A Lesson from the Copyright Wars

Challenges on the Horizon for Scholarly Attribution
This essay explores how new tools demand that educators rethink the goals and effects of policies that prescribe originality in scholarship. The example of appropriation in art, and the conflict between appropriation and copyright law, will not only suggest how new tools can allow individuals to overcome limitations of policy to a productive end, but how we may value originality differently as a result of technological change.
"Any text is woven entirely with citations, references, echoes, cultural languages, which cut across it through and through in a vast stereophony. The citations that go to make up a text are anonymous, untraceable, and yet already read; they are quotations without inverted commas. The kernel, the soul—let us go further and say the substance, the bulk, the actual and valuable material of all human utterances—is plagiarism.
For substantially all ideas are secondhand, consciously and unconsciously drawn from a million outside sources, and daily used by the garnerer with a pride and satisfaction born of the superstition that he originated them; whereas there is not a rag of originality about them anywhere except the little discoloration they get from his mental and moral caliber and his temperament, and which is revealed in characteristics of phrasing. Old and new make the warp and woof of every moment. There is no thread that is not a twist of these two strands. By necessity, by proclivity, and by delight, we all quote... Artists and writers—and our advocates, our guilds and agents—too often subscribe to implicit claims of originality that do injury to these truths."
The Problem of Originality
What do we want from creative works?
Originality is a powerful legal concept in the arena of intellectual property, helping to clarify the matter of ownership over creative works. It is also a powerful philosophical ideal. It has helped philosophers better explain matters pertaining to aesthetics, for example, such as how artworks are made that appear to have no precedent, yet appeal to our taste as beautiful objects. And this, in turn, has reinforced the notion of originality as a principle of creative ownership.

But what about the matter of appropriation, collage, bricolage, pastiche, quoting, recombination, and all other sorts of using existing material in creative and fruitful ways? These methods, when deployed in creative work, seem to stand in opposition to the notion of originality, or at the very least problematize the status of a creative work that is constituted from such processes. As Lethem describes in the passage above, in a very real sense, everything we make comes from the cultural milieu in which we live and work. He goes so far as to suggest that "the bulk... of human utterances" are the result of plagiarism. How should educators understand and make sense of this? Understood in a non-literal way, his view represents a weak claim – a toothless rendition of the adage, "everything has been said before." But if we take Lethem literally, then it is a strong claim with which scholars, educators, and thinkers of all kinds must reckon – for it is, after all (so the mantra goes), every teacher's responsibility cultivate every student as an independent, reflective, and critical thinker. And isn't our teacher is likely to face, caught between educational institutions on the one hand and fast-growing, busy, self-involved persons on the other, an onslaught of plagiarism?

The truth probably lies somewhere in between the weak and strong claims, so described. But, as I suggest in this essay, we should become more accustomed to the strong claim. New tools (digital tools in particular) are empowering creators of all kinds to become more powerful plagiarists, not only in the sense that they can modify and use existing works to create derivative works faster than ever before, but also in the sense that they can "steal" ideas – undermining the value of authorship as perhaps those who hold fast to the concept of originality fear.

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There is worse news still: the problem of combating plagiarism is even worse than the problem of combating copyright violations.[4] Copyright law – intellectual property law in the area of artistic and textual production – was created to protect authors and creators of all kinds. Compared to an act of violating copyright, plagiarism denotes an intellectual act of passing someone else's ideas off as one's own. Acts of plagiarism often cannot be prosecuted in the same manner as copyright infringement (though, to be sure, copyright infringement isalways an act of plagiarism), and indeed, there are entirely different institutions in which to do so – namely, academic institutions. A clear example here is of a writer who has unknowingly written a passage that is extremely similar to, but not employing the same words as, an existing text. Anti-plagiarism policies would have it that the writer in question is guilty – not of "stealing" the passage outright (as in a violation of copyright), but of at least being ignorant of the existence of the original text and its meaning. (The significance of plagiarism is certainly heightened in nonfiction writing, especially when the ideas in question is part of a larger analysis.)

