Alex Ruthmann’s Blog

Caveat # 1: I am not a lawyer and do not pretend to be one.

Today, I read an article posted on Ars Technica written by Timothy Lee detailing a recent “fair use” Copyright decision by Judge Sidney Stein of the U.S. District Court - Southern District of New York.

From the article:

Judge Stein’s task wasn’t to critique the dubious logic of this segment, but to evaluate the narrower question of whether the film’s use of “Imagine” is fair under copyright law. He noted that the film was focused on a subject of public interest, and that the film was commenting on Lennon’s anti-religious message. The excerpting of copyrighted works for purpose of “comment and criticism” is explicitly protected by the Copyright Act, and Judge Stein ruled that this provision applied in this case.

The decision quotes extensively from Bill Graham Archives v. Dorling Kindersley, a 2006 decision that allowed the reprinting of reduced-size versions of several historical posters used in a coffee-table book about the Grateful Dead. In that case, as in this one, the alleged infringers had used the works in a commercial product, but the US Court of Appeals for the Second Circuit found that “courts are more willing to find a secondary use fair when it produces a value that benefits the broader public interest.” Whatever the merits of its argument, Expelled is clearly commentary on an issue of public concern, and the use of “Imagine” was central to its argument. Those facts weighed heavily in favor of a finding of fair use.

Stein and company were defended by lawyers from Stanford’s Fair Use Project. In a blog post announcing their decision to take the case, executive director Anthony Falzone wrote that “The right to quote from copyrighted works in order to criticize them and discuss the views they represent lies at the heart of the fair use doctrine,” and argued that Ono’s actions threaten free speech.

This decision and the 2006 decision referenced above cause me to ask a few questions regarding the implications for music education:

In the 2006 decision, the use of reduced sized Grateful Dead posters was upheld as “fair use” within a commercial product because “courts are more willing to find a secondary use fair when it produces a value that benefits the broader public interest.”

In the Sidney Stein decision, the use of an excerpt from John Lennon’s Imagine used in a commercial film for the purpose of criticizing and commenting on issues that “benefit the broader public interest.”

So, what are the implications of using copyrighted samples or excerpts of commercial music or videos as part of our students’ educational pursuits? Is careful musical and educational use of commercial music and video in school projects of “benefit to the broader public interest?” If our students are utilizing these materials (including YouTube videos) for the purpose of artistic, musical “comment and criticism,” would that not also be considered “fair use” in light of these decisions?

What is particularly interesting to me is that both of the approved uses described above - using a copyrighted image in reduced resolution and using an excerpt of a copyrighted and performance-righted musical recording - were found to be “fair use” in two commerical settings. Also, both uses of copyrighted material seem to have been interpreted b the Judges as a “transformative” use (see Wikipedia entry on Fair Use). It would seem to me (again I am NO lawyer) that similar uses and creation of original multimedia using music and popular commercial and non-commercial video for “comment and criticism” of “benefit to the broader public interest” where the work has been “transformed” and not wholly-duplicated within an non-profit educational setting of a school would now be permissible as documented by the above case law.

Let’s take a look at the “fair use” section of the Copyright Act of 1976, 17 U.S.C. § 107:

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;
4. and 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.

Since the above uses were found to be “fair use” within commercial settings, factor #1 in the Copyright Act of 1976 would seem to provide students and teachers working in an educational context even more protection under “fair use.” I find the Sidney Stein ruling of particular importance to music educators because it provides case law that extends the “fair use” of images to copyrighted and performance-righted musical recordings.

In light of the cases described here, I feel more comfortable letting my students use copyrighted images and musical excerpts in the creative and educational work they do in my K-College music and music ed courses, with the following caveats:

1. The use of the works is in part, and not in whole (e.g., reduced resolution or size)
2. The use of the works for the purpose of “criticism and commentary”
3. The use and creation of the works results in a “value that benefits the public interest”
4. The use of the works is “transformative” such as in a parody or for “criticism and commentary”
5. The use of the works do not devalue or negatively impact the market of the original copyrighted works

And, I might even be inclined to allow them to put together a compilation CD or DVD and sell them as a fundraiser….

What do you think?

The Young Professionals Focus Group (YPFG) of the International Society for Music Education (ISME) has just launched a new online social network - http://ismeypfg.ning.com/ where music educators from around the World can come together to share research, lessons, music, and educational strategies with each other.

This site was launched as part of a pilot project using the Ning social networking platform to bring together music educators in advance of the 2008 ISME World Conference this July in Bologna, Italy. Even if you can’t attend the conference in Italy, please stop by and join.

