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Clin Eval

by: Dudley Huel

Clin Eval AT 210

Dudley Huel
GPA 3.81


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This 43 page Class Notes was uploaded by Dudley Huel on Thursday October 29, 2015. The Class Notes belongs to AT 210 at University of Michigan taught by Staff in Fall. Since its upload, it has received 8 views. For similar materials see /class/231567/at-210-university-of-michigan in Athletic Training at University of Michigan.

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Date Created: 10/29/15
tserver05 roductnCCPY5371CPY101txt unknown Seq 1 3VOCT705 958 War and Peace 101 WAR AND PEACE THE 34TH ANNUAL DONALD C BRACE LECTURE by JESSICA LITMAN I d like to thank the Copyright Society and the Brace committee for inviting me to speak to you this evening I am honored that you invited me to give this lecture I want to talk a little bit about war 7 copyright war 7 and then I want to talk a little bit about peace It s become conventional that we re in the middle of a copyright war1 I tried to track down who started calling it that and what I can tell you is that about ten years ago about the time that copyright lawyers every where were arguing about the White House lnformation lnfrastructure Task Force White Paper Report we started seeing the phrase copyright war used as a figure of speech to express some of the passion and vitriol that characterized those argumentsZ lt popped up more and more often until by a couple of years ago all the irony had leached out of the phrase and people were matterof factly referring to what s going on as the cop yright war in news accounts law review articles and weblogs3 So by Professor of Law Wayne State University This is a nearverbatim text of the lecture I delivered to members of the Copyright Society on April 14 2005 with additional footnotes I would like to thank Jon Weinberg Pam Samuelson and Alissa Centivany for their helpful comments 1 See eg Heather Green Are the Copyright Wars Chilling Innovation BUS WEEK Oct 11 2004 at 210 Saul Hansell amp Jeff Leeds A Supreme Court Showdown for File Sharing NY TIMES Mar 28 2005 at C1 2 See eg Kathleen Hollingsworth 1995 Year in Review LEGAL INTELer GENCER Jan 8 1996 at 9 3 See eg Kathryn Balint Music Industry Widens Digital Copyight War SAN DIEGO UNIONTRIB Mar 2 2001 at A1 Niva Chonin Holiday Electron ics MP3 Sites a Mixed Bag SF CHRON Dec 3 1998 at C3 ls online music the nal blow to an ailing record industry Are the MP3 pirates pro letarian heroes or base thieves It depends on whom you ask and who wins the escalating copyright war Amy Harmon Black Hawk Download Moving Beyond Music Pirates Use New Tools to Turn the Net Into an Illicit Video Club NY TIMES Jan 17 2002 at G1 quoting the MPAA s Jack Valenti We re ghting our own terrorist war John Logie A Copyright Cold War The Polarized Rhetoric of the PeertoPeer Debates FIRST MONA DAY July 7 2003 httpwww rstmondayorgissuesissue877logie Beth Piskora The Copyright Wars Piano Rolls to Napster NY POST Feb 19 2001 at 37 Mike Snider Media vsr Web in Digital Copyright War USA TODAY Feb 17 2000 at 1A Dan Tennant The Copyright War LIBRARY J June 15 2001 at 28 Jonathan Zittrain Calling 07 the Copyright War BOSV TON GLOBE Nov 24 2003 Editorial Copyright War Find a Truce LA TIMES Mar 19 2002 at 12 Eisner Calls for ISPs to Be Forced to Stop Illegal tserver roductnCCPY53rlCPYIOI txt unknown Seq 2 3VOCT105 958 102 Journal Copyright Society of the USA 2003 the usage had become standard That year by the way was the year we saw the district court decision in Grokster4 the Supreme Court deci sion in Eldred5 and the first lawsuits filed against individual consumers for using peertopeer file sharing networks6 I REAL WAR During the same couple of years the United States has been involved in what I m going to call a real war When I speak of a real war I mean the kind of war where we arm soldiers with guns and ship them off to kill people and be killed Watching a real war reminds us of things we know about wars that we tend to forget during peacetime Whether you support or oppose the United States war in Iraq the disadvantages of war over other methods of dispute resolution are I think pretty uncontroversial Wars are incredibly expensive It costs all the money you have on hand sucks up any eXtra and then plunges you into debt Not all of the money you end up spending is sensibly spent War typically sees the build ing of costly but poorlydesigned and illthought out fortifications Wars are polarizing The world divides itself into us versus them In wartime we can forget even longstanding customs of tolerance towards opposing views Loyalty to one s own side in wartime can seem to de mand that we turn a blind eye to our compatriots mistakes Meanwhile people who disagree with our side seem to be consorting with the en emy War inspires a wellfounded paranoia that makes it difficult to trust people who don t hew to the official line War causes incredible damage some of it purposeful and some of it unintentional or at least collateral The territory over which the war is being fought can be badly damaged or even utterly destroyed There s an African proverb When elephants fight it s the grass that suffers The Copies WASH INTERNET DAILY June 8 2000 Music Wars A Timeline CORP COUNSEL Sept 2003 at 66 I contributed to the trend See JESSICA LITMAN DIGITAL COPYRIGHT 15165 2001 Chapter Ten The Copyright Wars Jessica Litman War Stories 20 CARDOZO ARTS amp ENT LJ 337 2002 4 MetroGoldwynMayer Studios Inc V Grokster Ltd 259 F Supp 2d 1029 CD Cal 2003 a d 380 F3d 1154 9th Cir 2004 vacated and remanded 125 S Ct 2764 2005 5 Eldred V Ashcroft 537 US 186 2003 6 See Frank Ahrens Music Industry Sues Online Song Swappers Trade Group Says First Batch of Lawsuits Targets 261 Major O fenders WASH POST Sept 9 2003 at A1 See also Privacy and Piracy The Paradox ofIllegal File Sharing on Peer to Peer Networks and the Impact of Technology on the En tertainment Industry Hearing Before the Subcomm on Permanent Investiga tions of the Senate Comm on Governmental A airs 108th Cong 2003 available at httphsgacsenategovifilesshrg108275privacypiracypdf tserver05 roductnCCPY53rlCPYlOl txt unknown Seq 3 370C105 958 War and Peace 103 longer a war goes on the more damage it causes and the more difficult and expensive it is to rebuild afterwards Making peace usually requires combatants on both sides to settle for less than they promised themselves going in Even the winner of a war commonly finds itself with less than it started with before the war Re building is hard sometimes it just isn t feasible Most of what I ve just said is uncontroversial Supporters of a partic ular war still agree that war is terrible though they ll argue that sometimes it is important to make a stand and fight for what is right or for the greater good or to protect ourselves against something worse But most people agree that war is an acceptable solution only when there is no other acceptable solution With that under our belts I want to talk about the copyright war Wait a minute you re thinking Isn t that a pretty unfair comparison You just said that real wars involve soldiers and guns and bombs and kill ing people and well copyright wars don t Bear with me for a minute Real wars are expensive polarizing and destructive Is the same thing true about copyright wars Is it in particular true of this copyright war the one we re in the middle of at the moment II THE COPYRIGHT WAR On one side of this war are people who believe in article 1 clause 8 section 8 of the Constitution and insist that copyright law does and should promote the Progress of Science and the useful Arts7 On the other side of the war we have well it depends on your viewpoint The enemies in the copyright war are either apologists for piracy who insist that informa tion and entertainment want to be free8 or they re corrupt fat cats who are misusing copyright law to shield their antiquated business models from competition9 At least that s what I read 7 See eg Brief Amicus Curiae of Law Professors J Glynn Lunney Jr et al MetroGoldwynMayer Studios Inc V Grokster Ltd at 1 127 S Ct 2764 2005 No 04480 available at httpwwwefforgIPP2PMGMiviGrok ster20050301ilunneypdf Amicus Curiae of the Intellectual Property Own ers Association at 14 MetroGoldwynMayer Studios Inc V Grokster Ltd 127 S Ct 2764 2005 No 04480 available at httpwwwefforgIP P2PMGMiviGrokster050124IPObriefpdf Brief Amicus Curiae of IEEEUSA at 1 MetroGoldwynMayer Studios Inc V Grokster Ltd 127 S Ct 2764 2005 No 04480 available at httpwwwefforgIPP2P MGMiviGrokster0501247IEEEpdf 8 See eg National Music Publishers Association The Engine of Free Expres sion Copyright on the Internet httpwwwnmpaorgnmpajexpression html 9 See Katie Dean Battling the Copyright Big Boys WIRED NEWS Nov 30 2004 httpwwwwiredcomnewspolitics012836565100html Barry tserver roductnCCPY53rlCPYlOl txt unknown Seq 4 3VOCT705 958 104 Journal Copyright Society of the USA I m not going to talk about whether waging this particular copyright war was a good idea in the first place 7 it s a little late for that I m not going to express any opinion about who might have started it I don t think I know the answer and in any event it doesn t much matter now I do want to talk about what this war is costing us and what we re going to have to come to terms with when we finally decide that it s time to stop Like real wars the copyright war has been very expensive The litiga tion and lobbying budgets of major copyrightaffected industries have gone through the roof We ve all been the beneficiaries of that spending spree I suppose we should think of ourselves as the defense contractors and arms dealers of the copyright wars And I don t think anyone would dispute that the copyright war has been polarizing The middle ground seems to have disappeared entirely One is either one of us or one of them 10 I know that for many people in this room I am indelibly one of the them It s small consolation I know that most of what I m saying would be equally unwelcome in a room full of the people that you think of as my us The disappearing middle ground has forced people who might once have been in a position to mediate to choose sides People for whom copyright has been at best a peripheral issue have involved themselves in the battle Look at the briefs filed in the Grokster case On one side are the Attorneys General of forty states11 the Commissioner of Baseball12 and the Christian Coalition of Ritholtz The Big Picture New Arguments Against P2P The Phony Moral Debate Apr 5 2005 J quot 39 A 39 timeha 20 04 newiargumentsiahtml 10 See eg Piracy ofIntelleetual Property Hearing Before the Subcomm on In tellectual Property ofthe Senate Comm on the Judiciary 109th Cong 2005 testimony of Marybeth Peters Register of Copyrights available at http wwwcopyrightgovdocsregstat052505html What is problematic is that some American commentators who are prone to hyperbole about what they see as an imbalance in the US Copyright Act are providing arguments and rationalizations that foreign govern ments use to defend their failure to address this type of organized crime The confusion wrought by the imprecision and lack of clarity in these commentators statements is not helpful to our achieving the goal for which there is no credible opposition dramatic reduction in organized piracy of US copyrighted works abroad 11 See Brief Amici Curiae of Utah et al in Support of Petitioners MetroGold wynMayer Studios Inc V Grokster Ltd 127 S Ct 2764 2005 No 04 480 available at httpwwwefforglPP2PMGMiviGrokster050124 StatesAGpdf 12 See Brief of Amici Curiae Of ce of the Commissioner of Baseball et al in Support of Petitioners MetroGoldwynMayer Studios Inc V Grokster Ltd 127 S Ct 2764 2005 No 04480 available at httpwwwefforgIP P2PMGMiviGrokster050124copyrightownersbriefpdf tserver05 roductnCCPY53rlCPY101txt unknown Seq 5 3VOCT105 958 War and Peace 105 America13 On the other side is the Intel corporation14 Consumers Union15 the American Conservative Union16 and the Eagle Forum17 This polarization has been particularly unfortunate