Up in Arms: An Intellectual Property, Copyright, and Fair Use Annotated Bibliography

Rather than celebrating the landscape of intellectual property, scholars provide concerned
critique and often call pending copyright cases legal battles. DeVoss and Porter describe those
battles as "skirmishes" (189). Ashley Hall et al. described the era of Copyright 2.0 as guerilla
warfare (182). This fear of the war appears in most copyright scholarship in Rhetoric and
Composition; the fear takes many forms. Excessive copyright overriding fair use is the main
concern to scholars. To combat these fears, this annotated bibliography aims to create a
conversation about the ways in which compositionists, equipped with a suit of armor and sword
in hand, can fight in the copyright fray. In order to fight the good fight, users must exercise the
right to fair use, so heres an excellent transition, fairly used: Now remember, kid. First, analyze
the situation. Don't just barrel in there without thinking, eh? (Hercules).
Approaching and analyzing the situation means a few things--interrogating the nature of
fear in Composition--as well as scholars weapons of choice--how they combat those fears.
These fears take the form of several trends in the writing that scholars in Rhetoric and
Composition pursue, as well as some law and media studies. Some scholars like Barlow,
Herrington, Lessig, and the collective from CCCC-IP argue that educators, and even the more
general "User," need to exercise their right to fair use or risk losing it altogether. As a collective,
the Rhetoric and Composition community has seen the diminishing and increasingly punitive
approach to "infringements" of intellectual property, under which copyright belongs. This is a
second and third kind of fear: the fear of infringement and knowledge. Overwhelmingly,
composition instructors outside of the intellectual property discourse community avoid learning
law and, more importantly, avoid learning their rights. In doing so, these educators avoid the
kinds of productive and meaningful work that their students could be doing that fair use protects.

Members of the discourse community worry that this avoidance, this hands-off approach, will
destroy fair use and thus free speech (Barlow, Herrington, Lessig). Others dismiss the hands-off
approach as bad pedagogy (CCCC-IP). Many scholars hold themselves and each other
responsible for lobbying for broad fair use policies (that isn't to say general, but rather inclusive)
and for creating a discourse that changes the nature of ownership/authorship for students
(DeVoss and Porter, Logie, Lunsford and West).
After analyzing the situation, compositionists might decide they want to join the fight,
like the scholars listed in this bibliography, as well as many others. In order to do so,
compositionists must equip themselves with armor--the law. Most scholars discussing intellectual
property arm themselves with a historical understanding of the law and quote 17 US Code 107,
the Fair Use Doctrine. Following suit:
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.
The four-factor test vitalizes the discussions in this bibliography. Given the unique nature of each
creative work, precedent does not strictly determine a fair use cases outcome; analysis does. To

fight this war, composition teachers must participate in discussions that develop the skill to
reason with using fairly and have the ability to facilitate the same discussions with their students.
This annotated bibliography has some limitations. While I speak of war, these annotations
only represent one side: the copyleftist perspective, Scholars in Rhetoric and Composition are
varying degrees of copyleftist, yet other disciplines also have different stakes in and perspectives
on copyright. Additionally, this bibliography lacks the space required to completely address
discuss the manageable but still large amount of intellectual property scholarship. If time and
space allowed, Steve Westbrook's edited collection called Composition and Copyright:
Perspectives on Teaching, Text-making, and Fair Use would have been included almost in its
entirety as well as the number of articles that were unlocatable or ironically inaccessible. Perhaps
problematically, as I will build these annotations into a copyright-training presentation, theres a
heavy presence of theoretical texts rather than texts that offer concrete ways to incorporate fair
use in a classroom. However, these theoretical texts do influence the subsequent projects
purpose, scope, and approach.

Barlow, Aaron. "The 'Fair Use' Challenge." The CCCC-IP Annual: Top Intellectual Property
Developments of 2010 (2011): 23-25. Web. 12 Feb. 2015.
The fair use policy is dying; for example, Righthaven LLC. a copyrightpurchasing company, targets ordinary (potentially fair) users with lawsuits. Due to a lack
of finances, most users cannot fight the suit and thereby weaken fair use as a viable right;
an undefended right weakens. Most importantly, he points out that each publishing
company, website, or even individual writers construct their own fair-use policies. Nonstandardization fosters exploitation of the law, infringement of the users rights, and the
creation of confusing gotcha moments that trap users. Barlow implies an ethic of
lawful consistency; the copyright research provided here demonstrates that this
consistency is absent, especially "ethic" on the part of the copyright holder. Writing
instructors should to use their abilities to push for the broadest application of fair use.
Barlow pushes against the scholars who ask universities to develop new policies (as that
reinforces inconsistency) and supports CCCC-IP's view in "Use Your Fair Use," where
the authors encourage teachers to break university policies and follow the law itself.
Bielstein, Susan M. Permissions, a Survival Guide: Blunt Talk About Art As Intellectual
Property. Chicago: University of Chicago Press, 2006. Print.