Plagiarism, in this way, can pertain to ideas, and not merely words. Since it is extremely difficult to prove that an idea is anything other than one's own (it is, after all, no small principle of democratic education that people can share ideas), no prudent legal system would create laws governing plagiarism that they cannot enforce. But academic institutions have a different role to play and different ideals to defend, and the act of acknowledging one's intellectual fore-bearers is as old as the academy itself.[5]

Scholarly attribution (or "citation") is the primary means of respecting authorship in academic culture, and as such, the primary mechanism of control in the realm of plagiarism – an explicit acknowledgment of a lineage of thought. In some ways, its dominance (and many manifestations) in academic culture parallel the success of the commoditization of permissions in the realm of copyright. Other mechanisms of control (such as limiting the duration of quotations) also appear in academic honesty policies, which I will discuss in more detail below, but attribution is distinctly a matter of scholarship – the only legal equivalent is "attribution" itself, when stipulated for permission to use copyrighted materials. Attribution, in this way, can be stipulated across academic and commercial contexts to document ownership – legal ownership on the one hand, and a kind of "intellectual ownership" on the other.

In the case of copyright, attribution most often resolves the matter of ownership when financial value is at stake. In the case of scholarship, it could be said that attribution also allows us to better understand the meaning of scholarship, and therefore, contributes to the role of scholarship as knowledge. Scholars, the logic seems to go, are better able to seek new truths and new knowledge if they are better able to understand an unfolding history of ideas. A look at contemporary academic practice, however, shows such a rationale to be a hopeful articulation of the aims of scholarship at best. Instead, it seems to be diluted by at least two forces: the monetization of scholarship and a petty insistence on originality – forces that not only seem to reinforce each other, but that become further reified by the elevation of copyright in the popular imagination.

Conceptually, plagiarism is rife with an adherence to the belief that originality is inherently valuable, and it's not hard to imagine reasons why. Perhaps the emergence of originality as an important criteria for scholarship can be understood as one facet of the rise of scholarship as a valued, industrious activity from the Middle Ages through the Enlightenment to today. The more we value the outcomes of scholarship, the more it seems we desire to support scholars. Financial support is a powerful incentive, and so it is convenient (one might imagine) that society created policies to create a system of value for intellectual property. This is, of course, to speak of scholarship in a very broad way, but it is useful to see how academic work in general is one kind of "creative work" that copyright law pertains to.

But the business of scholarship gets far more complicated. While academic work is different from other kinds of creative work (such as creating a work of art or publishing a work of fiction), it is also not simply a uniform set of processes and products – for it can be said to include creating works of art or publishing works of fiction. So, with respect to academic institutions, there is at least one spectrum of work, running from work that is onlyconsidered academic on the one hand, to work that is more rarely considered academic on the other. We could refer to this first kind of work as "true scholarship," but scholarship so defined will not be a uniform set of processes and products either – as we know, there is both good and bad scholarship. So, for example, in defining scholarship as a special class of creative work, it may also be useful to define a spectrum along which such work is either the product of advanced scholarship, or a product of novice scholarship.

This additional definitional trouble points to a fact that will make any reconciliation of scholarship as constituted by both ideas (Lethem's "warp and woof") and originality (the hard-won fruits of real labor) – and the relation between the two – more difficult yet. To wit: academic institutions (the purveyors of plagiarism-related justice) are also usually educational institutions.[1] As a result, there has perhaps been an intermingling of educational and scholarly ideals – especially the ideal of originality, which may or may not have the same significance in both contexts.

The purpose of this essay is to begin the work of disentangling different aims of academic work, and to see how both education and scholarship might change as a result. In section one, I look at how learners in particular are confronted with the problem of originality. The following sections explore the matter of change in cultural practices outpacing social institutions, and specifically, the case of appropriation in the visual arts. I then look to the conflict between appropriation in art and copyright law, and discuss how Creative Commons serves as a model for resolving tensions between new technologies and existing policies. A closer look at how and why artists resist policies that restrict appropriation may provide clues for how academic institutions (and scholars, educators, and thinkers of all kinds) can arrive at a new understanding of originality – and better balance the goals of knowledge production and education.

What are the goals of attribution?
Academic work is diverse, ranging from the study of poetry to the particle physics, and scholarship is no less diverse (though, arguably, it refers to a “humanistic” domain rather than a “scientific” one). Many methodologies fall under the banner of scholarship, and there are equally as many ends in view. It is not unfair, however, to refer broadly to scholarship as knowledge production, and partly we can do so because of the shared institutions and policies that guide it. It seems necessary, however, to differentiate scholarship by novices from scholarship by experts.