in my own small puddle of the world In legal academia we don t actually like to take sides That s not our job Our job is to try to figure out what s true and then to say it as well as we can Scholarship written from an orthodox and preexamined point of view whatever side you re on tends to be second rate scholarship The conflict has been so protracted and so venomous though that most of us have found ourselves on one side or the other There were nine different law professor briefs filed in Grokster Six on Grokster s side18 and three on MGM s I ve been teaching copyright 13 See Brief of Kids First Coalition et al as Amici Curiae in Support of Peti tioner MetroGoldwynMayer Studios Inc V Grokster Ltd 127 S Ct 2764 2005 No 04480 available at httpwwwefforgIPP2PMGMV Grokster050124kids rstcccwpdf 14 See Brief of Intel Corp as Amicus Curiae Supporting Affirmance Metro GoldwynMayer Studios Inc V Grokster Ltd 127 S Ct 2764 2005 No 04480 available at httpwwwefforgIPP2PMGMiviGrokster 200503017intelpdf 15 See Brief of the Consumer Federation of America et al as Amici Curiae Sup porting Respondents Metro GoldwynMayer Studios Inc V Grokster Ltd 127 S Ct 2764 2005 No 04480 available at httpwwwefforgIP P2PMGMiviGrokster200503017CFACUFPPKpdf 16 See Brief of Amici Curiae the American Conservative Union and the National Taxpayers Union in Support of Af rmance MetroGoldwynMayer Stu dios Inc V Grokster Ltd 127 S Ct 2764 2005 No 04480 available at httpwwwefforgIPP2PMGMVGrokster20050301acu7ntupdf 17 See Brief of Amicus Curiae Eagle Forum Education amp Legal Defense Fund in Su port of Respondents MetroGoldwynMa er Studios Inc V Grokster Ltd 127 S Ct 2764 2005 No 04480 available at httpwwwefforgIP P2PMGMiviGrokster200503017eaglepdf 18 See Brief of Amici Curiae Law Professors in Support of Af rmance Metro GoldwynMayer Studios Inc V Grokster Ltd 127 S Ct 2764 2005 No 04480 available at httpwwwefforgIPP2PMGMiviGrokster 20050301lunneypdf Prof J Glynn Lunney Jr et al Brief of Amici Cu riae Sixty Intellectual Property and Technology Law Professors et al in Support of Respondents MetroGoldwynMayer Studios Inc V Grokster Ltd 127 S Ct 2764 2005 No 04480 available at httpwwwefforgIP P2PMGMiviGrokster200503017techilaw7profs7usacmpdf Prof Pamela Samuelson et al Brief of Amici Curiae Internet Law Faculty in Support of Respondents MetroGoldwynMayer Studios Inc V Grokster Ltd 127 S Ct 2764 2005 No 04480 available at httpwwwefforgIPP2PMGM ViGrokster200503017intemetilaw7profspdf Prof William W Fisher III et al Amicus Brief of Malla Pollack et al Supporting Grokster Metro GoldwynMayer Studios Inc V Grokster Ltd 127 S Ct 2764 2005 No 04480 available at httpwwwefforgIPP2PMGMiviGrokster 200503017mpollackpdf Brief of Professor Edward Lee et al as Amici Cu riae in Support of Respondents MetroGoldwynMayer Studios Inc V tserver roductnCCPY53rlCPY101txt unknown Seq 6 3VOCT705 958 106 Journal Copyright Society of the USA law for long enough that I m still on pretty friendly terms with a bunch of people who disagree with me but I can t tell you how often I ve tried to have a conversation in which I talk about some point somebody s made in his or her work with someone on the opposite side and just run into a brick wall It makes constructive conversation difficult when one can t even stretch one s mind around the concept that soandso who s one of them might have the germ of a ghost of a point There is also a whole new generation of young smart scholars who are trying to carve out a space for themselves in the neglected middle ground These are the peo ple we re going to need to be listening to when we finally decide that we can bear to make peace but right now my impression is that nobody in the copyright bar wants to hear what they re trying to say Indeed we may not be doing such a good job for them ourselves Some of these scholars may be finding the halls of copyright academe a little chilly More important than either the cost or the intellectual divide is the fact that this war has caused real and significant damage to the body of law we ve been fighting over Think of great big elephants trampling all over the grass Some of that damage comes in the form of the expensive illdesigned fortifications I mentioned earlier We don t build them very well in war time We re in too much of a hurry and too eager to load new statutory Grokster Ltd 127 S Ct 2764 2005 No 04480 available at httpwww efforgIPP2PMGMVGrokster20050301ilawiprofspdf Brief of Amicus Curiae Charles Nesson in Support of Res ondents MetroGoldwynMayer Studios V Grokster Ltd 127 S Ct 2764 2005 No 04480 available at httpwwwefforgIPP2PMGMVGrokster20050301nessonpdf This in cludes neither the Creative Commons rief authore by Stanford Law Pro fessor Larry Lessig nor the Free Software Federation Brief authored by Columbia Law Professor Eben Moglen See Brief for Creative Commons as Amicus Curiae in Support of Respondents MetroGoldwynMayer Studios Inc V Grokster Ltd 127 S Ct 2764 2005 Mar 1 2005 No 04480 available at httpwwwefforgIPP2PMGMiviGrokster20050301ccpdf Brief Amici Curiae of the Free Software Foundation and New Yorkers for Fair Use in Support of Respondents MetroGoldwynMayer Studios Inc V Grokster Ltd 127 S Ct 2764 2005 No 04480 available at httpwww efforgIPP2PMGMVGrokster20050301fsfnyfupdf 19 See Brief of Amicus Curiae Law Professors et al in Support of Petitioners MetroGoldwynMayer Studios Inc V Grokster Ltd 127 S Ct 2764 2005 No 04480 available at httpwwwefforgIPP2PMGMiviGrok ster050124ilaweconomicstreatisepdf Prof James Gibson et 211 Brief of Amici Curiae Kenneth Arrow et al MetroGoldwynMayer Studios Inc V Grokster Ltd 127 S Ct 2764 2005 No 04480 available at httpwww efforgIPP2PMGMVGrokster050124Lichtman2pdf Brief of Professor Peter S Menell et al MetroGoldwynMayer Studios Inc V Grokster Ltd 127 S Ct 2764 2005 No 04480 available at httpwwwefforgIP P2PMGMiviGrokster0501257Menellpdf tserver roductnCCPY53rlCPYlOl txt unknown Seq 7 370C105 958 War and Peace 107 provisions up with language to defend us against multiple imagined threats We haven t taken the luxury of enough time to craft legislation so that it will actually be useful rather than pernicious In recent years it has seemed as if negotiations over copyright amendments have lasted long enough to generate language that is long complicated counterintuitive and difficult to understand but not long enough to produce a wellwritten second draft It should surprise none of you that I believe that section 1201 belongs in that category of expensive and poorly designed fortifications20 I think nobody would question the assertion that section 1201 cost a lot of money to build21 And for what As far as I can tell section 1201 has done very little to prevent unlawful copying of copyrighted works The sorts of copy protection and access protection technologies currently in use are simply no barrier to businesses engaged in large scale commercial piracy If you re a consumer who wants to engage in smallscale noncommercial piracyZZ meanwhile doing so is pretty simple DeCSS and programs like it23 are readily available to anyone who wants to copy a motion picture from a DVD Similarly instructions for copying songs from copypro tected CDs are all over the Internet24 What the current copyprotection and accessprotection systems do is make it difficult and unreasonable for consumers who want to play by the rules by introducing maddening and gratuitous incompatibility Someone who wants to subscribe to Napster s allyoucanrent music service or purchase a few tracks from the Real player music store needs to junk her iPod and go out and buy a Rio once she does she won t be able to listen to any of the music she bought from iTunes People who buy DVDs of obscure Japanese movies in Japan dis cover that to play them on a US DVD player they need to tell their DVD player it s Japanese 7 then of course it won t play any of their eXisting American DVDs Not that we haven t seen 1201 in the courts It s just that the cases and controversies at least so far do not have a whole lot to do with copy right infringement Section 1201 has been invoked by a garage door man ufacturer to prevent the sale of replacement garage door openers25 and used by a printer manufacturer in an attempt to prevent the sale of third 20 17 USC 1201 2000 21 See generally Litman supra note 3 at 12250 22 I ve argued elsewhere that piracy is an inappropriate term for this sort of behavior See id at 8486 23 See DeCSS Wikipedia httpenwikipediaorgwikiDeCSS Dave S Touret sky Gallery of CSS Descramblers httpwww2cscmuedudstDeCSS Gallery 24 See eg Mads Haahr Guide to Copying CopyProtected Music CDs revised May 17 2005 httpwwwdsgcstcdiehaahrmcopyingprotectedcds Z5 Chamberlain Group lnc V Skylink Techs 381 F3d 1178 Fed Cir 2004 tserver roductnCCPY53rlCPYlOl txt unknown Seq 8 370C105 958 108 Journal Copyright Society of the USA party printer cartridges26 Section 1201 was the basis for a threat to sue a computer science professor at Princeton for presenting a paper on com puter science research27 and another threat against one of his students to prevent the publication of the paper that revealed that one digital rights management scheme for music on CDs could be defeated by depressing the shift key28 And section 1201 was the basis for arresting and imprison ing a Russian programmer for a program he wrote in Russia that was legal under Russian law29 These are the stories the news media reports30 No wonder the public believes that section 1201 is abusive Nor is section 1201 the only or even the worst offender Section 11431 has become virtually unteachable I still try Last month I sat my ad vanced copyright students down with sections 106 112 114 and 115 and asked them to figure out how to license music for a hypothetical client s podcast32 Anyone who has tried this will tell you that current law makes this especially difficult My students were pretty frustrated Section 114 doesn t seem to be working particularly well either even in the contexts it was intended to address Congress keeps adding pages and pages of provi sions to deal with narrow specific situations in ways that can t be genera 26 LeXmark Int l Inc V Static Control Components lnc 387 F3d 522 6th Cir 2004 27 See Felten V RIAA No 01 CV 2669 DNJ filed June 6 2001 David S Touretsky Free Speech Rights for Programmers COMMUNICATIONS OF THE ACM Aug 1 2001 at 23 Fred Von Lohmann A Failing Grade The DMCA Doesn t Stop Piracy and It Discourages Fair Use lP L amp BUS Jan 21 2003 at 32 28 See Peter K Yu Is AntiPiracy Law Sti ing Cybersecurity Innovation LEGAL IMES Mar 29 2004 at 20 29 See United States V Elcom Ltd 203 F Supp 2d 1111 ND Cal 2002 30 See eg Charles Cooper Rethinking the DMCA cinet Newscom Apr 8 2005 httpnewscomcomRethinkingTMheiMCA2O10 03035659364 html John Schwartz Copyright Was Can Use Some Common Sense MIAMI DAILY BUS REV Apr 21 2004 at 8 31 17 USC 114 2000 32 See Le 7990 Digital Copyright Assignment for March 8 2005 httpwww lawxxmn 1w 1 quot39 l quot htm or 311mm duction to Podcasting see generally Katie Zemike Tired of TiVo Beyond Blogs Podcasts Are Here NY TIMES Feb 19 2005 at 1 Wikipedia Pod casting httpenwikipediaorgwikiPodcasting A podcast is a download able rogram designed for rivate erformance on MP3 la ers or computers ASCAP and BMI have both claimed to offer licenses for Pod casts ASCAP offered licenses to cover Podcasting in early 2005 but later removed any reference to Podcasts from its Web site BMI has recently begun to offer licenses to cover public performance rights if any implicated by podcasts but advises licensees that they will need to seek a ditiona li censes from both music publishers and record labels See BMI and Podcast ing httpbmicomlicensingpodcastingindeXasp tserver roductnCCPY53rlCPYlOl txt unknown Seq 9 3VOCT705 958 War and Peace 109 lized as technology develops33 The section has been amended repeatedly because it failed to address this or that way of delivering music over digital networks The whole conglomeration burdens any digital music perform ance with a host of silly conditions that don t in fact advance the interests of either the composition copyright