Chilled Speech Score (0-2 not chilled; 54 very chilled): 2.0
Fair Use/Copyright Knowledge Score: 71%

Level of Certainty Score (1 very certain; 5 not certain at all): 3.1

333

HEATHER’S VIGNETTE

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FIGURE 7.5. HEATHER’S VISUAL VIGNETTE

Heather is a third year undergraduate in a professional writing program.
She is also a student employee, plus she is doing freelance web design work for
a faculty member at the university where she attends. Her work for the faculty
member involves creating a conference webpage for a professional organization
in our field. As a student employee, she also works with a faculty member in
different discipline, a science program. Heather is very interested in copyright
and fair use. As we proceed through the interview, she notes how she creates
her web designs partially by creating her own materials, and partially by using
content supplied to her by others (i.e., classic remix). In the webtexts that
Heather shares with me, she is invisible as was Sarah, in the fashion of a
traditional technical communicator. Heather is the expert writer behind the
scenes. In order to obtain materials and resources for her web composing,
Heather frequents a couple websites. One website she likes is deviant art:

Deviant art is sort of a forum for people to put up any images, or
even poetry and that sort of thing you want. You create a profile. It's
sort of like, like facebook or something like that, but it's not really
social networking. It's more like art and creative networking, so you
can upload finished products. Like I have a friend who has
paintings and she scans them in, and most of the time you just put
like comments like, you know I really like this or, ask about
techniques, but a lot of people create things on Photoshop that
other people can use, like bnrshes.

Heather goes on to explain to me where she obtains specialized artistic brushes
she uses to create a background thematic image for one of her for-hire web
spaces. “They come in like sets. This set came with I think 3 or 4 other just DNA
related brushes, and you have the option of like download here, and then you
can install it yourself.” She explains where she’d Ieamed about deviant art,
partially from friends, and partially from one of her writing major teachers:

I had some friends in high school who were really involved in art,
and they all have deviant art pages, and also I found out about the
brushes specifically from [teacher's name]. She mentioned them in
[name of class] as, like she mentioned deviant art as just a place to
go and get ideas, and showed us how to get the brushes. So that's
where l Ieamed about downloading.

She felt that it was legally safer to obtain materials from deviant art, because
people sometimes gave permission:

Heather". I do think it is I guess safer because a lot of times when
people post things they'll have a disclaimer at the bottom, like their
own little thing that says like you're free to download it but um
sometimes they say that you have to just credit them for it on your
website, or somewhere on your image, or some of them say like
friend me, like if you have a page, you just add that particular user
as a friend if you are going to download their things.

Martine: How do you feel, do you honor those things?

Heather". Most of the time, yeah. I tend not to download anything
that says I have to credit them, just because I think it's going to take
away from the overall, like image, the product. So I try to find
people who say, like just friend me, so that l have a profile, and l
have a list of friends, like people, like um, used their images for.

Like Sarah, Heather tries to locate materials to use that don’t require attribution

because it may have a negative impact on the design. Heather thinks about
ethical issues when others give her materials or when she uses others’ materials.

335

Regarding her work with respect to the professional organization conference
webpage, she said she had some concern about where the organizers had
gotten some images they sent her, but she just wondered and never did anything
aboutfi:

I did wonder like where the photos from the front page came from,
but I didn't really do anything about, like that curiosity, but, um I did
think about it . . . on the front page, the image of [name of guest
speaker], he, when I was sent the photo, I was actually sent two or
three photos, and they seemed to be from different time periods.
One was like when he was younger, like he didn‘t have so quite a
gray beard, and um, I was just wondering like did they get them
from his website? [Martinez Did they just go grab them or did he
give them permission?] . . .Right, I did wonder that but I never
asked about it.