We can picture how student-generated scholarship, or the work of young scholars in general, is different from the work of advanced scholars in several ways. First, by definition, the advanced scholar will be more familiar with the field of study. He or she will have spent more years in the field, or more years pouring over seminal (and marginal) texts. Secondly, he or she should demonstrate a kind of judgment about the object of scholarship that is informed by his or her experience – this might lead him or her to attend to different matters than would a novice scholar. And third (but perhaps not lastly), he or she should be able to generate more profound and engaging scholarship.

These attributes will certainly not all be true all the time, but the point of defining them is to better define a novice scholar. The novice, by comparison, will not be able to perform as reliably or consistently. He or she may create excellent scholarship some of the time, but we cannot expect a novice to have the kind of judgment of an advanced scholar. By definition, the novice may be able to generate important work, but he or she will not yet be able to sustain the level of work as the advanced scholar.

Often, academic institutions ask students (likely novice scholars) to abide by the same rules as the advanced scholars – for example, the same conventions of scholarly attribution. Is this reasonable? Is it assumed that this is the best way for the novice scholar to learn? And how many students abide by these rules, but then do not become a scholar by profession? Is this the best thing for them as well? I will not explore the historical foundations of attribution and citation practices here, but a short analysis will identify some of the assumptions and effects of those practices. In turn, this will help describe a set of standards that undergird the activity of academic writing.

Enumerating the total sum of desired educational outcomes is notoriously difficult, so it will be similarly difficult to articulate the value of learning to write. Writing is seen as a good “life” skill because it is good for communicating, describing, theorizing, arguing, and so on. Furthermore, we often value originality as an attribute of writing because it serves as an extension of the author’s voice – extending writing’s utility as a device for storytelling and entertainment. But what if manipulating the work of others (with no responsibility for attributing that work) has a greater positive educational effect that creating original work?

When are we merely cheating?
New tools often make cheating easier – where academic standards dictate correct methods of learning and producing knowledge, students and professionals of all ages now have access to powerful alternatives. Only a couple of decades ago, for example, if one wanted to copy someone else's work word for word, one had to go to the great trouble to re-type it onto paper, word for word. Now, it's as easy as "cut and paste."

As new technologies are used for cheating, schools have struggled to bar access to those technologies (Glater, 2006). The great abundance of information on the internet, for example, is often seen as a threat to schooling and learning communities even as new technologies of reproduction potentially accelerate the sharing of all kinds of educational materials.

Tools, it seems, often conflict with educational practices and desired educational outcomes, and educational institutions are slow to change. Chairs and tables, for example, can be a source of disorganization and distraction in the classroom (and educators might be given to bolting them to the floor).  New tools, even if they show promise for enhancing students' access to knowledge (or acquisition of "skills"), might be perceived as a threat by educators and educational institutions because they introduce new elements into an already complex system of labor and values – that is, such conflicts may even rise to the status of ethical dilemmas.

Calculators are a good example of this, as they play an important role in accelerating math processes, but also undermining older educational practices of memorizing computational models. Because the ends of education are so diverse, challenges to "traditional" educational practices often leads to discussions about values. To make matters worse, of course, there are values which we share, and values which we do not.

In terms of textual production, tools such as the internet (or the various "tools" made available therein) allow for fast aggregation and recombination (as well as just plain "cut and paste"). Teachers, who once read student papers with the assumption that a student had to at least manually write or type the words (more or less, ghostwriting notwithstanding), can now have no assurance that a student did not simply download a full paper from the internet, change the name at the top, and claim "authorship" through the mere act of turning the paper in as his or her own work. At worst, this is an act of apathy or defiance. At best, it is an attempt to circumvent required work. Either way, it is not a case that we will be concerned with here – let's call it cheating.

To minimize cheating, requiring thorough attributions seem reasonable. New tools like TurnItIn.com and WriteCheck.com also seem to be a step in the right direction. WriteCheck.com allows students to check their work before it is evaluated by a teacher, and TurnItIn.com allows teachers to check the student’s work upon receiving it. Together, these tools support the institution’s interest in attribution by automating the evaluation of scholarly attribution. (Indeed, though they leverage the power of networks and databases to highlight scholarly missteps, they are not much different from the software that helps scholars create and manage citations.) But what about more sophisticated cases of plagiarism?