owner or the sound recording copy right owner But besides the damage done by badly thoughtout or badlywritten amendments there s damage that I think is much more frightening be cause it affects copyright law s core Copyright law has lost the high moral ground Ten or fifteen years ago all of us were wont to bemoan copyright law s obscurity and low profile If only more people would pay attention to copyright Well guess what They re finally paying attention Napster did that34 The Eldred case did that35 The John Doe suits did that36 The only problem is that people aren t paying attention to the stuff we wanted them to see They are looking at copyright through the lens of this war and seeing a pretty unattractive picture37 Copyright law folks are learn ing is what prevents your favorite radio station from publishing its playlist until the neXt day38 It s what prevents Sirius or XM radio from broad casting a whole album39 It s what makes it illegal for people to tell you how to play your Napster music on your iPod or your iTunes music on 33 See Small Webcaster Settlement Act of 2002 Pub L No 107321 116 Stat 2780 2781 2784 Digital Millennium Copyright Act Pub L No 105304 112 Stat 2860 2890 2894 2897 1998 Digital Performance Right in Sound Recordings Act of 1995 Pub L No 10580 111 Stat 1529 1531 34 AampM Records V Napster 239 F3d 1004 9th Cir 2001 AampM Records V Napster 284 F3d 1091 9th Cir 2002 See Jefferson Graham Who s Liable for Actions ofPeople Who Share USA TODAY Mar 29 2005 at 3B Jeffer son Graham Music Industry Files First Wave ofLawsuits Against Swappers USA TODAY Sept 9 2003 at 6D 35 Eldred V Ashcroft 537 US 186 2003 See Allen Pusey Court Protects Mickey Mouse Justices Uphold Law Extending Copyrights for 20 years DALLAS MORNING NEWS Jan 16 2003 at 1D Jesse Walker Copy Cat ght REASON Mar 1 2000 at 24 36 Eig UMG Recordings V Does 1199 CiVil Action No 04093 CKK DDC led Jan 21 2004 See Kathryn R Satter eld Downloaders Face the Mu sic The Recording Industry is Singing the Blues and Suing Music Fans TLME FOR KIDS Sept 19 2003 at 6 37 See eg Robert S Boynton The Tyranny of Copyright NY TLMES Jan 25 2 04 Magazine section a 40 38 See WFNK radio FAQ httpwwwwfnkcomradio Musicchoice Frequently Asked Questions httpwwwmusicchoicecomwhatiweiarefaqshtml 39 See eg Chris Castle Getting a Fair Share of the Digital Pie BoycottRlAA com Dec 19 2003 httpwwwboycottriaacomarticleprint9574 tserver roductnCCPY53rlCPYlOl txt unknown Seq 10 3VOCT705 958 110 Journal Copyright Society of the USA your Rio40 It s what allows the recording industry to sue 12 year old Bri anna LaHara41 Copyright law people are learning is not just or even mostly about getting money to authors and artists so that they can earn a living writing stuff i indeed it seems to do a pretty bad job of that In stead people are hearing that copyright law is about protecting the way big entertainment and information conglomerates do business42 Last week Larry Lessig and Jeff Tweedy came to the New York Public Library to talk about copyright law and the New York Times reported that the line of people waiting to get in stretched around the block43 Copyright law has been hemorrhaging its moral legitimacy The pub lic no longer believes the story of copyright law as a mechanism to allow authors the creative and financial freedom to earn money from their works Now we who do copyright law for a living can tell them that there are some pretty good reasons why authors and artists don t control their own copyrights and why such a small percentage of them make enough money from their works to be able to quit their day jobs and create works of authorship fulltime The fact of the matter is that copyright law in the United States is structured to channel both the economic rewards and the control into the hands of intermediaries i the people who distribute and disseminate copyrighted works 7 because that s where we need to direct the money and control The system relies on intermediaries to be conduits from authors to the people who enjoy their works44 That eats up a lot of money If we ask book publishers or record labels or software publishers to pay their authors more they would all tell us gee we d love to That would be great The trouble is we can t afford to What we do is incredi bly expensive And they re absolutely right about that Being a book publisher or a record label or a motion picture studio is incredibly expensive They don t have any extra money lying around to spend on sweetening what they pay to authors Mass dissemination has always required significant capital investment in office space and printing presses or recording stu dios film cameras or special effects plants in CD stamping plants in sales reps and warehouses and shipping departments and trucks and payola in 40 See eg Hiawatha Bray Apple s Music Operation Hits a Sour Note BOSTON ug 2 at C2 41 See Satter eld supra note 36 42 See eg LAWRENCE LESSIG FREE CULTURE 89 2004 43 David Carr Exploring the Right to Share Mix and Burn NY TIMES Apr 9 2005 at B11 Video and audio archives of the event are available online at httpwilcoworldnetwired 44 See PAUL GOLDSTEIN COPYRIGHT S HIGHWAY 78 1994 Jessica Litman Sharing and Stealing 37 HASTINGS COMM amp ENT LJ 1 24 2004 tserver roductnCCPY53rlCPYlOl txt unknown Seq ll 3VOCT105 958 War and Peace 111 store fronts and publicity departments That s an important reason why US copyright law has channeled the proceeds of copyright into the hands of intermediaries We ve needed copyright as a bribe for the profitmak ing intermediaries who understandably need a business model calculated to produce profits before they make the significant capital investment to become a book publisher or a record label and the intermediaries have been absolutely necessary parties in the distribution chain45 Until recently Now we have the Internet Digital distribution over digital networks is not capitalintensive or at least it need not be When techsavvy consumers look at copyright law the way we re used to doing it what they see looks less like a necessary conduit and more like a bunch of gratuitous barriers III THE IMPLICATIONS FOR PEACE I promised to spend half my time talking about peace I think that making peace this time is going to be hard I understand that nobody is ready yet but I also want to make the point that the longer the war goes on the more difficult and expensive and just plain galling we re liable to find the concessions that we will have to make in order to make peace We ve missed some opportunities to come out of this war relatively cheaply There were a bunch of moments back there when instead of settling the dispute with an enemy on reasonable terms we pressed on seeking total annihilation There was a moment four or five years ago when it would have been possible to settle the Napster case by licensing Napster Napster could have paid a persubscriber permonth fee could have agreed to adjust the fee upward some years down the road if it looked as if the market could bear it Napster could also have agreed that with advance notice it would block identified new hot releases for say a siX to nine month period The recording and music industries would have gained a tame peertopeer sys tem with blocking capability tied to a central server as well as a steady income stream That s a better deal then they are going to be able to take away from this five years later I understand all the reasons why recording companies and music publishers decided that it was unacceptable to settle with Napster on terms that would have left it operating46 By letting that opportunity go by though we ve let the public enjoy peertopeer file sharing for five years The peertopeer systems people are using today are designed in ways that make them much harder to tame I haven t seen any reliable hard numbers but everybody s rough backof thenapkin esti 45 See GOLDSTEIN supra note 44 at 78 46 For one account of some of those reasons see JOSEPH MENN ALL THE RAVE THE RISE AND FALL OF SHAWN FANNING S NAPSTER 223307 2003 tserver roductnCCPY53rlCPYlOl txt unknown Seq 12 3VOCT105 958 112 Journal Copyright Society of the USA mates are that about as many American consumers are trading music over peertopeer file sharing networks as voted for President Bush in 200447 That s a lot of people I think it s going to be really difficult to persuade them to give it up Consumers have gotten used to sharing music They ve gotten used to exercising the sort of creativity and selfexpression that in other contexts we reward with a compilation copyright They get that peertopeer file trading is illegal but not that it s wrong because they no longer believe that the copyright law is well calibrated to divide right from wrong Or think about the choice to sue Michael Robertson s MP3cin into bankruptcy48 Despite Robertson s bad boy image his launch of the My MP3cin Beam it Service looked like he was trying to be a good citizen He purchased performance licenses from ASCAP BMI and SESAC49 he implemented rudimentary access controls to try to limit the service to peo ple who purchased CDs and he relied on the advice of counsel as to what the copyright law required I belong to a listserv of people who teach intellectual property and Internet law and when Beam It showed up the majority of professors on that list insisted that the fair use privilege shielded the copying that Robertson got sued for The judge disagreed holding MP3cin liable for willful infringement and awarding damages ac cordingly50 which forced the liquidation of the company51 Now again I can see why people were angry but they could have reached a settlement calling for modest royalties that would have exceeded anything that s be ing collected today under section 112 for ephemeral copies Choosing to litigate the entire site out of business sent precisely the wrong message to other innovators If you re going to get buried with a stake through your heart even if you purchase a license for what you are doing and try to obey what your lawyers reasonably conclude the law says why even try 47 See eg Electronic Frontier Foundation Let the Music Play Sept 2003 httpwwwefforgshare Xeni Jardin P2P in the Legal Crosshairs WIRED NEWS Mar 15 2004 httpwiredVigwiredcomnewsdigiwood 014126266500html 48 See UMG Recording V MP3com 92 F Supp 2d 349 SDNY 2000 TeeVee Toons V MP3com Inc 134 F Supp 2d 546 SDNY 2001 Zomba Re cording Corp V MP3com Inc 00 CiV 6831 ISR 00 CiV 6833 ISR 2001 US Dist LEXIS 9647 SDNY July 10 2001 Copyrightnet Music Publishing V MP3com 256 F Supp 2d 214 SDNY 2003 49 See Country Rd Music Inc V MP3com Inc 279 F Supp 2d 325 32728 SDNY 2003 50 See UMG Recordings V MP3com Copy L Rep CCH 28141 SDNY Sept 6 2000 51 See Kari Lynn Dean MP3com Loot Hites the Auction Block WIRED NEws Mar 9 2004 httpwiredVigwiredcomnewsculture012846258400html Brad King Lawsuit Could Stunt Online Games WIRED NEWS Apr 12 2002 httpwwwwiredcomnewsgames021015174700html tserver05 roductnCCPY5371CPY101txt unknown Seq 13 3VOCT105 958 War and Peace 113 Proceeding without a license is undeniably risky but seeking to negotiate licenses for a new potentially lucrative market seems both foolish and utile Indeed one problem with drawing statutory privileges and licenses so narrowly that they can t be extended to any novel use or technology is that you offer innovators little choice but to start operating without permission The only other alternative is to track down and negotiate individually with every copyright owner who claims rights in whatever you are doing and without a proof of concept and some investment capital you can t afford the lawyer time to manage the licensing Speaking of investment capital there s the suit against Hummer Win blad52 That sent precisely the chill it was intended to into Silicon Valley All of that may be a fine way to behave if the goal is to be the biggest baddest scariest superpower in the copyright war It does make it more difficult to make peace At this point everyone is feeling besieged and insisting on greater concessions to restore a basic comfort level These sorts of demands are fueling a vicious cycle The specificity of