Bielstein argues and emphasizes the influence of money and future revenue in the
existence of the laws and verdicts of copyright litigations. She especially criticizes and
distrusts copyright laws, deeming the laws as a symptom of greed, not as a moral defense
of the author/artist. Bielstein focuses on securing rights or enacting fair use of images (in

non-academic spaces), which can be helpful for a publishing scholar. However,

examining images as potential fair use content is an important lesson in the classroom:
Did I transform the image? Do just copy it? Scholars benefit from the templates for
usage requests and tips for publishing images in scholarly work. An eye-opening
addendum to her text, the price breakdown of permissions and usage fees from the very
text shes speaking through helps scholars understand the copyrights (continued) future
facing publishing scholars and their students, giving reason for fighting to broaden fair
use.
DeVoss, Dnielle Nicole, and James E. Porter. "Why Napster matters to writing: Filesharing as a
new ethic of digital delivery." Computers and Composition 23.2 (2006): 178-210.
ScienceDirect. Web. 15 Feb. 2015.
A primary exigence of this work is getting compositionists to think about digital
medias influence; especially those that challenge a traditional view of writing,
authorship, and perhaps ownership; on the composition classroom. The authors detail
Napsters history as well as look at the cultural and legal aftershock of its existence and
death and its classroom application. Napster massively influenced our culture, as it
changed the nature of the ubiquitous technology called the Internet, and provided an
original site for incubating new and changing ideas and understanding of ownership
visible in composition students. Discussing Napsters influence can reach our students
not only with P2P filesharing but the sharing culture Napster embodied and its Napster
babies.

Galin, Jeffrey. "The Fair Use Battle for Scholarly Works." Copy(write): Intellectual Property in
the Writing Classroom. Eds. Martine Courant Rife, Shaun Slattery, and Dnielle Nicole
DeVoss. Anderson: Parlor Press, LLC, 2011. 3-27. Print.
Galin, a former co-chair of the CCCC-IP, opposes the encroaching threat of
overzealous copyright holders and subscribes to the idea that the greater good of
humanity should surmount the rights of individual copyright holders. Scholars must be
willing to learn and fight for their rights because these rights have been, are, and will
continue to be taken from us if scholars do not provide resistance. For example,
Lawrence Lessig established a valuable precedent with Carol Loeb Shloss, a scholar who
wanted to publish, using some quotes from James Joyce's work. Shlosss work was fair
because it passed the four-factor test, but the James Joyce estate refused to let her to use
any of his work. When Shloss and Lessig took the case to court, Shloss won; she fought
against the Joyce estate from infringing on her rights. Be resistant to overactive copyright
by knowing which resources can be called on if confronted with a (potential) lawsuit
where fair use should apply such as Chilling Effects Project, Berkman Center for Internet
and Society at Harvard Law, the Electronic Frontier Foundation, Creative Commons, the
Fair Use Project, and a number more. Additionally, academics should change their own
publishing culture, publish, and create more open-access materials and tools.

Hall, Ashley, Kathie Grossett, and Elizabeth Vincelette. "Parody, Penalty, and Pedagogy."
Copy(write): Intellectual Property in the Writing Classroom. Eds. Martine Courant Rife,

Shaun Slattery, and Dnielle Nicole DeVoss. Anderson: Parlor Press, LLC, 2011. 179204. Print.
"[A]ctivist pedagog[es]" should use YouTube and parody in their classrooms as a
way to get students to be more aware of their own composing practices in and out of the
classroom. Using a different materiality, such as YouTube, changes the conversation from
"text to context." Understanding of the interface along with the genre is a class-privilege
issue. Hall et al. provide a step-by-step assignment for students to do the very work they
propose as well as a grading rubric. The assignment and its detailed plans give educators
enough structure and support to ease them into doing this kind of work in the classroom.
Herrington, TyAnna K. "The interdependency of fair use and the first amendment." Computers
and Composition 15.2 (1998): 125-143. ScienceDirect. Web. 15 Feb. 2015.
Targeting the connection between fair use and the first amendment, also known as
the right to free speech, is a strength of this article. The other publications in this
bibliography include it as a passing comment. Herrington is the first in this collection to
emphasize the National Information Infrastructure (NII) White Paper (1994), which aims
to reduce access. This is an attempted infringement on the publics right to critique and
participate in a "democratic dialogue." In other words, the NII poses an enormous risk to
the right of free speech. The fair use laws allow copying in order to perform social
critique, and users need access to artifacts so they can comment on them. Herrington
writes primarily to encourage educators to exercise their rights. Policymakers want to
deny your and your students right to cultural and social critique; these attempts, if
successful, would have larger social implications like the ones mentioned in Andrea
Lunsfords "Rhetoric, Feminism, and the Politics of Textual Ownership."