Some of the more interesting cases of plagiarism have to do with purposeful recombination. In cases where a student is synthesizing ideas, for example, he or she is still responsible for documenting the sources of those ideas. If the documentation is poor, then it can be said that the ideas have been plagiarized. But learning still may have taken place, even to a great degree. In the next section, we will consider how and why academic honestly policies govern this kind of creative act.

Redefining Excellence
Appropriation in Art
The so-called “copyright wars” can serve as an instructive background for what may lie ahead in academia with respect to plagiarism. In the most general sense, violation of copyright law is analogous to violation of academic honesty policies. They are both violations of cultural and institutional standards for acceptable behavior, even though each set of policies has different ends in view (though academic honesty policies also usually defer to copyright law when specifying limitations on quoted material, as if “fair use” was not applicable).

To better understand the significance of the copyright wars, it is instructive to look at the conflict between creativity and commoditization. Creativity, on the one hand, is pursued and valued by society as a source of meaning and innovation. Commoditization, on the other hand, is pursued and valued as a source of productivity and livelihood. The purpose of copyright law is, purportedly, to protect the ends of both creativity and commoditization by protecting creators, though history has shown us how the two ends – compatible in principle – often conflict. The example of how some artistic practices violate copyright law will illustrate how different values are at stake in the copyright wars, and lay a groundwork for considering alternatives to current policies.

The development mechanical reproduction in the past 150 years has led to new techniques in the visual arts. The rise of appropriation has been one creative outcome of this development, as the ability to “steal” imagery from an existing source has been multiplied, accelerated, and amplified by new technologies and new techniques. Buskirk (2003) shows how appropriation art developed as an art form in the twentieth century from the works of Marcel Duchamp to Sherrie Levine.

When Duchamp, for example, placed the urinal in the gallery of the [world’s fair?], he was appropriating the work of the urinal maker in the name of art. Duchamp, it has been contended by art historians such as Buskirk, transformed the urinal by his choice (and ability) to re-frame it as art – Duchamp’s actions as well as the context for his actions made this possible. In this case, the urinal maker did not claim that Duchamp violated his ownership of the urinal (in this case its image, since presumably Duchamp owned the actual the urinal without purchasing rights to “reproduce it” in a context that potentially misrepresents its “authorship”), but in light of more contemporary examples of legal intervention, and according to current standards of copyright law, he may have be within his rights to do so.

As this example suggests, determining the ownership status of copies can be difficult. Just because I purchase a copy of a photograph, for example, does not mean I own the rights to reproduce it – or even to put it on display. According to copyright law, making a copyrighted work “public” can be a violation of the terms of a sale, as the default status of copyright always falls to the author. (Cf?) Copyright law has also changed over the years, and one of the more momentous changes took place in 1976 when new legislation dictated that all creative works are subject to copyright by default. This overturned at least 50 years of legal precedent that tied the status of copyright to the act of publication (check on this).

In this way, appropriation often violates a copyright holder’s (or “author’s”) right to permit or forbid the creation of derivative works – a limitation that exists in copyright law to protect the copyright holder’s moral and economic rights to a creative work. So when an artist takes another author’s image, without permission, and reproduces it by means of one mechanism or another, he or she is infringing on that author’s rights. Having done so, he or she may be asked to “cease and desist,” or, if the action has already eroded the value of the author’s work (morally or economically), then the artist may be held responsible by a court of law to make reparations to the author. That is, an artist who appropriates images without permission can be sued.

To make matters worse, artists often rely on non-attribution to achieve success. Images, forms, materials, techniques, or styles from another artwork or image may be borrowed with an invisible hand. Collage, bricolage, and pastiche describe different methods of “borrowing” imagery from an existing image, and all could be said to involve appropriation. It is usually only the most blatant examples of appropriation that are associated with violating copyright, but this continuum of methods serves as a reminder that the act of “stealing an image” is related to the act of “imitating style.” Within the practice of art, both can be said to be complimentary acts – so when Picasso “copied” the work of [Spanish artist], it can be said that he was “part of the tradition of art.”

Few would argue against the notion that Picasso brought “originality” to his work, yet it is less often said that those works were acts of copyright infringement. If Picasso simply said, “my painting is the result of …” and he made explicit the images he was “referencing,” then might they not be as much fun to look at? Non-attribution, it seems, could serve several purposes. On the one hand, it creates a kind of game, where the artist challenges a viewer to discover the tradition of an artwork as part of the work of interpretation. On the other, a viewer can enjoy the artwork without the knowledge of the source of its imagery “getting in the way.” Without suggesting that either of these characteristics is “correct” or necessary, we can appreciate the complexity of the way we value art as we come to understand the role of appropriation.

