Keeping it Legal:
Web Site Management
by Jamie McKenzie
A Response to Keeping It Legal
by Ted Nellen
Lawyers Demand End to Holden Site!
New York Times Report
Disclaimer: The author is not an attorney and this article may not be substituted for formal legal advice from a Board attorney well versed in school law and copyright law.
What this article can do is alert you to legal issues which might arise out of Web publishing - issues which perfectly well intended staff members might not anticipate. The warnings and suggestions offered may save your school from stumbling into trouble.
My experience as a principal, assistant superintendent and superintendent involved me in more legal issues and cases than I would have chosen, if any choice were offered at the time, but that is one curious aspect of suits. They are usually chosen by an opponent of some kind who feels harmed and angry.
That legal experience taught me a degree of caution which I naturally apply now when exploring new frontiers. That caution will prevail in reviewing options and choices below.
Hampering the search for sound legal guidelines is an almost complete lack of case law regarding schools and Web sites. Web sites are so new that few principals and school boards have been taken to court over decisions their staff members have made.
When we cannot consult case law to see how the courts are interpreting the law with regard to a particular arena or category of activity, we must rely upon parallel or analogical reasoning, drawing concepts and principles from decisions that have been rendered in related areas or domains. Most of the ideas offered in this article are based upon that kind of reasoning.
Case#1 - Surfing Photographs
Photograph ©1995 Tom Servais, All rights reserved.
A student finds some great surfing shots at a resort page and downloads them to incorporate into a multimedia presentation she is developing for her English class. Is this legal under the "Fair Use" provisions of the copyright law?
Impressed by the report, the teacher nominates the production for publishing on the high school's web site. May the surfing pictures be incorporated? Under what conditions?
Concept of Fair Use
The copyright law and the courts (Legal Resources on the Web) have provided exceptions to the rules which govern the behavior of teachers, students and schools. In general terms, teachers are allowed to make "fair use" of materials for instructional purposes. "Fair use" has been interpreted to include those limited uses which are not likely to deprive a publisher or an author from income. A teacher might make a copy of an article or a page from a book for use with a class to support a particular concept, but they may not make copies of the whole book or workbook for the entire class and use the copies as class texts. They are expected to buy them. For a detailed description of which practices have been shown to be permissible under the law, check the Bellingham Board Policy on Copyright which was drafted by an attorney with copyright expertise.
Some people who work in schools wrongly and illegally take an overly broad view of "fair use" arguing that almost any taking and use of printed materials, software, videos or graphics is permitted because education is a good cause. The law simply forbids such behavior and provides for heavy fines against organizations and employees in caes of violation. Excessive photo-copying has been ruled illegal as has inappropriate use of "home rental" videos is schools and pre schools.
When applied to the Internet and the World Wide Web, the concept of "fair use" and copyright is distorted by longstanding rebellious (and illegal) attitudes expressed by Internet pioneers who have described the Net as a place where text and graphics belong to all "takers" without strings or restrictions.
Aside from ethical considerations, the risks attached to ignoring these laws grow with the size of your mortgage and the resources of your institution. A legal suit is more likely launched against major institutions where the lawyers can establish a case which will influence millions. An individual Internet pioneer could afford bravery and flirt with piracy. A teacher has no business doing so.
"Fair use" of Internet resources by teachers should probably parallel use of print resources. Teachers might make limited use of some text and graphics within their own classrooms. They probably should not "publish" those same materials across other classrooms within the building by posting on a local area network (LAN) or across other classrooms in other buildings on a wide area network (WAN) or the World Wide Web.
In general terms, students might make rather liberal use of information, text and graphics so long as their resulting works remain within the classroom setting. The moment the works move out of the classroom, they may fall under a "public performance" clause of the copyright law which imposes much greater restrictions and fees. We must distinguish between "practice" publishing and "real" publishing.
Music teachers are usually aware that their students may sing various works within class without extra fees, but if they wish to hold a public performance and charge admission, they will probably be charged royalties. The type of audience and the type of publishing or performing are key factors in assessing appropriate action.
As a general rule, neither teachers nor students may safely make use of other's materials (graphics, text, etc.) when they publish on the Web unless they have requested and received formal permission to do so.
Concept of Intellectual Property
As we work with students and colleagues to identify appropriate copyright behavior, we might focus some attention on the whole concept of "intellectual property" and how it may affect their own futures.
All too often we hear Internet radicals calling for free information, declaring that the words and art of all should be community property - free for the taking. This is an insidious notion. It has about as much ethical and logical merit as the arguments of those who defend shoplifting by attacking the large corporations who own the stores.
We need to acquaint our students with the earnings of writers, artists and photographers, many of whom barely scrape by. For every Jaguar driving bestselling author, there are hundreds who earn less than $10,000 per year from their writing.