To make sure she was ethically and legally using others materials, she’d
carefully read the guidelines for her use of the university logo, and tried to follow
those to “make sure that I wasn't screwing it up or anything.” Regarding the
science-focused web design she did as a student employee, one where she
incorporated other students’ reports and pictures on an undergraduate research
project into the program webpage, she felt confident that she’d acted legally and
ethically because she new the students regularly visited the site:

I know that she [the faculty member] had them sign a form at the
beginning of the research part, their own program, that was like a
photo permission form, and they were all informed of the website,
like I send them a link every time, and it was like, every time
something new was uploaded, so that they knew what was going
on. ,

She works collaboratively with several faculty members as she completes her
own writing. Her own personal digital portfolio was still under construction at the
time of the interview, but she has no hesitation about using the materials she
creates for others as part of her portfolio. She did say that she wasn’t sure who
owned the webspaces that she’d created for others - raising questions about
work-for-hire issues. Heather also feels secure about her web design abilities
such that she’d ask questions or make suggestions if she thought something
might be an ethical or copyright issue, as far as materials others gave her. She
felt a responsibility to do so in fact, stating:

Especially if there's someone like drinking beer in a photo or
something like that. I would you know, just try to casually mention,
you know, is this person OK with this? Do they know that we are
putting it on the website? That sort of thing . . . Just because it's like
online and you never know what people are going to put online. I

336

consider this whenever I'm putting things online, and whenever
people, especially on like facebook, where people are putting
photos of me online and whatnot. I consider permission, and if I
don't want a photo up online, I have to make sure someone knows
that I don't want this. So whenever I'm doing webwork, and there
are other people, like their content involved, I always want to make
sure that they at least know what's going on and that they don't
have any problem with it.

Chilled Speech Score (0-2 not chilled; 54 very chilled): 1.0
Fair Use/Copyright Knowledge Score: 50%

Level of Certainty Score (1 very certain; 5 not certain at all): 2.9

337

AMANDA’S VIGNETTE

 

 

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Mflbhpfifluruflnmhhfi

 

 

 

 

 

FIGURE 7.6. AMANDA’S VISUAL VIGNETTE

Amanda is a recent graduate with an undergraduate degree in
professional writing. At the time of the interview, it's been about two years since
she graduated and she is in her second full-time position. She is working for a
national non-profit health organization as an online communication specialist.
She regularly maintains their website and uses the organization's intranet. The

338

visual vignette I provide for you here contains pieces of Amanda’s professional
portfolio. She is involved as an alum with her undergraduate program, and
generally finds it beneficial to stay marketable and keep her web portfolio up to
date and reflective of her current position and past experience. Yet her portfolio
is forward looking as well since she does participate in various professional
activities, some of which are competitive - such as applying for a teaching
abroad opportunity and seeking promotion and raises. Again we have an
example of the past, the present, and the future converging in the webspace as
commonplace.

Amanda’s portfolio is extremely robust, containing samples of every kind
of imaginable writing, from memos, to book chapter edits, to original poetry, to
web design. In several areas of Amanda’s portfolio, she features others’ work
that she has edited. In other areas, she features work completed collaboratively.
Amanda also keeps a copyright mark on the bottom of each webpage - not to

st0p people from taking her materials, but because she thinks it looks more
professional:

Amanda: . . . I just felt like it gave more legitimacy. Basically
saying, you know, it's my work. It gives a good idea of when it was
started and that I still update it, because the dates are on it. I
guess: one I wanted to communicate, it is a professional portfolio
and [two] I wanted to have all the aspects of professional.

Martine: Are you worried about someone stealing your material?

Amanda: Um, no, I haven't really given any thought. They certainly
could if they wanted to. There's no way that I would be able to know
if they were taking my [materials].

Martine: So the main reason for the copyright there was more of a
rhetorical move rather than to protect your stuff?

Amanda: Yes, because I don't know if I would - like I think if
somebody wanted, there would be no way for me to find that out.

Martine: So you're not going around policing the web to see if
people took it

Amanda: No. I'm not.

Amanda incorporates texts, visuals, and designs created by others. She uses
proofreading marks in her design that she obtains on the web and considers a
fair use partially because she retrieved these marks from a university website
that was used to teach students editing marks. She has a knack for incorporating
undergraduate course assignments into her portfolio in such a fashion as to
make these items look like work completed in for-profit environments. Part of this

339

knack comes from her ability to keep everything clean and professional. Amanda
wants to showcase her editing abilities, but when using others’ texts she asks
permission. She explains some of her materials:

The first three were all pieces that I did in a class where everybody
was developing their own published work. So my role in each of
these pieces was really to do some kind of editing, whether it was
developments, or something like that. With each of these I did ask
permission from the people who wrote the original to have their
work up there and they all gave permission so I have the original up
there because I want to be able to contrast what the original looked
like and what the changes were after I edited it or what suggestions
I made, because some of them show like my editing comments.