It is a result of values like this, and the sources of creativity in general, that have led to limitations on copyright. If commoditization were the only aspect of creativity we valued, then we could make laws that protect authors’ moral and economic rights indefinitely (and it is only an historical irony – a result of the overreaching ambitions of capitalism – that we practically do so). But “culture,” it seems, has other needs. That is, if we look again at the example of Duchamp or the example of Picasso, then we may realize that we rely upon the creation of objects and images to document and extend cultural narratives. And if these narratives were only ever to be “original works,” then they would perhaps not be as meaningful to us, or able to serve as objects of communication at all. This fact – that reusing and recycling imagery serves a powerful purpose – runs parallel to the values western society has evinced for published texts that shaped copyright law in the first place. Unfortunately, aside from the protection it extends to authors, the law has not generally been on the side of artists who so wished to appropriate copyrighted works.

Using Copyrighted Works
Obtaining permission from a copyright holder is the sure way for an artist to legally appropriate an image. Sometimes a copyright holder will grant permission outright, or sometimes they will exact a fee and create a contract by which an artist may use a copyrighted work in a specified way. Sometimes a copyright holder will deny the artist permission to use an image, in which case the default recourse an artist currently has is to wait for the copyright holder's death and wait an additional 70 years. At that time, the work enters the "public domain," a status granted to a creative work whereby anyone may use it for any purpose. Today, the only other grounds on which copyrighted works are subject to legal appropriation is if the resulting creative work (and/or publication or distribution) falls under the rubric of a “fair use.”

A doctrine of fair use supervenes on copyright law, describing how uses of copyrighted work are permissible without the permission of the owner. It allows for “purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” (U.S. Code). Such uses are established by a four-pronged test:
In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include: 1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 2) the nature of the copyrighted work; 3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4) the effect of the use upon the potential market for or value of the copyrighted work.  - U.S. Code
Together, these factors determine the legality of any situation where the use of a copyrighted work is called into question. So, if i clip a photograph from the newspaper and bring it into my classroom for my students to see, I am certainly within my rights according to the first clause. If I make photocopies to distribute to my class, I am likely still on firm ground. If I take the same photograph, digitize it, and post it to the internet, I am shakey ground. According to clauses two and four, it could be said I am damaging the market for the original (for unlike the newspaper, I have not paid the photographer for the right to publish it, and I am perhaps damaging the newspaper's investment as well). On the other hand, if I noticed that a person in the background of the photograph was my cousin, and I excerpted that small portion of the photograph to post to my personal website, I would be on firmer ground according to the third clause.

In a sense then, fair use can be understood as a defense of culture and as a counterbalance to the commoditization of creative works. It is especially pertinant in cases where copies of a creative work may be made and distributed in a fashion that potentially undermines the original author’s moral or economic rights. Indeed, legal cases serve as markers along the thin and thorny boarder between vindication and dismissal – valid and invalid instances of fair use. Cases where the doctrine of fair use is invoked but often overturned are often cases involving art.

For example, Shepard Fairey, an artist known for his Andre the Giant stickers, created a portrait of Barack Obama during the 2008 presidential election. "On February 4, 2009, the Associated Press announced that it determined "that the photograph used in the poster is an AP photo and that its use required permission" (Wikipedia, accessed 4/4/09). "The 'Hope' portrait of President Obama, which was an icon of his 2008 campaign, is now a symbol of copyright scuffles, artistic license and political dissent" (The Washington Times, accessed 4/4/09).

Fairley claimed his use of the AP photograph was a fair use, and anticipating a lawsuit following a cease and desist letter from the AP, he sued for a declaratory judgment. The outcome, which is not yet known, rests on whether or not an artist can create a derivative work of art from a photograph without obtaining the photograph's owner's permission to do so. Past judgments about fair use also suggest a work needs to be "transformative," and not merely "derivative." Thus, while the fidelity of appropriation ultimately determines whether or not an original work is identifiable, in cases where it is, there is the further matter of whether or not a copy issignificantly original. Derivative works are subject to copyright law, while images that have been sufficiently transformed (into something else?) are not. The difference between a derivative and transformative use of a creative work essentially falls to legal interpretation.