Some day students' own futures as writers, artists and photographers may be shaped by the laws and court decisions on intellectual property. If these mental products became community property, they would find it even harder to make a living as an artist or writer.
Having supported myself financially as a full time writer, I can attest to the difficulty of doing so. Most artists and writers must rely upon large organizations to pay them so that they can turn around and feed their families, pay their bills. Most do their writing and their art "on the side" while serving as waiters or bartenders or editors or Customs Agents (Melville). If they are lucky enough to work for a company which pays them to write and research, that organization provides and builds a market for their writing or their art. These marketing efforts turn the intellectual property into a revenue generating item. Without their support, the artist or writer might be forced to display along the sidewalks of the city and settle for very small amounts of money.
There is also an argument to be made about quality. If you are looking for excellent professional information on cancer to help you and your spouse make a decision about a confusing list of treatment options, you probably do not want to rely upon the casual research of someone with no credentials, experience or research background. You will look for someone with expertise. The development of such expertise and professionalism usually requires years of advanced study as well as many months of research into particular topics. If someone devotes hundreds of hours to learning about an important topic, they deserve a return on their investment.
If we do not respect the notion of "intellectual property," we will sacrifice the incentives which help motivate the writers and artists to make great contributions to the society. Students can learn how their own behaviors either support or undermine a healthy and productive intellectual and artistic community.
As we saunter down the city street, we come across a young woman serenading the passersby with sweet and gentle music. We pause and lean against a utility pole, savoring the deeply moving gifts. Her voice is deep and full of emotion. We recall our own mother's lullabyes . . . the warm ending of childhood days. A half an hour slips by before we realize. Her guitar case lies open before us, a few bills and coins lying there suggestively.
How much shall we place in the case? How much was her service worth?
Friday Night Special
You sing too softly
For the street
And the crowd passing by
The street sounds
And city sounds
Drown out the soft sounds
And yet you sing
As if you know the price
The ice cream parlor
The card shop
And the news stand
These draw the crowd
A Friday night special
You sing the blues
For the street
And the crowd passing by
© by Jamie McKenzie
Use of Clip Art
Case #2 - Animal Pictures
Students use animal pictures from a CD of clip art which has been purchased by the school to create a virtual museum which will be available on the school's web site. Is that legal?
Many schools have purchased clip art collections to use with their students. How this art may be used is defined by the licensing agreement which accompanied the product upon arrival. In most cases, the agreement is printed on some kind of seal which is broken upon opening. In order to determine whether or not you are permitted to publish these images on your Web site, you must see how they describe publishing in general. In most cases there will not be specific language outlining your Web rights. You must employ parallel reasoning. Most of these agreements require you to print a credit line on any document which you are publishing which includes one or more graphic from the collection. This same approach will probably meet the terms of most licensing agreements, but you cannot take anything for granted. The best advice is to read the agreement.
Use of Web Art, Photos, Text, etc.
Unless there is a clear statement that art, photos and text are "public domain" and available for free use, the best policy is to assume that they are copyrighted and should not be taken and used for re-publication on a local area network, a wide area network or a Web site.
The good news is that a very high percentage of the sites we have contacted have responded positively to our requests. In one case, as excellent artist consented to district wide use of her collection for a mere $200 fee. Her collection was far superior to commercially available clip art.
Internet pirates argue that work is not copyrighted unless there is a clear notice on the Web page or site. This simply is not the case. Copyright law protects work even if no papers have been filed with the government.
Most people agree that students may use these items for school reports, but some companies are extremely aggressive about their icons and logos. They do not take kindly to abusive use of their company images. Caution is advised.
If permission is granted, the best policy is to provide a credit line near the item or at the bottom of the page.
Publication of student art, writing, etc.
Student work is intellectual property and deserves protection against piracy as much as adult work. Many school districts have taken to posting copyright notices on the bottom of all such pages.
Most schools are careful not to publish the full name of students for safety reasons. In those cases where a potential publisher wishes to contact a student and a family for permission to publish work, it is best to forward the request to the family and let them contact the publisher if interested.
In Bellingham, student work may not be published on a Web site unless both the student and the family have signed a release form. Copyright still belongs to the child and the family. If the students are 18 or older, of course, they may sign their own releases.
Publication of district documents
Some districts are quite happy to share their board policies, curriculum documents and other items. Others try to market these same items for a profit. In either case, there should be a clear statement explaining the rules.
If you visit Bellingham's site, you will find more than a dozen documents which are available for downloading. The district encourages other districts to take and modify the student and staff Internet policies as well as curriculum documents and staff development lesson plans. On each page where this is the case, you will find a notice granting permission.