Smartly, Amanda also notes throughout her portfolio “used with permission" in
order to signal to her audience that she is aware of the ethical issues that arise
when incorporating others' texts into one's own writing. Some of the other
materials on Amanda’s website are chapters and flyers she’s edited. These items
are from real companies. She does not include the originals because she doesn’t
have permission from the companies. But interestingly, the original chapters and
flyers were provided to her by the teacher of an undergraduate course. I asked
her “Did the teacher in any of these courses tell the students like did any of them
address issues of copyright and fair use, or using those kinds of materials in your
professional portfolio, how did you decide, was it part of the curriculum?” And she
replied: “No. No it wasn't discussed.” So she independently decided that it would
be unethical to use someone else’s materials without their permission even in
this case of doing it to illustrate her own editing skills acquired at an educational
institution. However, she did include the original when blended with her edits.
She cleariy states her concerns were ethical, not legal.

She uses lots of white space and not many visuals on each linked
interface page of her site. While I thought perhaps this was because she feared
copyright liability, she emphasizes that she avoids using visuals because of
design reasons:

Well a lot of it was the whole design standpoint, that I wanted it to
be more clean, and there isn't really a lot of . . . with pictures, it's
not necessarily going to be consistent. So if you do them all the
same size and it's going to be from different views whether
somebody pulls that view or not, and I just wanted to keep it clean
and simple and I wanted to be able to control the colors and
everything, and not really have the graphical representation. So I
just mostly dealt with text. My stuff, I mean even with the design, I
still think it focuses more on the text that I did. The work I did with
text, not necessarily the design.

340

With respect to the visuals she did use, some of them are very generic and from
her early college experience - at times she was the only student in her class
doing a webpage for a course assignment. She does not remember where she
obtained these generic visuals, although she knew she herself had not made
them. As far as copyright, Amanda is not terribly concerned about it. In her job,
the employer provides forms that others must sign to release their rights to
donated materials, pictures, and texts. With the advent of user generated
content, such releases are crucial for Amanda to perform her job. She is well
aware that she is not the author of material she completes as an employee and
also feels a sense of responsibility as a representative of the organization to
make sure the organization is presenting a uniform identity, and is using others’
materials fairly:

We want to make sure that you know we are presenting the same
information that we are presenting everywhere else, to make sure
we are pulling all of our statistics from the same place. In that
sense, I mean it all falls under one copyright, whether it's being
done by me, or whether its be done nationally, or another state. It's
all under the organization's copyright. So it's more important that
people can always go and look to see if that it is actually our
website and when we are writing the articles and when we are
interviewing people, their personal beliefs and that sort of thing, so
we quote them, and we attribute it to them, and then they sign
consent forms and say that we can use anything that they say, and
any images that they supply, or anything like that in whatever way
we feel best. So we can use it in our multiple publications,
websites, anything like that.

We have a “' it's a publicity [form] and something else, and it's just
like a legal document, and the person can sign it for interviewing
and if it's a kid then the parents have to sign it . . . it has all the
same sort of language that like our websites have when people
want to share their story, or talk about their experiences, and they
say that you can publish this in any way that you see fit, and they
trust us, our organization, to use it, in a way that's not disrespectful,
or judgmental about their character, or anything.

This basically to protect the organization, and the people who we
are getting the stories from, so I think it's more a legal issue. . . and
when you're writing stories for the newsletter, for the external
newsletter, and anybody we interview, I give them the option to
review it first before I publish it . . so that they can see what we are
saying. To make sure that they are comfortable with it being
published, and I give them an option to say yes or no. It's just a
courtesy.

341

As we end the interview, I give her an opportunity to tell the reader what she
wants them to know about the importance of copyright in educational contexts, or
othenrvise:

Um, well I think it's definitely important to teach it and I know in our
program it definitely was, but I don't know if it was in other
programs. I think especially with the way the intemet is going. It's
getting huger, and I don't think enough people have the education
of what they can use and what they can't use, especially with the
idea of user generated content. What does that mean? Does it
belong to the user? Does it belong to the website? Can anybody
take it? So I think that just having like that kind of basics in terms of
- you could do it in any kind of writing class I think. It's still the idea
of you have your own work, and you're not plagiarizing and how
that extends to the web, which I don't think is really done right now,
especially with images. I think it's not really clear what you are
allowed to use and when you are allowed to use it, and when you
have to get permission, stuff like that.