I began the discussion of copyright with the notion that creativity and commoditization are in conflict. Now that we've better established some of the legal difficulties of using appropriation in art, perhaps we should re-frame the copyright wars as a conflict between cultures: a culture that values creativity for the sake of culture on the one hand, and a culture that values the monitization of creativity on the other. While there is no "right" side in this conflict, it is hard not to see how copyright – as a de facto status of creative works since the Copyright Act of 1976 was enacted – serves economic ends at the cost of creative ones. In light of "participatory culture," it seems difficult to accept that, "if a creator's right to profit off his or her work is not protected, he or she will not be sufficiently motivated to exercise his or her creativity" – a view that has served as the touchstone of copyright law for 300 years.

Current legal precedents also demonstrate a complex relationship between moral and economic rights. In the case of a song or a painting, it is often economic rights that are upheld by the courts (Chilling Effects Clearinghouse, 2004; Hunter, 2004). Though copyright law is meant to protect owners’ moral rights to their works as well, violators are made to compensate for copyright infringements financially. This is often a sufficient deterrent to motivate artists and other would-be "fair use" users of copyrighted works to steer clear of situations where they might be accused of stealing. On reflection, it is hard not to think of all the well-regarded art that would not have been possible without its artist running the risk of violating copyright law.

On face then, the fair use doctrine seems like a line in the sand on the expansive dessert of commoditization of creative works. This is especially unfortunate given that the trend over the past hundred years has been towards creative collaboration, fueled partly by the dissolution of "old ways" of thinking about art and creativity in relation to originality, and partly by the development of new technologies than enhance collaboration across space and time. Fortunately, culture has not been without its own champions who have strived to protect the rights of creators to reuse and recycle cultural artifacts (including text, images, and other objects protected by intellectual property law) when possible. In the next section, I will discuss a non-profit organization whose mission is to work within copyright law to make it easier for creators to share their work with others.

New Tools
Did art get "worse" after technologies of mass reproduction have "lowered the bar" for artists? Certainly many contemporary artists – of international renown or self-proclaimed – cannot create an oil painting as deftly as oil painters of centuries past (if at all), but that would be too strict a notion of what constitutes excellence in art. If artists accept pastiche and appropriation as valid elements of contemporary art, then we can argue that they have changed their method of valuing originality – or at least adapted their values to accommodate artistic practices that defy the quality of originality.

New methods of art making such as appropriation have forced artists and a wider community to reconsider what counts as excellent in art.

Lesson: technology redefines what is moral (people don't associate past taboos with new activities; see better storytelling/argumentation via "writing on the shoulders of giants"

A receding interest in originality... and the outgrowth of new ideals in art (e.g., political meaning, meaning-making as an end in itself).

Creative Commons as one answer to the overly-restrictive nature of copyright laws.

The "Creative Commons License" as an example of how one can work within existing constraints to form a "sub-culture for learning."

example of CC, “we can use existing frameworks in new ways” ("what the photographer could have done")

documentation can be facilitated by tools

The example of appropriation in the visual arts compels academics to change their conception of plagiarism.

A notion of originality figures prominently in artistic discourses. Processes of mechanical reproduction have made commonplace (and complex) what was once a matter of purposeful reproduction or forgery.[1]Consequently, an area of law (intellectual property law or "IP law"), has been developed over the past two hundred years with the intention of protecting "property owners" – the authors of creative works that can be copied.

But having an original appearance does not mean a work of art is wholly original – and by understanding this in more depth, we can better understand constituent aspects of the concept of originality.

Reclaiming Attribution
Students are affected directly and indirectly by academic honesty policies and the assumptions that underlie those policies. Academic attitudes toward cheating conflict with the realities of creative production. How does the development of new "fair use tools" suggest a way forward for scholarly attribution? What part of attribution is worth keeping?

Educators should want to limit plagiarism in education, but not because students need to create original work, but because attributing ideas and materials to sources is a useful kind of data.

How can we make sense of the various ends of research in academic life?

Appropriation as a methodological strategy—a methodology that may be essential to education as art practice becomes more accepted as a scholarly pursuit and artists bring artistic methods further into the research-driven heart of the university (Sullivan, 2005).