the provisions drawn to defend against last year s threat make them ineffective against today s innovation Some copyright owners have responded by broadening their demands fu eling fear among technology businesses that copyright owners seek radical expansion of contributory and vicarious liability High tech interests for their part have concluded that some copyright owners litigation habit is out of control They are increasingly seeking to codify provisions that would bar copyright owners from suing them53 which makes copyright owners feel as if they are being asked to lay down all of their weapons while the battle is still ongoing54 We are not going to be able to rebuild the law that we re destroying in this war without a great deal of compromise many concessions and a large dose of mutual trust and we ve just spent the past ten years proving to one another that we can t be trusted There s a great deal of mistrust 52 In re Napster Copyright Litigation V Hummer Winblad Venture Partners 343 F Supp 2d 1113 ND Cal 2005 The suit brought by twelve of the plain tiffs in the copyright infringement litigation against Napster alleges that venture capital rm Hummer Winblad and two of its principals should be held vicariously and contributorin liable for the copyright infringement of people who used Napster to exchange music les because of the rm s in vestment in Napster and involvement in its operation 53 See eg Digital Media Consumers Rights Act of 2003 HR 107 108th Cong 5b 2003 54 See eg HR 107 The Digital Media Consumers Rights Act of2003 Hearing Before the Subcomm on Commerce Trade and Consumer Protection of the House Comm on Energy and Commerce 108th Cong 2004 testimony of Jack Valenti Motion Picture Association of America Iserver05 roductnCCPY53rlCPYlOl txt unknown Seq l4 3VOCT705 958 114 Journal Copyright Society of the USA right now and it certainly looks to me as if most of it is richly deserved There s been an inordinate amount of bullying and threats a fair amount overzealous advocacy on all sides that has sometimes crossed the line into bad faith litigation or deceptive lobbying l was not involved in any way in last year s effort to come up with some mutually agreeable language on the lnduce Act55 but watching it from the outside it seemed to me to me to reveal bad faith bargaining or at least willful deafness on the part of everyone involved Now everyone is waiting to see what the Court does in Grokster56 We re all much too revved up though for the Court s decision in Grokster to actually settle anything I was talking last month with a wellrespected academic who pays pretty close attention to what s going on in Washing ton This is someone the majority of folks in this room would probably see as a member of your us rather than my them He told me that lobby ists he knows have made it clear to him that if the motion picture studios are dissatisfied with the Supreme Court s decision in Grokster they are determined to purchase the enactment of the lnduce Act57 whatever it costs them The turn of phrase is his not mine The studios may use the opportunity to open a new front in the copy right war and escalate hostilities or they can try to use the occasion to eXplore detente I m not hopeful Even though I believe that the studios options are more constrained than they may realize I think that peace 55 Senator Hatch introduced the Inducing Infringement of Copyrights Act of 2004 S 2560 108th Cong 2d Sess 2004 on June 22 2004 The bill would have made anyone who aids abets induces or procures infringement lia ble as an infringer if a reasonable person looking at all available informa tion including whether the aiding abetting inducing or procuring activity relies on infringement for its commercial viability would infer that actor intended to aid abet induce or procure infringement The bill was sup ported by the Recording Industry Association of America and bitterly op posed by representatives of the consumer electronics and high technology industries See Protecting Innovation and Art While Preventing Piracy Hearing Before the Senate Comm on the Judiciary 108th Cong 2004 available at httpjudiciarysenategovhearingcfmid1276 At Senator Hatch s request the Copyright Of ce supervised negotiations among stake holders to try to reach a consensus draft Those negotiations failed to pro duce agreement In September the Copyright Office suggested its own compromise language See UNiTED STATES COPYRIGHT OFFICE RECOM MENDATION ON AMENDMENTS To S 2650 2004 available at httpwww copyrightgovdocsS2560pdf The Copyright Of ce version proved even more controversial than the original bill See Katie Dean Senate Shelves Induce Review WIRED NEws Oct 7 2004 httpwiredvigwiredcom newspoliticsO12836525500html 56 MetroGoldwynMayer Studios inc v Grokster Ltd 380 F3d 1154 9th Cir 2004 cert granted 160 L Ed 2d 518 125 S Ct 686 2004 57 See supra note 55 tserver roductnCCPY53rlCPYlOl txt unknown Seq 15 3VOCT105 958 War and Peace 115 may not seem like an attractive choice I predict that copyright owners and their lawyers are going to find peace talks painful The folks they ve cast as their enemies include mainstream consumer electronics and high tech businesses and those interests are going to insist on more concessions and more meaningful assurances than they have in the past or would have even as recently as a year ago and I think they have good reason High technology industry groups were already on their guard after last year s negotiations over the lnduce Act after the position movie studios took in the debate over the Consumer Broadband and Digital Television Promo tion Act58 after the arguments being made in the broadcast flag proceed ing59 and after the lawsuit against HummerWinblad60 They re now even more concerned because of the copyright owners positions in the Grok sZer case61 They will require firm assurance that copyright owners aren t going to insist that they morph into tomorrow s copyright police Moreover even after this is all sorted out among the music industry movie industry recording industry book publishers consumer electronics industry telephone companies and Internet service providers libraries and politicians we aren t going to be done There s the matter of the siXty million or so lohn Does their families and friends It s easy to forget about them both because we ve marginalized them by calling them pi rates and because we have the tools collectively to persuade Congress to pass legislation that the public does not and will not support62 Getting such bills written into law though is a little bit like finding a congenial politician and announcing to the world that he s the new government of Afghanistan If what we re trying to do is affect the public s behavior announcing the solution we ve chosen because it s the one that suits us is unlikely to do the trick We won t be able to enforce it The recording and motion picture industries took a calculated risk when they decided to treat millions of consumer noncombatants as guerilla warriors but the result is 58 S 2048 107th Cong 2002 The bill introduced by Senator Fritz Hollings allegedly at the behest of the Walt Disney Company see Paul Boutin US Prepares to Invade Your Hard Drive SALON Mar 29 2002 available at httpwwwsaloncomtechfeature20020329hollings7bill would have re quired consumer electronics and computer hardware manufacturers to im plement govemmentapproved copy protection technology in their roduc s 59 See Am Library Ass n V FCC 406 F3d 689 DC Cir 2005 60 See supra note 61 See eg Brief of Amici Curiae The Consumer Electronics Association The 6 Mayer Studios Inc V Grokster Ltd 127 S Ct 2764 2005 No 04480 available at httpwwwccianetorgfilingsipGroksteriBriefpdf 62 See Litman supra note 3 at 2232 8486 11117 tserver roductnCCPY5371CPY101txt unknown Seq 16 370C105 958 116 Journal Copyright Society of the USA that millions of consumers now see this war as a war against them Having drawn them into the war it will be necessary to make peace with them too i and that s going to be especially difficult because there s no way to sit them down at the table to negotiate I ve heard some people insist that people who download music with out permission don t care whether it s wrong because they re just thieves They want to get stuff for free and they don t care whom they steal it from I think that picture is of a piece with the rest of the wartime propaganda I ve been talking about I suspect that people who believe that 60plus million consumers who use peer to peer software do so because they re are thieves came to that conclusion in part because they ve been making over broad claims about what copyright law ought to entitle them to control Everything I ve seen persuades me that most consumers want to believe in the idea of copyright if the evidence of copyright they see doesn t clash irreconcilably with their ideals Most of the ones I run into insist that they re willing to pay the authors of works if they are given some reasona ble mechanism for doing so We re still too angry at each other to talk about giving consumers reasonable opportunities to pay for peertopeer file trading63 We can t even see the request to make peertopeer legal as a legitimate one so we don t really grasp how much we need to repair the way that copyright law looks to the people who are asking Just as we as a community missed some opportunities to make peace I think we also missed some chances to make very small changes in the way we do business that would have given the public a different picture of how copyright operates So long as the recording and motion picture industries decided to pursue John Doe suits imagine how much more effectively it would have played as an education tool if the plaintiffs had announced that they would reserve 20 of any settlement to be paid to the performers and composers who created whatever works are listed on Schedule A If the recording industry had done this two years ago I think public support for the John Doe suits would have been significantly higher It sends a very different message to the public if the suits that are supposed brought on behalf of composers and performers actually put a little money in their pockets 63 In the past several years a number of commentators have proposed copyright rms that would permit licensed paid peertopeer le sharing See eg WILLIAM FISHER III PROMISES TO KEEP TECHNOLOGY LAW AND THE FU TURE OF ENTERTAINMENT 1992582004 Daniel Gervais The Price ofSo cial Norms Toward a Liability Regime for FileSharing 12 J INTELL PROP 39 2004 Neil W Netanel Impose a Noncommercial Use Levy to Allow Free PeerloPeer File Sharing 17 HARV J L amp TECH 1 2003 The re sponse of the recording and motion picture industry to all of these propos als has been dismissive See Litman supra note 44 at 3438 tserver roductnCCPY53rlCPYlOl txt unknown Seq l7 3VOCT105 958 War and Peace 117 Indeed since digital distribution is in many ways cheaper than bricks and mortar distribution imagine if some record label had announced that from now on it would pay double the customary performers royalty and double the statutory mechanical royalty for licensed digital downloads That s a feature that makes DRM and incompatibility a little easier to swallow Consumers would know that while they might be getting less music for their money because of the limitations imposed by DRM they would be buying it in a form that puts more money in the musicians pockets lnstead we ve been acting as if we ve forgotten both authors and con sumers in the battles between copyright owning intermediaries and the folks who make digital technology Some people have pinned their hopes on pervasive digital rights management systems64 All these skirmishes some folks say are a delaying tactic designed to buy the copyright law time until we can deploy robust digital rights management to prevent un authorized copying of digital files I don t think it will work For one thing settling on a digital rights scheme is never as easy as it looks like it should be Remember the SDMl initiative65 Second we live in an in creasingly global world It is at least a