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Last week I posted some information about the I-Safe curriculum addressing
intellectual property to these lists. I also posted the same information to
a list of folks who have expertise in copyright law asking for an evaluation
that I indicated I would pass along to you. As a former attorney who worked
in the area of copyright law, I pretty much knew what these folks were going
to say.

I have some very excellent responses. I am going to be incorporating these
into a report on I-Safe curriculum. This report will take a while to
complete because I have some other pressing matters to attend to. I do have
concerns about other aspects of the I-Safe curriculum -- but when I address
concerns, I make sure I have fully researched this matter.

By way of background, the I-Safe organization received two ear-marked
appropriations from Congress. The funds are channeled through the Office of
Juvenile Justice and Delinquency Prevention, but the very fine folks at
OJJDP had no discretion in this matter. The CEO of I-Safe comes from
industry. I know of no one who I consider to have expertise on matter
related to Internet safety or Internet use in schools who has been involved
with the development of this curriculum.

However, when it comes to the I-Safe intellectual property curriculum, my
guidance is as follows:

This curriculum has significant flaws. Major portions of the curriculum do
not provide accurate legal information. This curriculum should NOT be
presented to students.

The best copyright curriculum I have seen is that put together by the ALA.

Here are some selected responses from the copyright list members:

1. > I think it is laudable to educate young people about intellectual
> property. However, if we want to educate them, we need to give them
> accurate information. I therefore find it troubling and would not
> recommend that schools educate children about intellectual property
> generally without informing them of limits in intellectual property,
> particularly those limits that establish users' rights. Accordingly, I
> think there are significant problems with the curriculum described in
> the email.
> 1.    The fifth grade curriculum suggests that it is always wrong to
> copy or download "articles, pictures, or other information" from the
> Internet. As a matter of copyright law, that simply isn't true.
> 2.    The grade 7 curriculum defines intellectual property as "a name
> used for copyrighted material or something that is intangible." This is
> not a good definition of intellectual property. It is inaccurate, and
> both wildly overinclusive and potentially underinclusive. It goes on to
> say, for example, that ideas are someone's property. Of course, the
> copyright code expressly excludes ideas from copyrightable subject matter.
> 3.    The grade 8 curriculum trial is perhaps most problematic of all.
> First, no one knows what the defendant did - copy music? Imitate a style
> and improve on it? Digitally sample? Quote someone's writing in a book
> review? How can there be a verdict of any kind (let alone judgement
> notwithstanding the verdict), without specification of the behavior in
> question? If the defendant is accused of doing what the witnesses
> complain of, the guilty verdict makes even less sense. Why should
> someone be tried in a court for not giving credit to another writer?
> Yes, it's a very serious academic offense, but there's not likely to be
> a civil cause of action in many cases. Second, the trial appears to be a
> criminal proceeding. If the defendant did something like download a few
> songs, the prospect of criminal prosecution is extremely remote - to the
> point where suggesting it to children is to mislead them.
> In short, if a school asked for my opinion about whether to teach the
> material described below to students, I would strongly recommend against
> it. If the point is to teach children that mass file swapping is against
> the law, then specific lessons about mass file swapping should be given.
> Telling children that many other perfectly legal activities are as wrong
> as mass file swapping misinforms them in a way that causes them not to
> exercise rights that the law gives them. Indeed, the students will think
> that those rights don't even exist, and I think it is bad for us to live
> in a country where its citizens are knowingly taught that they don't
> have rights.

> It seems that  the RIAA is running your education system, your country, the
> minds of  American citizens and of course their wallets ?

3. Sigh.  Just a few very brief responses.
(5th grade curriculum example)
> 5th graders can understand the difference between $$ and credit as an
> author.  They can also understand the difference between downloading
> with permission and without.  And they can understand that things made
> in the 19th century are in the public domain and are not protected by
> intellectual property.  Refinements like "fair use" may be attempted,
> but I would try to keep it simple.

(7th grade curriculum example)
> Use a made-up name as an example, not an actual last name.  Like Xerox
> or Kodak.  7th graders should get an accurate definition of intangible
> property and an accurate definition of intellectual property.  A pure
> idea may be intangible, but it is not property (unless it is a trade
> secret).  Most business methods, inventions, chemical formulas,
> computer program processes, industrial processes are in the public
> domain with  the patent having long since expired, having never been
> granted in the first place, being obvious, and so on.  The definition
> and examples need to be refined to distinguish between protectable and
> unprotected at every step.

> Well, even the Lanham Act has been held not to go so far as no. 6.  The
> distinction between plagiarism and intellectual property rights should
> be made more sharply.

(8th grade curriculum example)
> Ouch.  Followed by Cringe.  So flawed as to be uncorrectable.  Tear it
> up and start over.

4. When you "visit" a web page, data from the web site must be transmitted
> your computer.  Transmitting data to your computer is also called
> "downloading."  Therefore, by this absurd logic, it is illegal and wrong to
> visit a web page.

5. In my humble opinion, some of that $8.5 million should be spent on
> educating the author of this curriculum about the fundamentals of copyright
> and intellectual property.  Not to mention basic rights like free speech, etc.
> No snickers, and it's not absurd.  It's tragic.

6. The last bit about the criminal trial is particularly irksome.  No judge
> set aside a "not guilty" verdict in a criminal trial on the basis that "the
> jury didn't follow the law."  There are things such as due process and
> double jeopardy which still exist--that is, so long as the defendant's name
> doesn't show up on a CIA memo...

7. Ouch!  So the US government spent my tax money to develop a curriculum
> of utter falsehoods? Case in point, 5th graders would be taught that
> "Intellectual property has value to its owner. The owner has control of
> what can be done with his or her intellectual property."  At best, it is
> a half-truth.  But copyrights and trademarks limited in the rights they
> convey.  The copyright owner, for example, has absolutely no right to
> control how often a 5th grader can perform the work privately.  And of
> course, every one of the Section 106 rights are "subject to" the
> limitations in Sections 107-122, which specify a great number of things
> copyright owners cannot control, like the freedom each 5th grader has to
> sell, lend, or give away their own lawfully made copies of the works.

8. This is all such a load of mis-information it's hard to know where to
> start. But I started with "3.5 million dollars" and "who is i-Safe?",
> although I didn't get terribly far. What is clear is that i-Safe has
> very little existence outside of this government grant, which makes up
> nearly all of its revenue. Their web site says:
> "The United States Congress has designated i-SAFE America, Inc., a
> non-profit Internet safety education foundation, to bring Internet
> safety education and awareness to the youth of the nation."
> So it sounds like Congress has funded them directly, i.e. this isn't a
> grant or a "bid" situation? Anyway, their 990 report is quite
> interesting - less than $200,000 from "other" sources, $150,000 donation
> of software from Microsoft (which then turns into a neat tax deduction
> in amortization area), and $3.3Million from Congress.
> None of the key officers of i-safe appears to be anyone with any legal
> background (well, I should qualify that -- there are a couple of police
> chiefs on the board, but no lawyers). And it isn't clear how they went
> from "Internet safety" as their mission to "copyright mis-information"
> although I think we can all imagine how that happened.
> So now the question is: can we keep this mis-information out of our
> schools?

Basically, the last question is up to you folks.


Nancy Willard, M.S., J.D.
Center for Safe and Responsible Internet Use

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