I mean the only thing I would have wanted, is more explanation of
is the whole creative commons thing because I still don't
understand that completely, but I think that copyright is, I mean I

think it is big issue, and I think it is getting bigger as people are
trying to deal with the issue of what is fair use and what's not.

Chilled Speech Score (0-2 not chilled; 5-4 very chilled): 2.0
Fair Use/Copyright Knowledge Score: 57%

Level of Certainty Score (1 very certain; 5 not certain at all): 1.5

342

APPENDIX 4.1

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

TABLE 4.6: Knowledge and Understanding—Co yright and Fair Use
COPYRIGHT AND FAIR USE QUESTIONS True False Best N=
Answer
1. Even though you have no permission, as long 16% 65% FALSE 360
as you use less than three minutes of a legally
obtained song, it is certainly fair use.
Confidence very certain somewhat undecided not too not certain at all
Level certain can’t certain
answer
23% 45% 7% 20% 5%
True False Best N=
Answer
2. Using someone’s “creative“ work (i.e. fiction, 58% 42% FALSE 356
drama, poetry, art, artistic designs, music) without
their permission, is just as likely to be a fair use as
is using their “factual“ work (i.e. non-fiction,
unaltered photographic representations, news
items) without permission.
Confidence very certain somewhat undecided not too not certain at all
Level certain can’t certain
answer
24% 47% 14% 12% 3%
True False Best N=
Answer
3. If, without permission, you use someone else's 62% 38% TRUE 353
copyrighted material in order to create a political
parody, or otherwise conduct political
commentary/criticism, it is more likely to be a fair
use than if you were using the same material for
simple decorative purposes.
Confidence very certain somewhat undecided not too not certain at all
Level certain can’t certain
answer
27% 44% 1 1 % 15% 4%
True False Best N=
Answer
4. The owner of a copyrighted novel has failed to 5% 95% FALSE 350
make this novel into a play. You decide to do so
without the copyright holder’s permission. Your
derivative work, the play, closely follows the plot
and characters in the novel, but is likely to be a
fair use because it is different than a novel.
Confidence very certain somewhat undecided not too not certain at all
Level certain can't certain
answer
40% 43% 7% 8% 2%

 

343

 

 

True

False

Best
Answer

 

5. Let’s say you decide to, without permission, use
a very small amount of a copyrighted work,
incorporating it into your own web composition.
The original copyrighted work is a text of 200,000
words. You use 50 words, but, the 50 words you
decide to use are key, and the very best and most
financially valuable part of the original copyrighted
work. In fact, the other 199,950 words are
unanimously considered useless, mundane, and
trite. Even so, since your use is so small, it is
certainly a fair use.

 

21%

79%

 

 

FALSE

 

 

Confidence very certain somewhat
Level certain

undecided
can't

answer

28% 48% 8%

not too
certain

12%

not certain at all

4%

 

True

False

Best
Answer

 

6. In the event you have no permissions, using
someone else’s unpublished work is more likely to
be a fair use than using someone’s published
work.

 

18%

82%

 

 

FALSE

 

 

Confidence
Level

very certain somewhat
certain

undecided
can't

answer

27% 46%

12%

not too
certain

12%

not certain at all

3%

 

True

False

Best
Answer

 

7. Without the copyright holders’ perrnlssions, you
copy five copyrighted, freely available web-
published images from five different authors. You
mix these five images together, cropping them,
and substantially changing their overall
appearances such that they are totally
unrecognizable from their original forms. You then
blend in five of your own original images plus
some original text you’ve written, creating a
collage that is politically informative on an
extremely urgent topic in current events. You
publish your collage on your website for the
internet world to have free access to for
educational and political purposes. In this kind of
situation, your use of the five images you started
with is probably a fair use even though you did not
obtain permissions from the copyright holders of
those first five imagg

 

55%

45%

 

 

TRUE

341

 

 

Confidence very certain somewhat

undecided

Level

1 7%

certain

48%

can’t
answer
1 2%

not too
certain

20%

not certain at all

3%

 

 

[Tme

I False

| Best

IN=

 

344

 

 

Answer

 

8. When you were 2 years old you drew an 26% 74% FALSE 336
original crayola drawing from your imagination.
You’ve saved it all these years. Unbeknownst to
you, your friend steals this from you, scans it, and
posts it on her webpage as part of the design. You
have no right to ask her to take this down based
on copyright laws, because such drawings are not
copyright protected in the US anyway.

