Old Laws/New Media/teachingguide

Topic Owners: Shubham Mukherjee, Debbie Rosenbaum, Matt Sanchez

Teaching Guide for Old Laws/New Media

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Precis

The purpose of this page is to provide additional teaching insights into presenting a class on Old Laws/New Media. The outline of that class has been updated to include, where relevant, summaries or videos for you to understand better how our class session went. The materials below offer more insight into our experience and suggestions for a future course offering.

Class Overview

As you can see, the class is divided into three parts:

• Part I. Background
• Part II. Case study: RIAA vs. Tenenbaum
  • RIAA's use of the Copyright Act
  • RIAA's use of the Copyright Act's statutory damages framework to Internet users
  • New Technology vs. Courtroom Norms
• Part III. Closing Discussion: Which are the most promising ways to adjust old laws to new media?

The class is based on a theory-and-practice model. The structure of this class is an hourglass: starting with the largest topic, honing in on particular issues associated with that theme, and then broadening the discussion in the end to leave students thinking about further applications. We executed the class using a variety of software tools to encourage conversation on various levels, although the conventional wisdom is that class discussion are far deeper and meaningful without student access to their laptops.

As you can see, the topic leaves lingering questions. And that's okay.

Resources

We encourage presenters to have a background familiarity with the basic copyright cases and some exposure to the various arguments on these topics in order to ensure a balanced presentation of the material. Some helpful resources to prepare:

• Promises to Keep by Professor Fisher
• Restructuring the Fair Use Doctrine by Professor Fisher
• David Byrne's Survival Strategies for Emerging Artists – AndMegastars
• David Pogue, "The Generational Divide in Copyright Morality" (NY Times, Dec 20, 2007)
• John Perry Barlow, The Economy of Ideas, 2.03 WIRED 84 (1994)
• Metro-Goldwyn-Mayer, Inc. v. Grokster, 125 S. Ct. 2764 (2005)

Tools / innovations for the presentation

For our version of the class, we divided the students into three groups to best make use of various communications tools that supplemented the old methods of class interaction. Each group utilized a tool in a way that builds upon other groups' actions and furthers the class dialogue. While earlier class sessions incorporated Twitter and the Question Tool, our hope was to add organization and discipline to their use. That is, by having one group of students focus only on submitting questions to the Question Tool, we hoped to get a steady stream of high quality questions; by having one group focus only on voting for questions, we hoped to get meaningful feedback on those questions; and by having one group focused on Twitter, we hoped to get a meaningful stream of tweets.

Analysis: We found the various use of new media to be both enhancing and distracting. On a whole, students are not quite used to the multi-tasking that is required by twittering, thinking about questions, responding to statements, and actually paying attention to a speaker. Some students explicitly conceded this point during our session through their tweets:

• "I will stop twitting. for me, multitasking fail #iif"
• #IIF: I think we shouldn't be multitasking. There are a variety of audience roles to play, and no one can do all of them

To the extent that a future teacher uses Twitter during his or her class session, we recommend instructing the students on how in particular they should use twitter. Students during our class expressed confusion on whether the best use of Twitter was so-called "lifecasting," or engaging in substantive policy discussion related to the class.

• "Is the point of the twitter convo to report the class to the world? or is to be a backchannel for raising questions? #iif"
• "#IIF: Instead, we should describe as much as we can while staying tethered to the twitter conversation"

Students also made some valuable suggestions regarding the Question Tool:

• "yes [...] downvoting on question tool would be useful. google mediator does this, and some other programs do too. #iif"
• "#iif, wonder if question tool should be updated to allow people to remove old votes or neg a vote, to get fresh qs to top"

We believe that there is continued value in supplementing a class based on old laws/new media with some new media class interaction -- considering that it underscores the very topic of the class. But we advocate that recommendation with some hesitation as it does distract some students from fully paying attention during presentations.

As a starting point for your efforts, here was how we instructed students as to their "technology roles" during class:

• Question Tool
  • Question tool questioner group: During class, please focus your online efforts on posting substantive questions to the question tool. The questions can be just general questions to the class, or directed to one or more of the individuals debating at the time. If you want to tweet or vote on questions, you can of course do that. But we are hoping that you will form the core group that will keep generating fresh candidate questions that people can vote on. And it would even be great if you want to post questions in advance of class. Here is the question tool.
  • Question tool voting group: During class, please focus your online efforts on voting for questions that the “Question tool questioner team” has been generating. If you want to tweet or pose questions yourself, you can of course do that. But we are hoping that you will focus your efforts on voting so that we can see some active “flocking” towards the questions that are of the most interest. In an ideal world, the moderator of the debate will have nothing more to do other than read off the highest vote-getting question. Here is the question tool.

• Twitter group: As part of the RIAA case, one of the technologies the Tenenbaum team has been experimenting with is twitter. You can check it out at: http://twitter.com/joelfightsback twitter.com/joelfightsback]. For this class, tag your Tweets with "#iif" and"#joelfightsback. During class, please focus your online efforts on making substantive tweets on #iif. If you want to post a question on the question tool or vote on the question tool, you can of course do so. But we would like you to view "twitter" as your main responsibility. We are hoping that you will be the core group that will keep the twittering going.

All groups were encouraged to reference the JoelFightsBack Website during class. The Tenenbaum defense team created the website to help supporters follow the case and interact with the team.

Substance of the class

Below, we discuss some of our specific teaching suggestions on the two substantive topics of our session. As an initial note, between our outline and the materials below, we have added enough references and reading material such that the teacher can consider breaking this into two separate sessions. Each of these topics are complex and rich, and offer plenty of material to serve as the focus on its own session.

Statutory damages

As indicated in our class outline, our discussion of this issue centered on a debate between Professors Fisher and Nesson. We were very pleased with how this debate went and were happy to hear numerous students tell us after class that they thought this was a great use of the class time.

Our session focused on whether the recording industry's actions were justified rather than discussing constructive alternate solutions to the crisis in the entertainment industry. We had wished to do both, but time did not permit. A future teacher may wish to place heavier emphasis on a class discussion of solutions to the crisis, especially since some of these proposals are coming close to being implemented in practice. As a starting point, a teacher can have students review (or can summarize for students) the following solutions that have been proposed in the literature:

• A compulsory license or tax system. References include Chapter 6 of Promises to Keep (identified under Resources above) and the Electronic Frontier Foundation's literature on the subject.
• An administrative dispute resolution system, proposed by Mark Lemley and R. Anthony Reese
• A "three-strikes" system, gaining traction in popular discourse about the issue

Students should be able to tease out fairly easily the various policy considerations at play for these proposals.

As a final note, a paper was released very recently that should serve as a valuable reference.

• Samuelson & Wheatland. Statutory Damages in Copyright Law: A Remedy in Need of Reform

New Technology vs. Courtroom Norms

Soon after our class session, there were some interesting developments in Professor Nesson's case. These developments added a rich body of material from which a future session should draw. Rather than discuss these developments here in the abstract, we have gone ahead and incorporated them directly into our class outline, along with our suggestion on how the materials can be integrated and organized into a future offering. Please see our suggestions here.

As you will see, one of our suggestions is to break up the course into distinct segments: common law traditions, the Internet as compared to traditional media, and Constitutional underpinnings. While our in-class discussion was interesting and engaging, it quickly became a Q&A with our guest rather than a discussion of the issues. Organizing the issues as we have suggested may add structure to the conversation.

Good luck!