To start, we have a number of projects integrated into the website:

1. Research Mentoring - This group is for you to post questions and abstracts and to discuss anything related to your research or research in general. As the conference approaches, we will post the exact times and presentation schedule for our research sessions.
2. Social Lounge - Use this space to talk about anything and to get to know each other. Post your itineraries, places to stay in Bologna, and anything else you’d like.
3. Sharing Practice - This project will be formally launched in a month or so. We are looking to gather stories and examples of what music learning and teaching are like across the World from the perspective of ISME young professionals.

Stop by http://ismeypfg.ning.com/ to meet other music educators from around the World!

Today, I came across a new Amazon.com service called UnSpun. UnSpun is a social list creation and sharing site with some unique possibilities for supporting learning in classrooms.

For a while now, I have been looking for a Web 2.0 tool that would enable my students, after reading a post or article on one of my course blogs, to be able to easily post their own questions and/or comments to be shared with the whole class. The architecture of blogs inherently supports readers adding comments to posts. However, when you have a lot of posts to read from a large number of students in a course, it takes a long time for the instructor to read and synthesize the themes and issues that emerge in students’ responses. As a teacher, I often base my class discussions on the topics raised by students in their blog post responses. Since I began facilitating my classes through blogs and social networks, I’ve wanted an easy tool where students could centrally post their questions and comments and vote the most important questions/comments (to them) higher and lower (similar to Digg.com). Amazon’s UnSpun now gives me that functionality.

Check out an embedded UnSpun list in this blog post:

Now, UnSpun looks to be quite nice for what I’d like it to do. However, as with many third-party social networking and Web 2.0 tools, there are pros and cons:

Pros: Readers can easily add their own questions and comments, these are placed in a central box which can easily be placed anywhere on a blog through the widget/embed code functions, readers can vote questions and comments they view to be more relevant to them higher on the list. Voting up or down an existing comment or question does not require signing in.

Cons: Readers have to have an Amazon.com account, they have to sign in to that account when adding a question.

Middle Ground: If you click to add another question or comment, you are taken to your list on Amazon’s UnSpun website. Once on this site, you can edit your questions, merge duplicates (a good function for the teacher), and add comments. It might get a little complicated and confusing if students decide to add comments on this page… there seems to be no indication on the embeddable widget that comments exist on the UnSpun website.

So, UnSpun looks to be a promising tool at least worth trying with my students this coming semester. If anyone knows of other Web 2.0 tools with similar functionality, please let me know.

Back in the Fall of 2005 when I was first experimenting with Wikis in my middle school classroom, Eric Oatman, a news and features editor at the School Library Journal interviewed a number of teachers across the country (including me) about how we were using Wikis with our students.

The product of these interviews was an article on their website sharing a number of cool ways to integrate wikis into classes of all sorts. Though this article was written in 2005, it still provides a good overview of the possibilities of using wikis in your classroom. Since 2005, there have been many innovations in Wiki technology, most notably that many sites such as PBWiki.com and Wikispaces.com easily allow you and your students to create and manage wiki entries without having to know the special “markup” language many wiki interfaces required back in 2005. As with any technology, innovation continues and many become easier to use. Such has been the case with wikis over the past three years.

Back when I originally created the Emergent Encyclopedia of Composing for my middle school students, I browsed around and tested a number of free wiki sites and finally settled on PBWiki.com. I still use PBWiki today for my college classes because of its ease of use and multimedia features.

Since installing their new “point and click” interface back in January, users can now easily upload and post photos and streaming videos from YouTube, streaming audio from YackPack.com, add a chat room, install Google Gadgets, among other things.

As I have continued to experiment with wikis in music-related classes, the ability for students to create entries embedded with video and audio has become important. Though most wikis are optimized for textual and, to an extent, photographic-based collaboration, my students are moving toward conveying their ideas in audio and video form. Earlier this week Mojiti.com, previously featured on my blog here, released a new set of features that my students are already beginning to take advantage of.

The latest updates to Mojiti include:

• Multimedia annotations. Users can overlay/embed their own audio or video into a video.
• Freehand drawing support. Users can add their own Madden-style writing overlays.
• Mojiti-to-go Bookmarklet. This feature enables you to add a plug-in to your web browser which allows you to add Mojiti features to any streaming video hosted on the web.

Watch below or click here to see the new features in action.

Writing workshop educator Katie Wood Ray has written a great chapter on how to read like a teacher of writing. It has always been a challenge for me and with the methods students I work with to know how to find good pieces of music that can serve as models of compositional process for young composers.

An approach I have found useful in my own teaching has been to read Katie’s chapter, but instead substitute the word “listening” when she writes “reading,” substitute “piece of music” when she writes “text,” and substitute “composing” when she writes “writing.” The pedagogical models used in process writing classrooms and approaches to “listening” by Katie Wood Ray can have tremendous results when adapted for use to support student composing in music classes. Give it a try!