generation too late to be trying to enforce digital borders That means that as a practical matter we can t make pervasive DRM work unless we convince all of our trading partners to want to adopt it too and there are too many reasons why it s a bad idea Finally open source software is almost ready for prime time There are opensource alternatives to most proprietary programs with pretty good functionality and improving userinterfaces They actually work pretty well Any DRMencumbered device faces potential competition from open source alternatives that eschew the most obnoxious technological protection measures That will limit just how unreasonably any DRM can restrict consumer use of copyrighted works think we have three choices We can accept that 65 million or so consumers will share music and other works of authorship over peerto peer networks whatever the law says and try to deter them with a combi nation of John Doe lawsuits criminal prosecution and well poisoning 7 flooding peertopeer networks with spoofed files and viruses Someone 64 See Consumer Bene ts of Today s Digital Rights Management DRM Systems Hearing Before the Subcommi on Courts the Internet and Intellectual Prop erty of the House Commi on the Judiciary 107th Cong 2002 available at httpjudiciaryhousegovlegacy80031PDF MOTION PICTURE ASSOCIA TION OF AMERICA ONTENT PROTECTION STAUs REPORT 2002 available at httpjudiciarysenategovspecialcontentiprotectionpdf MOTION PICV TURE ASSOCIATION OF AMERICA CONTENT PROTECTION STAUs REPORT 111 2002 available at httpjudiciarysenategovspecialmpaal10702pdf 65 See Secure Digital Music Initiative httpwwwsdmiorg which remains on hiatus See What s New httpwwwsdmiorgwhatsinewhtm tserver roductnCCPY53rlCPYlOl txt unknown Seq l8 3VOCT105 958 118 Journal Copyright Society of the USA is going to get sued for that some day and as a Torts teacher my guess is that the wellpoisoners will lose That s pretty much we re doing now The biggest risk I see with this strategy is that it is likely to cause continu ing damage to the fabric of the copyright law and continuing erosion in public support for it Option two we can give consumers a better legitimate deal than ille gal peertopeer offers There are a bunch of pretty interesting proposals out there but the most plausible ones feature a collective or statutory li cense that allows everyone to engage in peertopeer file sharing but gives them an opportunity to pay for it66 Those proposals are designed in a way that they would probably work pretty well for music and adapting them for books and ebooks wouldn t be difficult It s a little tougher to make them work for software and movies This option also has some sig nificant disadvantages67 It is vulnerable to a host of objections and it would do little to ameliorate the damage that I ve been discussing Its most pressing advantage is that it looks reasonably easy to get there from here Option three is to regain copyright law s moral legitimacy That s my favorite but it s also I think the least likely That s because it s going to require more than public relations It s going to involve some real law reform I don t think we collectively and by we I mean we copyright lawyers have the political will or energy to get involved in significant cop yright law reform What would that take Let s start with the premise that we want cop yright law to give meaningful protection to authors that we want it to encourage the creation and widespread dissemination of lots and lots of works of authorship and that we want it to look legitimate reasonable and fair A substantial and growing segment of the public apparently no longer believes that copyright law is an effective incentive for authors It seems no longer to believe that copyright law is the engine of free eXpres sion that enables us to enjoy a wide variety of works of authorship lt no 66 See Electronic Frontier Foundation A Better Way Forward Voluntary Collec tive Licensing of Music File Sharing Feb 2004 available at httpwwweff orgsharecollectiveiliciwppdf Netanel supra note 63 Fisher supra note 63 Gervais supra note 63 Litman supra note 44 at 3949 67 See Litman supra note 44 at 35 amp n134 Some people oppose any solution based on statutory or collective licenses on what are essentially religious grounds Some of these opponents insist that any unnecessary inroad on the author s control of the exploitation of her work is offensive others com plain that it is unacceptable to allow the government or any government approved entity to set rates for the enjoyment of works of authorship Even those who favor collective blanket or statutory licenses in principle ac knowledge that nearly a century of experience has taught us that collecting license fees is much easier than guring out how to distribute the proceeds tserver roductnCCPY53rlCPYlOl txt unknown Seq 19 3VOCT705 958 War and Peace 119 longer thinks that copyright allows any but a small handful of authors to be compensated fairly for their works The public no longer sees copyright as the mechanism that connects them with authors and their works In creasingly the View of copyright law that more and more people hold is that copyright is a device used by big conglomerates to put up unnecessary and unreasonable barriers between authors and the public The most cop yrightprotective route to a workable lasting peace is to show everyone that that View is wrong But the public isn t dumb Trotting out a stream of entertainers of the week to make public service announcements isn t going to do it68 We can t really convince the public that that View is wrong unless we change the law to make it wrong The copyright story that the public wants to buy into is a story with the author at its center lnitially that might seem odd We think of au thorcentric copyright law as the way they do it in Europe69 But it shouldn t be surprising The romantic idea of the individual creator has a powerful hold on the American imagination Whenever we take up patent law reform lots of people worry how the changes will affect the lone in ventor who creates inventions in his garage70 Those of you who attended the Grokster oral argument or read the transcript probably noticed that the Justices eXpressed concern about how the rule the studios were pro posing would affect the guy in the garage71 The idea of copyright with authors at its center is a very American idea Nonetheless American copyright law long ago pushed authors up stage for a variety of compelling economic reasons72 In a networked dig ital world though many of those reasons have far less force73 And that gives us an opportunity if we have the will to reclaim the moral high ground by taking advantage of the economies of digital distribution to al low copyright to more nearly be about the connection between authors and the public 68 See Patrick Goldstein The Big Picture Hollywood Deals with Piracy a Wary Eye on CDs LA TIMES Sept 9 2003 at E1 69 See eg Edward J Damich The Right ofPersonality A Common 7 Law Basis for the Protection of the Moral Rights ofAuthors 23 GA L REV 1 1988 Jane C Ginsburg A Tale of Two Copyrights Literary Property in Revolu tionary France and America 64 TUL L REV 991 1990 70 See eg Perspectives on Patents Hearing before the Senate Comm on the Judi ciary 109th Cong 2005 testimony of Dean Kamen Inventor 71 See Transcript of Oral Argument MetroGoldwynMayer Studios Inc V Grokster Ltd 127 S Ct 2764 2005 No 04480 Mar 29 2005 availa ble at httpwww 1 WW oral transcripts 04480pdf at 15 remarks of Justice Souter asking about the guy sitting in the garage figuring out whether to invent the iPod or not 72 See Litman supra note 44 a 73 See id Molly Shaffer Van Houweling Distributive Values in Copyright 83 TEX L REV 1535 156366 2005 tserver roductnCCPY53rlCPYlOl txt unknown Seq 20 370C105 958 120 Journal Copyright Society of the USA Certainly it s worth considering whether we d be willing to fashion our copyright law in a more authorcentric mode if it allowed us to recap ture some of the moral legitimacy we ve been losing How Models of authorcentric copyright are all around us Whenever we talk about har monization we focus on harmonizing terms or scope of rights74 but when we make those arguments we need to avert our eyes from the fact that the terms and rights we re trying to import are part of a body of law that s far more authorcentric than US copyright law has ever been75 In a networked digital milieu moreover many of the intermediaries between individual authors and the people who enjoy their work have become optional So one idea that I d like you to take away from this lecture and put in a box somewhere until you feel that peace is a thinkable proposition is that an important step in restoring legitimacy to copyright law is to make it more authorcentric than it has been76 We also need to break our current habit of enacting ultranarrow spe cific privileges tailored to particular licensees and technology but incapa e o generalization77 Innovators who want to innovate and follow the rules should be able to do so We need to stop using the copyright law making process to load the statute up with gratuitous entry barriers Ten years ago Bruce Lehman s White Paper Report recommended a campaign to persuade the public to just say yes to licensing78 The propaganda campaign is only half 7 the less important half 7 of that effort The other 74 See eg Hearing on S 483 Before the Senate Comm on the Judiciary 104th Cong 1995 testimony of Bruce Lehman Commissioner of Patents Wil liam Patry The Failure of the American Copyright System Protecting the Idle Rich 22 NOTRE DAME L REV 907 930 1997 75 See eg Jane C Ginsburg The Concept ofAuthorship in Comparative Copy right Law 52 DEPAUL L REV 1063 2003 76 Members of the Brace Lecture audience pressed me for speci c proposals I haven t included any specific prescriptions here because in today s po larized environment many people skip right to the proposals and decide how to View the other stuff in light of the agenda that the proposals appear to embody My critique of wartime copyright lawyering is independent of any specific copyright reform agenda I believe that the problems I describe affect all copyright lawyers without regard to how they hope the law might evolve in the future Those readers interested in the specific solutions I might advocate can find some discussion of the subject in my previously published work See Litman supra note 3 at 17986 Litman supra note 44 at 3950 77 See Litman supra note 3 at 2269 12250 78 See INTELLECTUAL PROPERTY AND THE NATIONAL INFORMATION INFRA STRUCTURE THE EPORT OF THE WORKING GROUP ON INTELLECTUAL PROPERTY RIGHTS 208 1995 tserver roductnCCPY53rlCPYlOl txt unknown Seq Zl 370C105 958 War and Peace 121 half is to make it easy to get a license and we don t79 We need mecha nisms that not only encourage tomorrow s Napster Grokster amp MP3cin to seek the licenses they need but that actually make it easy for them to get them But that is emphatically not the sort of copyright law we ve gotten in the habit of making And just as we would face a really difficult task in breaking the public of its peertopeer file trading habit we are unlikely to have an easy time weaning ourselves from our addiction to wartime law making That s why I m not hopeful I m afraid that we probably can t get there from here That leaves us with a choice between door number one more of the same and door number two a new collective or statutory license which will solve a narrow problem for a short time Neither one seems to me to be likely to reverse the damage caused by the copyright war and neither one looks like a viable strategy for addressing the new problems that will inevitably arise I wish I had a more optimistic assessment So what should we do about all this Well as I said none of us is ready yet to end the copyright war So let s all go back to our offices You can tell your colleagues that I said a bunch of silly things or for that matter just forget everything I said for now We ll wait to see what the Supreme Court has to say in Grokster Early neXt fall when the lobbying season opens we can watch Senators and