Intranets: WebWhacker Files
WebWhacker is a software product which "captures" Web pages and allows you to save them to the hard drive of your computer or to a district file server. In some districts, they are utilizing WebWhacker to create "intranets" which allow students and staff to enjoy Web experiences without ever leaving the district network.
There are some great advantages to collecting Web pages locally. This strategy results in much faster access than real Internet access and it allows districts to focus student exploration on pages and sites which meet district curriculum standards and goals.
The danger of this strategy is the copyright issue. Before downloading any pages from a site, the district should obtain explicit, written permission. Despite what some of the software companies may tell you, those pages probably belong to the owner of the Web site and wholesale copying and republication on a WAN is probably illegal.
Who is responsible?
In many schools, the first home page and Web site emerges as the project of a computer club - perhaps a half dozen students and a faculty advisor. In all too many cases, the group proceeds without much knowledge of school law and without much awareness of the risks outlined in this article. They may have the best intentions in the world. In all too many cases, the Web site develops to a large extent without administrative oversight. This is dangerous.
Someone in authority should designate a staff member in each school to keep an eye on the Web site and the legal issues which may arise when a school engages in global publishing. There needs to be a single individual in charge.
Publishers must always be on the watch for slanderous materials. In the case of schools, the courts have held that libel, slander and damaging reports in high school newspapers are grounds for damages. The school is expected to protect individuals from such damage by reviewing content. Given the reality that Web publishing may reach a global audience, the damages resulting from malicious publishing may far exceed those formerly associated with school newspapers which might have reached several thousand readers.
Case#3 - Accusations
A student published a home page on the school web site which contains defamatory content about several students and a teacher, suggesting in rather explicit terms that these students meet the teacher outside of school for sexual activities. You are the principal. What action do you take?
The Concept of Community Values
The courts have ruled that schools have the right to limit freedom of expression in publications in cases where that expression might conflict with community values. While most would argue the importance of allowing students a good deal of freedom, providing a vehicle for individuals to broadcast their beliefs may be another matter.
Freedom of Expression vs. Censorship
Censorship is abhorrent to many of us. In the past, schools published the writings of very few students. The urge to censor was rarely indulged. Editors and a natural emphasis upon quality kept the flow to a trickle. The Web, on the other hand, opens up a whole new approach to publishing which is vastly larger in its implications. We may be in the ironic position of increasing the censoring temptation if we are not somewhat cautious about that publishing.
Case#4 - The Skin Head
A student known as a skinhead published a home page on the school web site which contains links to racist and anti-semitic sites. You are the principal. What action do you take?
Exposure - What is the liability of a school board?
School Boards can easily find themselves in court when publishing runs amuck. "Ignorance of the law," as the saying goes, "is no defense." Each district needs to create procedures which blend Web publishing into the wider group of district publications. This article attempted to outline a number of risks which might arise in conjunction with global publishing. In many districts these risks may never develop into full blown controversies, but failure to establish clear guidelines is a dangerous course. The wisest approach is preventive.
Legal Resources on the Web
Robbin Murphy's July, 1996, article on Copyright
Most current article. http://artnetweb.com/views/intelligent_agent/july.html
The Copyright & Fair Use Web site at Stanford Univeristy.
"The Copyright & Fair Use Web site is unique because it assembles for the first time in one location a wide range of materials related to this controversial and hotly-debated issue: the use of copyrighted material by individuals, libraries and educational institutions. Seemingly innocuous to those who have not tested its many ramifications, the doctrine of fair use is seen by many as being critically important to the educational and research framework of this country. Others fear that with the advent of digital technologies the fair use doctrine unchecked may lead to "unfair" uses of information. The sponsors of this site urge that explicit statements about the importance of fair use be made in any future copyright legislation or revisions to current laws."
FindLaw Internet Legal Resources
The Internet Lawyer: Internet Legal Research
LawLinks: The Internet Legal Resource Center
Legal Information Institute
Maintained by The Legal Information InstituteCornell Law School
Legal And Law-Related Sites On The Internet
Cyber Space Law for Non-Lawyers http://www.counsel.com/cyberspace/
Ethics on the Net http://mbhs.bergtraum.k12.ny.us//cybereng/ethics/
Copyright links http://mbhs.bergtraum.k12.ny.us//cylib.html#copy
NYTimes article http://mbhs.bergtraum.k12.ny.us//cybereng/nyt/ethics.htm
The following resources are quoted
from Robbin Murphy's July, 1996, article on Copyright
Pamela Samuelson article for Wired on the Government's White Paper
Esther Dyson's "Intellectual Property on the Net"
John Perry Barlow, "Wine without Bottles"
United States Copyright Office
The Copyright Website
1976 US copyright act
Information Infrastructure Task Force Working Group on Intellectual Property Rights White Paper
By Ted Nelson
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