Hess, Mickey. "Was Foucault a plagiarist? Hip-hop sampling and academic citation." Computers
and Composition 23.3 (2006): 280-295. ScienceDirect. Web. 16 Feb. 2015.
Academic paper writing (with sources) compares to hip-hops composing process
known as "sampling," the selective arrangement of old and new material used to craft
something entirely new. Hess argues that by learning to sample, students can understand
the process of incorporating scholarly work into their papers, as it is a form of "textual
revision." He also argues that "reverie" for the scholarly material disempowers students.
Sampling builds on existing material, and the (hip-hop) community holds the new piece
in high-regard. So, sampling can help students transcend that dominant/submissive voice
dichotomy while writing their papers. Using this kind of approach asks educators and
students to consider a familiar composing process in a different way, as Ashley Hall et al.
suggest: materiality changes the nature of the conversation and teaches students
something new or different.

Hunter, Dan. The Oxford Introductions to U.S. Law: Intellectual Property. Oxford University
Press, 2012. Print.
The Professor of Law at New York Law School introduces this text with the aim
of balancing theory and practice as they relate to intellectual propertys various branches
He documents its origin and claims that the 1990s (the influence of the computer)
drastically changed the law and views of sharing/copying, especially in regards to the
music industry. He draws the dichotomy between public and private rights, but seems to
endorse a copyleftist perspective--that the laws are solely aimed at protecting corporate

interests rather than those of the individual or creator/author/artist. Hunter also discusses
how one can apply fair use outside the classroom.
Lessig, Lawrence. The Future of Ideas: The Fate of the Commons in a Connected World.
Vintage, 2002. Print.
Lessig predicts the end of the Internets current iteration, one made of sharing
culture, excessive copying, and a free exchange. The nature of the Internet--meaning the
very copy and distribution abilities that sparked a technological revolution (read: cultural
revolution)--will kill the revolution itself. Lessig blames the confusion surrounding
property: Who owns what? If a user buys a movie, do they own that movie? He also
compares strict copyright to creating in a vacuum: "You're totally free to make a movie in
an empty room, with your two friends" (5). Extensive copyright law costs our culture
new creative works because creators have too many obstacles and red tape to go through
(like asking if they can use a certain piece of furniture, for example). Lessig asserts that
stringent control does not benefit the greater good. This publication concerns a more
technical discussion of the Internet, access, and networking and how controlling those
aspects of technology will kill creativity and suffocate the culture born from the current
iteration of the digital; creativity will die if users cannot copy to some extent as the very
nature of creation involves borrowing from what one already knows.
Logie, John. "Response to Part I--'An Act for the Encouragement of Learning' vs. Copyright
2.0." Copy(write): Intellectual Property in the Writing Classroom. Eds. Martine Courant
Rife, Shaun Slattery, and Dnielle Nicole DeVoss. Anderson: Parlor Press, LLC, 2011.
149-156. Print.

Logie develops a historical understanding of copyright, then moves into looking

at the pieces of legislation that he calls "Copyright 2.0." Copyright 2.0 is a patching of
original copyright. Original copyright was designed for analog technologies, not the
endless abilities of copying and distribution of the Internet. By more conservative views,
Copyright 2.0 is conservative and more strictly regulates users who copy, fairly or
otherwise. However, critics contest 2.0 because it implies improvement and overhaul.
In essence, Logie argues for a new copyright system, one that accounts for changing
notions of ownership and authorship and the incredibly influential digital culture and
affordances.
Lunsford, Andrea Abernathy. "Rhetoric, Feminism, and the Politics of Textual Ownership."
College English, 61.5 (May, 1999): 529-544. JSTOR. 12 Feb. 2015.
Copyright law and the "gold rush" culture that surrounds it commodifies the
author, particularly in corporate spaces. This system disenfranchises all creators,
especially women. Lunsford crafts a different perspective of the term "intellectual
property," highlighting the words historical significance, i.e. women and people of color
as property.Scholars should respond by creating a new discourse and culture concerning
ownership and authorial property in the composition classroom. While largely a
theoretical text, Lunsford does provide an interesting and humanizing perspective of
intellectual property law and how it affects and will continue to affect social hierarchies.
The digital space equalizes students and scholars, young and old, male and female; the
Web provides them a platform. Imposing harsh copyright and access legislation steals
their right to speak--the platform--and bestows it almost exclusively to the white male
population that owned it before the digital revolution.