Representatives promise to put some copyright bill or other on the fast track and then we can watch nego tiations bog down and somewhere in there Joe Beard will mail you an issue of the Journal of the Copyrght Society that reprints this lecture And when that happens I d ask you to riffle through the pages if only to remind yourself of how wrong I was And just maybe by then we ll all be more nearly ready to think about peace 79 See Litman supra note 44 at 1323 Lydia Pallas Loren Untangling the Web of Music Copyrights 53 CASE W RES L REV 673 2003 John Dewey Lecture Ginsberg Center University of Michigan February 20 2006 Academics and Urban School Reform A Hopeful Reading February 15 2006 John Dewey Lecture University of Michigan Charles Payne Professor and Bass Fellow African American Studies History and Sociology Duke University Do not quote or cite without permission It isn t that they can t see the solution It is that they can t see the problem GK Chesterton I have been accused more than once of being pessimistic in the way I think about urban schooling I have been deeply stung by these criticisms and I would like to redeem myself this evening I would like to say something positive something guardedly hopeful about that subject or more speci cally about what the academy has to contribute to resolving some of the problems of out urban schools There will be three parts to this opera In the first I want to say something about ways in which I think the relevant research is getting better Then I want to talk some about academics going into schools as practitioners and about some of the instances of that from which I have learned most recently and then I want to make a few comments about a recent trip I took to New Orleans with some colleagues to try to get a handle on what is happening with the schools there While some of what I m talking about can be called a form of activism I am going to try to avoid the term Activism for people on the left politically serves the role that patriotism serves for those on the right It induces brainlock The term is so laden with moral baggage that it is not clear when it simply describes and when it operates as claim to elevated moral status I plan to start a campaign to revive the use of the term social action the term Ella Baker used to describe her work which could mean anything from tutoring to storming the barricades with no implication that one is more important than the other Just so I don t seem pollyannish let me note that the longstanding problems with making educational research usable still stand The research tends not to be authoritative it doesn t re ect the epistemologies of teachers 7 they may understand truth in ways which negate our understanding the causal metaphor which still dominates research may be a dubious guide for making change many practitioners don t see research as relevant to their lives there is a lack of sense of urgency in the research community people continue to hope fondly that a series of disconnected studies will one day in the great by and by add up to an answer Again I am not talking about that today I will say this however I have begun to wonder of late about whether or not there isn t some kind of disconnect between k 12 teachers and university faculty around the problem of discipline We ask K12 teachers what we can do to help Often they say discipline disciplinediscipline help us figure out how to get these kids to sit down And we say no really what can we do to help Researchers keep talking about instruction and governance and school structure We tell teachers that if they just teach better discipline problems will abate We 7 and I am certainly among the guilty 7 seem unwilling to listen to teachers when they state their priorities and so we wind up imposing our ideological boxes on them That s a problem I have only become aware of recently but I am not here to talk about problems I am here to be optimistic In many respects educational research on urban schools took some giant steps in the 1990s The literature on the power of professional development especially for poor children is becoming very persuasive and one day somebody s going to read it Somebody did read the research on small schools and that research played a major role in helping legitimate that model now being implemented at breakneck speed in many cities Slowly more schools seem to be using data on their own schools There is a very salutatory trend toward studying successful districts not successful schools To come to the pointI will stress this evening we are witnessing a revival of interest in issues of social capital not just as a characteristic of individuals but as characteristic of organizations Let me take some time to eXplain that last point Part One 7 Research One of the most important themes in the body of work being developed by the Consortium on Chicago School Research is the salience of social capital for both individual students and the larger school community In some of their early field studies it became evident that the quality of relationships among adults determined much of what did or did not happen in schools This led to a series of studies In one of them the Consortium surveyed staff at 210 schools in an attempt to identify those characteristics shared by schools that were getting better When the 30 most highlyrated schools were compared with the 30 poorest a battery of questions about the quality of relationships proved to be one of the best predictors While teachers almost unanimously agreed that relationships with their colleagues were cordial that did not always mean they respected or trusted one another Forty percent of teachers disagreed with the statement Teachers in this school trust each other How teachers in a given school felt about that correlated very well with whether the school was improving or stagnating Speci cally the degree to which teachers trusted one another correlated well with whether the school was improving or stagnating Social trust is a highly signi cant factor In fact it may well be that social trust is the key factor associated with improving schools Teachers in the top 30 schools generally sense a great deal of respect from other teachers indicating that they respect other teachers who take the lead in school improvement efforts and feel comfortable eXpressing their worries and concerns with colleagues In contrast in the bottom 30 schools teachers eXplicitly state that they do not trust each other They believe that only half of the teachers in the school really care about each other and they perceive limited respect from their colleagues There were similar patterns in terms of teacherparent trust In the bottom 30 schools teachers perceive much less respect from parents and report that only about half of their colleagues really care about the local community and feel supported by parents Both quotes from Sebring Bryk and Easton 1995 p 61 As suggestive as these findings are they are only correlational If this were all we had one could reasonably argue that the absence of trust is as much a reaction to school failure as a cause of it Subsequently Anthony Bryk and Barbara Schneider 2002 published a more compleX analysis of what they call relational trust The scale for teacherteacher trust included the following items How many teachers in this school really care about each other Teachers in this school trust each other It s ok in this school to discuss feelings worries and frustrations with other teachers Teachers respect other teachers who take the lead in school improvement e orts Teachers at this school respect those colleagues who are expert at their craft To what extent do you feel respected by other teachers The scale for teacherprincipal trust included It s 0k in this school to discuss feelings worries and frustrations with the principal The principal looks out for the personal welfare of the faculty members I trust the principal at his or her word The principal at this school is an e ective manager who makes the school run smoothly T he principal places the needs of children ahead of her personal and political interests The principal has confidence in the expertise of teachers The principal takes a personal interest in the professional development of teachers I really respect my principal as an educator To what extent do you feel respected by your principal Thus relational trust is a multidimensional concept involving issues of respect integrity personal regard and con dence It is more a way to think about the quality of social relationships generally than a way of thinking about trust narrowly The sheer concentration of distrust in some schools then is all the more disturbing In 1997 in the bottomquartile schools over 60 of teachers reported having no or minimal trust in their colleagues compared to about 25 in the topquartile schools which on the face of it might be regarded as a pretty high gure in its own right Bottomquartile teachers actually trusted their principals a little more than they trusted their colleagues only 51 of teachers are in the two lowest trust categories visavis the principal By contrast in topquartile schools a whopping 88 of teachers eXpress strong or very strong trust in their principal The most interesting results come from looking at improving and nonimproving schools over time using a composite trust measure In 1991 the schools which would eventually be identi ed as improving a quality of school relations only slightly better than schools By 1994 they had much higher levels of trust and after that they began to take off academically by 1997 schools that had had weak trust reports in 1994 had less than a 15 chance of being among the system s improving schools Schools that had had strong trust reports in 1994 did almost three times as well By 1997 they had a 50 chance of being in the improving group in both reading and mathematics In addition schools with weak trust reports in both 1994 and 1997 had virtually no chance of showing improvement in either reading or mathematics p 111 High quality human relationships probably don t guarantee anything except that people will have a better time at work but they are strongly predictive of whether or not a school can gather itself together to get better When one controls statistically for the usual suspects 7 racial and class composition of the student body stability of student body school size teacher credentials and eXperience and concentration of poverty in the neighborhood the relationship between trust and school improvement remains strong The problems of trust are one part of a larger problem of insuf cient social capital in our worst schools Such schools frequently lack a sense of common purpose shared norms continuity of relationships effective ows of information traditions of leadership legitimacy problem solving mechanisms Which makes the simplest interactions fraught With peril Figure 1 summarizes some of the ways these social def1ciencies commonly eXpress themselves in bottomtier schools Figure 1 Social Barriers to School Change Lack of social comfort among parents teachers and administrators Low mutual eXpectations Predisposition to suspicion of quotoutsidersquot Generalized belief in program failure I ve seen programs come I ve seen programs go Distrust of Colleagues the Principle of Negative Interpretation Tensions pertaining to race ethnicity age cohort predisposition to factions Generalized anger consequent Withdrawal as major coping strategy quotHappy Talkquot culture tendency to put the best face on everything Poor internal communications Institutional inability to learn from eXperience intensif1ed by a tendency to particularize to treat one s school as if it were unique making the experience of all other schools irrelevant Ego fragility touchiness emotional fatigue Disproportionate leverage for the most negative teachers Inability of teachers to share professional information If we look speci cally at classrooms what difference does social capital make Potentially a very large one One Consortium study Lee Smith Perry amp Smylie 1999 addresses the