 

 

 

 

 

 

Confidence very certain somewhat undecided not too not certain at all
Level certain can't certain
answer
24% 37% 14% 19% 6%

 

345

 

APPENDIX 4.2

 

TABLE 4.7: Knowledge and Understanding—Unauthorized Use vs.

Authorized Use Questions

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

UNAUTHORIZED V. AUTHORIZED True False Best Answer N=
USE QUESTIONS
1. If you ask a copyright holder for 53% 47% FALSE 340
permission to use their material in your
own original web composition, and they
say no, this means you absolutely
cannot use the copyright holder’s
material under fair use.
Confidence very certain somewhat undecided not too not certain at all
Level certain can’t certain
answer
28% 43% 12% 15% 2%
True False Best Answer N=
2. If you use something with a Creative 32% 68% FALSE 339
Commons license, it means you
automatically get fair use.
Confidence very certain somewhat undecided not too not certain at all
Level certain can’t certain
answer
18% 31% 21% 16% 14%
True False Best Answer =
3. Mary, a law abiding citizen, is using a 48% 52% FALSE 336
large chunk of text (1,000 words) in her
webpage. The sole copyright holder of
this text is her friend Tim. Tim's given
her express written permission to use
this text in her webpage. Even so, as a
conscientious, law abiding citizen, Mary
should still make sure she is within fair
use when using Tim's text in her
webpage.
Confidence very certain somewhat undecided not too not certain at all
Level certain can't certain
answer
27% 49% 9% 13% 2%
True False Best Answer =
4. Kim, a law abiding citizen, does a 46% 54% FALSE 335

search on the Creative Commons
website for an image that allows her to
use it as long as she attributes the
original author and uses for educational
use. Kim decides to use this image for a
100% educational use. She clearly and
prominently attributes the original
author. Nonetheless, as a conscientious

 

 

 

 

 

346

 

 

and law abiding citizen, Kim should still
carefully make a determination on
whether she is within fair use.

 

 

 

 

 

 

 

 

 

 

 

 

 

Confidence very certain somewhat undecided not too not certain at all
Level certain can’t certain
answer
21 % 53% 12% 10% 4%
True False Best Answer =

5. Mary, a law abiding citizen, decides 68% 32% FALSE 335
to use five pages of a seven page ninth
circuit court decision in her website.
She legally obtains this unedited
opinion directly from the court's website.
She wants to cut and paste all five
pages directly onto the html page she is
composing. She will not edit or
comment on the court opinion, nor does
her webpage allow commenting by
others. Before using the text in her
website, as a conscientious, law abiding
person she should be sure she is within
fair use.

Confidence very certain somewhat undecided not too not certain at all

Level certain can’t certain

answer
24% 43% 15% 15% 3%

 

347

 

APPENDIX 4.3

 

TABLE 4.9: Chilled Speech Index

 

YES

NO

Can’t
Answer

 

1. Have you ever been asked to take
down something (text, audio, image) you
had posted to the web by a copyright
holder or alleged copyright holder
because the text, audio, image, etc., was
allegedly infringing on the owner’s
copyrights (for example, via a
communication by way of a take down
notice or a cease and desist letter, or
even an email)?

6%

94%

373

 

2. If so, have you ever actually taken
down such material because of this
request?

5%

 

3. Have you ever voluntarily taken
something down, on your own initiative,
which you had posted to the web
because you felt you might be subject to
copyright liability even though you never
actually received a request to do so?

18%

78%

4%

373

 

4. Have you ever not posted something to
a web composition you were creating
because of fear of copyright liability?

46%

50%

4%

373

 

5. Have you ever felt that the purpose or
message of a web composition you were
creating would be better, clearer, or more
aesthetically pleasing to the audience if
you could use others’ copyrighted
materials without fear of legal liability?

58%

34%

8%

373

 

 

6. Have you ever felt that you weren’t
really able to say what you wanted in a
web composition because you were
afraid if you said it the way you wanted,
someone might sue you for copyright
infringement?

 

1 4%

 

82%

 

4%

 

373

 

348

 

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