Currently, cultural forces that privilege property over learning extend all the way down the structure of the university into classrooms and curriculums.

U.S. copyright property law reveals that there is ample room for students to plagiarize texts and other materials in the context of schooling.

If students and teachers were to treat the limitation clause of honesty policies liberally, however, then the tool can be said to greatly enhance a student's ability to use the written work of others for their own purposes.

So, how do we move from redefining excellence in the arts to redefining excellence in education? There are seemingly more barriers.

Criticizing academic honesty in the same vein as others have criticized copyright law.

Is acknowledging an influence important enough to warrant the rules of citation? (What legs does any knowledge really stand on (and how weak are they))?

How closely connected are learning to write and learning to think? And then how do those related to "learning to respect others' intellectual property?"

I hope this argument has made us more able to make moral judgments about writing processes. The role of philosophers – moral philosophers in particular – can be to better attune human institutions to human lives. But to do this philosophers need a robust vocabulary for talking about excellence, as well as an equally robust vocabulary for talking about conventions, institutions, and the purpose and power of social constraints. This is no easy task, but I would argue that there is little hope of artists, educators, or learners of all kinds being able to assemble the arguments alone – as laws become more complex, institutions become more entrenched, and the various and diverse notions of human virtue become increasingly difficult to summon, articulate, and explain, philosophers will be essential partners for a new generation of learners struggling to cope with, and make meaning from, the complex milieu of work and play.

[An aside: Do market forces that privilege property (over learning?) extend all the way down the structure of the university into classrooms and curriculum? (Assumption: students are affected directly and indirectly by AHP and the assumptions that underlie those policies.)]

Attention to the Real-world Applications of Writing and Thinking
(A spectrum of “purpose”)

An Educational View (Value flexibility above originality?)
(The Age of Networked Learning)

(from intro) this change seems to hold more promise from a social and cultural perspective, which is the very perspective I argue should be the focus for the development of new educational tools. -- since the reason we seem to care about originality in the first place is because we are interested in deploying education to engender clear thinking and creative production, what are often seen as twin pillars of a democratic society.

How would one make a tool to honor the intent of Lethem's "esctacy of influence"?

Creativity Policies
Artists, presumably, are not just making "derivative" art to antagonize lawyers. They are finding meaning in, or through, appropriation. So why not scholars? – essayists, novelists, historians, philosophers, and writers of all kind.

Writers as learners.

the notion of “intellectual honesty” should therefore be supplanted by the notion of “creativity”—or at least that academic honesty policies should be redrafted in this spirit.

The practice of citing other texts in scholarship should be similarly balanced to allow scholars to benefit from and build on existing scholarship while protecting the integrity of the “authority of the original.”

In the same way that not all cultural production must lead to profit, we argue that all research need not lead to professional (i.e., publishable or career-enhancing) scholarship.

Interestingly, the university has the potential to be an environment that is protected from the overreach of current copyright law (what has been described elsewhere as an abuse the spirit of the law) which extends copyrights well beyond the life of an author. The role of scholarship as an educational pursuit, as well as its impact on the economic value of protected works, means that it is a likely candidate for protection under the fair use doctrine.

Self-discovery and cultural recombination should be proposed as legitimate ends of research, and the following principles should be explored further: 1) the standard practice of citing sources need not always be invoked, and 2) extreme examples of plagiarism may be valid educational outcomes.

Educators must set aside “canned” exercises in favor of a curriculum that poses authentic questions to students, and institutions of higher education must give serious attention to learning activities alongside its research agendas.

Theorizing learning as a creative act emphasizes its personal and experimental nature, and suggests the imposition of authoritative approaches to knowledge may not be warrented.

How will we direct our interests when creating and enforcing new rules, and developing new tools? A new configuration poses a challenge to educators, as well as society in general, to modify our values as they pertain to traditional educational practices and outcomes. But as in the case of the so-called copyright wars, this change seems to hold more promise from a cultural perspective.

Education and art making are related areas of human activity, even as they have different institutions and different (but perhaps equally diverse) ends-in-view. The case of appropriation art and academic cheating share more in common than just the theme of institutional resistance; the matter of originality is a central matter in each case. The matter of how artists have responded to the potential of new technologies and the limitations of copyright law is more than simply an interesting case – it may be a forerunner in the greater story of how our culture moved away from an ideal of originality toward different values about knowledge production, and a harbinger of change in education.

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