ancient debate between advocates of social support for children and advocates of academic pressure The first approach focuses on strengthening social relationships among students and adults in and out of school Its logic suggests that students will learn more in settings in which they are well known and cared for and in which their social and emotional development is supported The second emphasizes rigor and accountability Its logic holds that students will achieve more when what they are supposed to learn is made clear when eXpectations for academic learning are high and when they are held accountable for their performance p 5 Both positions should be thought of as social capital arguments Being in a set of relationships that exert an appropriate level of demand should generally be an advantage This is an argument over which kind of social capital matters most The study surveyed 28 000 Chicago 6th and 8th graders and more than 5000 teachers in 304 elementary and middle schools To measure social support from teachers students were asked whether their English and math teachers Relate the subject to their personal interests which of course implies that teachers know what students are interested in Really listen to what they say Know them very well Believe they can do well in school To assess support from parents students were asked how often their parents or other adults in their household Discuss school events and or events of interest to the student Help with homework Discuss with them things they had studied in class Discuss homework with them To assess social support from peers students were asked whether most students in their classes Treat each other with respect Work together to solve problems Help each other learn Perceived community support was measured only among 8th grade students who were asked the extent of their agreement that If there is a problem in the neighborhood neighbors get together to fiX it People in the neighborhood can be trusted Adults in the neighborhood can be counted on to see that children are safe and don t get into trouble There are adults in the neighborhood whom children can look up to Neighborhood adults know who the local children are Academic press as the study calls it was measured by both teacher reports and student reports The questions asked of teachers included whether their schools Set high standards for academic performance Organize the school day to maXimize student learning Focus on what is best for student learning when making important decisions The questions for assessing student perception of academic press asked students whether their English and math teachers Expect them to do their best all the time Expect them to complete their homework every night Think it is very important that they do well in that class Encourage them to do extra work when they don t understand something It turns out that both of the contending camps are right With student background characteristics controlled including gender race ethnicity mobility previous achievement and educational resources of the family social support and academic press were each signi cantly associated with academic achievement In reading students with the lowest levels of social support improved 056 Grade Equivalents 56 months in a year a very common rate of progress in urban schools Students with the highest levels of social support improved 142 GE s close to a full year s additional growth In schools where academic press was low reading achievement improved 057 GE s but where press was high reading achievement improved an average of 137 GE s The most important nding of the study however was that schools in which students experience high levels of both support and press do much better than schools which are high on only one or the other In reading children experiencing the low levels of both support and press averaged a gain of 056 GE s in reading but students exposed to high levels of both improved 182 GE s The numbers in math were even more pronounced While low support low press students improved 063 GE s high press high support students improved an eyepopping 239 GE s These would be impressive numbers under any circumstances but they are even more impressive considering the population under study 7 6th and 8th graders By that age many students have essentially given up on schools and schools have given up on many of them The students who most need supportive and demanding environments are unsurprisingly least likely to experience them Integrated schools are three times as likely to offer both strong support and strong press as predominately African American or Hispanic schools schools with smaller numbers of lowincome students less than 36 are four times as likely to offer both as schools with high more than 91 numbers of low income students This is the kind of study where the results may seem selfevident once they are obtained There is a temptation to say Well of course young people need both Nevertheless we could not have anticipated the magnitude of the impact If we can substantially increase social support and academic press we have grounds to hope for a major payoff and it may make more sense to try to do that than to continue to try to throw programs at schools which ignore the social climate of classrooms Unfortunately much of the national policy debate continues to be framed in eitheror terms with many politicians continuing to see nothing but standards and sanctions while many educators resist putting pressure on students At the moment the higher standards position is very much in the ascendency although it may be that it doesn t matter that much which side prevails Until we shape policies that speak to both sides of the issue we may be unable to help youngsters reach their full potential The lesson then is that social capital matters in both the classroom and the school as a whole Given that about what percentage of schools in Chicago might be thought to have severe de cits in social capital The best available data come from the 211 schools of the Chicago Annenberg Challenge a sample in which high schools are somewhat underrepresented but in which the elementary schools have demographic and achievement levels that almost exactly match the city as a whole Those data tell us that according to 1997 surveys of teachers about a quarter of the schools reported minimal principal support for change about the same proportion as reported that their principal worked to create a sense of community and that they had limited cooperation among teachers Onethird of schools reported a weak focus on student learning and a little more than a third reported weaknesses of joint problemsolving When we consider trust the number of problematic schools goes up dramatically Fortytwo percent of schools report minimal trust between teachers and parents but a full 52 report no or minimal trust among teachers Sconzert Smylie amp Wenzel 2004 pp 1516 0 Considering that schools had already gotten better by 1997 that having a proportionate number of high schools would almost certainly have made the numbers more negative and that lack of trust among teachers seems likely to undermine most change initiatives all by itself it is probably conservative to say that between a third and a half of all Chicago schools had signi cant problems in their social webbing We can be quite sure that most reform efforts during the 1990s in Chicago and elsewhere underestimated the salience of these issues assuming a social and organizational infrastructure which just does not eXist in our toughest schools Much of the energy we have invested in finding just the right program would have been better spent trying to figure out how to build a social environment that would give whatever program a fighting chance A weak social capital base means that conservatives are right when they say that financial resources are likely to be wasted in such environments although many conservatives misunderstand the reason It means that eXpertise coming from outside the building is likely to be rejected on its face It means that the most wellthought out programs can be undermined by the factionalized character of teacher life or by strong norms which militate against teacher collaboration The weak social base also means that such schools are unlikely to learn from experience It is difficult to learn from people whom one does not respect Thus schools will do something wrong this year and do it wrong exactly the same way next year If we learned nothing else from the last decade of botched reform efforts we should have learned that PART II iAcademics in Harness While we academics atter ourselves that our contribution to schools lies in expertise I sometimes think we do more good in our roles as citizens or practitioners When academics do go into schools as citizens or practitioners they bring capital that people in schools often lack 7 access to the in uential access to resources freedom from the restrictions of the school bureaucracy the capacity to move faster in certain ways In Durham it means something to teachers thatI can buy a class set of books say without doing any arduous paperwork beforehand We are often able to say things publicly that teachers or principals would like to say and cannot There is no doubt that playing those roles can improve our research Some years ago I decided that I was tired of lecturing on Durkheim and wanted to take a year off to put together some kind of educational program for urban youngsters that led to my becoming the director of a program in Newark the Oranges which tried to interest adolescents in science and math careers It never occurred to me that a year at the outside two might not be enough to create a quality program out of whole cloth Everything took far longer than I anticipated of course My motto in those years became the things you have to do to keep your organization alive contradict your reasons for wanting to be a part of the organization I left after five years and while we doing some pretty good work I m not sure I ever reached the level of work I thought could be reached in a year or two I was too busy in those days to think analytically about what I was going through but I learned to assume that every step in the process of program building would bring unanticipated problems most of the more political than educational You never saw all the alligators in the swamp until you were in the middle of it Shortly thereafter I found myself in Chicago just as school reform was getting off the ground and I found myself at odds with many in the school reform community who believed that once they were in charge things were going to change quickly Many of the people who wrote into the reform law that the city was going to reach national averages in five years were quite serious Still staggering from New Jersey I knew that was wrong although I could not have said then why I thought it was wrong Trying to figure out a way to say as an academic what I knew as a practitioner has shaped my research for the last decade or more Similarly when the Consortium on Chicago School Research began its work in the early 90s it organized its thinking around what it called the Five Essential Supports for student learning Talk about hubris Essential There s a word social scientists should be loathe to use It s an ideological label not a finding Fifteen years later it turns out that some of the schools that have improved do so in ways consistent with the five essential supports and some have not At the same time the Consortium has functioned at a group of practitioners running the Center for School Improvement which put them in charge of 2 elementary schools that they tried to improve using the Five Essential Supports After ten years those schools were sort of ok better than the surrounding schools but hardly models despite having access to more resources than most Chicago schools The Consortium is much more exible in its thinking now and I think part of the change has to do with the fact that they have learned how hard it is to put their ideas into practice even when they themselves are the practitioners I think their best work is ahead of them partly for this reason Like the people at the Consortium I played both kinds of roles in Chicago sometimes a researcher sometimes a practitioner citizen With the Algebra Project I was on the organizing committee for example while with the Comer project I was trying to document the process of implementation Those are very different kinds of programs one centered on pedagogy the other on relationships Nevertheless at the school level they ran into very similar kinds of problems which ultimately led me to decide that the question which dominated my thinking at that time What s the best program 7 is a weak question I should have been asking something like given the nature of the social organizational and political environment how do you implement and stabilize any program I was saying that both sides can bene t from situations in which academics play a direct role in schools and communities Unfortunately each side brings baggage to the table that makes it difficult to establish functioning relationships Academics are knowit alls often indifferent to the constraints under which teachers operate often poor communicators with people outside their fields Teachers are too often suspicious of the folk who come down from the Big House resentful of the fact that we are more privileged than they This is part of the reason why in prereform Chicago university people had a hard time getting into schools In Durham I have been watching this dance for three or four years in a couple of contexts one being the Duke Curriculum Project that involves Duke faculty mostly in the humanities and social sciences providing content workshops for K12 teachers This started in part because some black teachers in the public school system saying that many of their colleagues didn t know anything about race and the University should do something about that While we still focus on race and ethnicity to a considerable degree we pretty much try to look for resources in any area the teachers ask Last year we offered workshops on African American poetry the slave trade the civil rights movement hiphop Richard Wright Toni Morrison Middle East tensions and Japanese history We got a small selfselected group of teachers coming right away Last year we started using the system s staff development days so that teachers had to come and we had to confront the great unwashed True to form many of them showed with plenty of attitude doing their grading during the workshop and the like We worked through that very quickly and teachers got to a point where they actually enjoyed the workshops by all indications and asked for more of them The limitations of this structure are that we don t systematically create ongoing relationships between DPS teachers and Duke faculty which would be more powerful model Another limitation is the time to do it Durham s teacher culture is staunchly antiprofessional development they don t see it as the solution to any problem they have They means the teachers and administrators Staff development has been reduced to a day and a half a year for most teachers and much of that time is eaten up by administrivia The value of this for me has been watching a group of teachers especially secondary teachers become invested again in their own growth and be reminded if that is the word that they like and need intellectual challenge Part III New Orleans The schools of New Orleans were a mess before Katrina and the potstorm politics made a bad situation worse For the last several months I have been a member of an ad hoc group called the Coalition for Quality Education in New Orleans a group that came together out of concern for the future of education in that city in the wake of Katrina It consists of educators from around the country and from New Orleans itself Lisa Delpit Theresa Perry Gloria Ladson Billings Tim Knowles Irving Hamer Warren Simmons among others The New Orleans AFT is involved and a number of community groups We think of ourselves as the people s consulting firm We are trying to figure out how people from the outside can contribute to the reconstruction of the school system We are also very concerned that local people have real voice in planning the future of the system As things are currently constituted it is not clear that that will happen I spent a few days in New Orleans at the beginning of the month and came away with a sense of both a micro story and a macro story I had not thought about what it would have meant to be a high school senior along the Gulf Coast this year It essentially meant that your senior year was taken away from you 7 no time to plan to visit schools spending part of the year in some other school district coming back to system in chaos going to class from seven in the morning till 4 in the afternoon from now through early August Hardly the kind of senior year that kids look forward to The committee spent one morning talking to a group of high school seniors angry young people still seething over what they had gone through Most of the bitterness seemed reserved for the way they were treated in the other districts to which they had been dispersed Whether they went to Houston or Atlanta they were treated by both students and teachers as the unwanted guests Their accents were mocked People assumed they weren t intelligent Male athletes of course were more warmly welcomed but the ones we talked to recognized that for what it was Many families could not nd the nancial records they needed for college applications and many students had trouble getting records from the schools they attended while in eXile A number of students are going to have to delay college Some have changed their college plans after this year they don t want to be separated from their families again so they will be going to school closer to home than they had planned At the macro level there is a clear story about institutional privilege in the context of disaster large institutions are able to push agendas in ways that would not be possible in normal times since the normal opposition isn t around For the Catholic archdiocese the storm meant an opportunity to close many inner city schools something they have wanted to do for some time largely for economic reasons They could save money by moving toward some sort of regional structure The problem with that from the community level is that those schools are an important part of many inner city communities some neighborhoods are almost de ned by the local Catholic schools they are important repositories of local memory and pride and serve a largely working class population One community organizer remarked that the state of Louisiana has long had an agenda they wanted to get rid of black people labor unions and the New Orleans Board of Education and Katrina gave them the chance to do if all in one shot That may sound harsh but it s not inconsistent with what we know PreKatrina the city operated ll7 schools serving 65000 children 90 percent of them African American It was a truly dysfunctional system described thusly a few months before the storm Dozens of employees indicted or convicted on corruption charges Tens of millions of dollars unaccounted for Eight superintendents in seven years Rock bottom test scores Shootings sirens and police officers often The threat of bankruptcy and bounced checks constantly Nossiter 2005 p A5 Nevertheless the 20045 school year if judged by performance on state tests was the best the system has had since the current testing program was started Nevertheless Katrina gave the state grounds for dismantling the school system which meant that the state assumed control of all but about 1520 of the systems schools stripped the school board of most of its authority f1red most teachers and abrogated the collective bargaining agreement Depending on how many people return to the city the state could wind up running anywhere from 70 to just over a hundred schools except it won t really be the state running them The state controlled schools will be run as free standing charters Charter schools have been a popular idea for several years but nothing on this scale has ever been attempted and there is no evidence that charters as ordinarily implemented perform better than traditional public schools Nevertheless some of us have worked with or studied some exemplary charters and on that basis we believe they can be a significant part of the solution if carefully implemented and wellsupported They should not be regarded as a solution in themselves however they can create new problems even as they alleviate some of the old ones Fired teachers can reapply to the individual schools but they can usually expect to find lower salaries The great advantage of the system is that parents can shop for schools The other side of it is that schools don t have to take children they don t want It is a system which virtually guarantees stratification There is not incentive for schools to take the neediest children Given everything we know about the history of urban systems this is likely to lead to a caste system one set of schools for the privileged and another for the poor Tulane has already been given a charter to run a school at public eXpense that will serve primarily the children of Tulane faculty Special needs children are already nding themselves waitlisted at the few schools that are open Given the history of the state it is entirely possible that the dominant story could become one a fairly straightforward story of in uence peddling and carpetbagging and just unwise use of resources Large contracts are being let again during a time when there is even less public oversight than usual Educational consultants apparently with more connections that relevant eXperience seem to be springing up from the banks of the Mississippi offering services to the schools which for the most part means to the state of Louisiana which means the process will be even more difficult for local people to in uence The Boston Consulting Group seems to be playing a major role in the planning and they seem quite unencumbered of any real eXperience with inner city schools From a business standpoint Katrina may prove to be the best thing to hit the South since urban renewal In this context the committee has been evaluating some of the plans for reconstruction of the system we hope to be involved in developing curriculum for some schools we are looking for ways to ensure more equity in the decisionmaking process right now and in the kind of education that will be available later To be honest if may be too late to do anything about the latter Too many deals have already been cut If nothing else though we can raise the hue and cry Americans would be appalled by some of what is happening in New Orleans and we can see that the word gets out Again a national committee of academics can access the national media more easily than parent and community groups and we can use that access to allow such groups to put out whatever messages seem most valuable to them I will close with that I think I have a visceral understanding of how hard it is to change schools but I have tried this afternoon to emphasize some of the reasons to remain hopeful I have tried to say two things primarily First although it has been long in coming research on urban schools is getting better bringing us closer I hope to being able to ameliorate some of the evils of those schools Second in our role as citizens we bring certain kinds of capital that others may not ordinarily have access to and at least in some of the places I hang out I think academics are beginning ijust beginning mind you 7 to learn how to use that capital effectively REFERENCES Bryk Anthony and Barbara L Schneider Trust in Schools A Core Resource for Improvement New York Rusell Sage Publishers 2003 Lee Valerie Julia B Smith Tamara E Perry and Mark A Smylie Social Support Academic Press and StudentAchievement A View from the Middle Grades in Chicago Chicago Chicago Consortium on School Reform 1999


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