Lunsford, Andrea A., and Susan West. "Intellectual property and composition studies." College
Composition and Communication 47.3 (1996): 383-411. JSTOR. Web. 12 Feb. 2015.
Notions of authorship influence the nature of the US copyright laws. These
increasingly conservative laws do not fulfill copyrights original goal: contributing to the
greater good and improving its progression. For example, the Humane Genome Project
patents vital biological information and cures for humanities' diseases. Patenting this kind
of information prevents its widespread use, methods, and, eventually, medicine from
reaching the hands of consumers including the underprivileged. Contrary to popular
belief, copyright often doesn't serve the creators, people like us. The copyright system
and the wire-for-hire system protect the employers or publication companies, rather than
the individual writer. To tackle this detrimental system, composition teachers should do
two things: 1) develop a stance and be an activist, as the legislation around intellectual
property affects the work that we are allowed to do, despite its educational intents 2)
develop a sense of responsibility in how we, as teachers, assume the embodiment of
knowledge/authorship. What lessons about ownership and authorship are we teaching,
directly or indirectly, in the composition classroom? Lunsford and West also describe the
connections between authorship, copyright, ownership, and plagiarism, as they see all of
these things as intimately tied to one another. However, the essay asks composition
teachers to see "rhetorical invention" differently, but does not provide any suggestions for
how to enact this in a classroom.
Moore Howard, Rebecca. "Plagiarisms, Authorships, and the Academic Death Penalty."
College English 57 (1995): 788-806. JSTOR. Web. 16 Feb. 2015.

Students patchwrite when they selectively alter an existing text. Moores article
responds primarily to views of plagiarism both in the classroom and on an administrative
level, but she briefly mentions copyright, saying that these views of authorship (the ones
that fight back against patchwriting) are similar to the copyright fightfurther attempting
to demarcate between producers and consumers (i.e. writers and readers). While
patchwork doesnt require a discussion about copyright, the attitudes towards, around,
and about patchwork writing certainly belong in a conversation about copyright. The
problem all boils down to the (outdated?) necessity to draw a hard line between who is
producing and who is not, who is the author and who is not, and who owns something
(and therefore has the right to distribute/use) and who does not.
Poltorak, Alexander, and Paul Lerner. Essentials of Intellectual Property: Law, Economics, and
Strategy. 2nd ed. Wiley, 2011. Print.
Think of intellectual property as a valuable object--one that is both tangible and
intangible. It can be lost, damaged, abused, received, etc, and it can have a very different
effect on different communities. Poltorak and Lerner provide clear and concise
definitions of intellectual property and its related concepts. The authors tend to
emphasize trickier parts of the copyright/fair use law: copyright protects an ideas
expression and not the idea itself, if a work doesnt have a copyright symbol that its not
free to copy as copyright can be applied and pursued after publication, etc.
Renee Hobbs, and National Council of Teachers of English.Copyright Clarity: How Fair Use
Supports Digital Learning. Corwin Press, 2010. Print.

Copyright law affects the work that your students can do, thereby influencing
what they can and can't learn and in what ways. Fair use does not protect every classroom
activity, but it protects many. Knowing and protecting your rights by using them. She
emphasizes the rights of the user and examining several examples of
works"transformative" nature (as that directly pertains to fair use). Hobbs work offers
two productive ways of interrogating copyright laws. The filming industrys overly
protective practices, such as scrambling and anti-copying technologies, create an issue of
material access, even when using material fairly. Pirate(r)s often obtain this material
either way, but without fair use intentions. The system does not punish them but users
trying to legally obtain and use these texts. However, no one has questioned fair use when
"copying" occurs within the four walls of a physical classroom; this kind of instruction
weakens with the social media surge and the increasing velocity of conversations about
news, social concerns and criticisms, etc? Students education benefits them most when
addressing real audiences about real issues in real spaces. Excessive fears about copyright
infringement and teachers' ignorance of their and their students' rights cause students to
miss out on critical lessons and learning opportunities. Also important, Good-faith is a
good defense in the unlikely chance that teacher find themselves in a copyright lawsuit.
Hobbs warns teachers and users writ large to beware of intentional misinformation
designed to cause fear and deter even fair use. Some additional resources are provided for
holding a copyright development workshop, such as a compilation of copyright laws.
Rife, Martine Courant. "The fair use doctrine: History, application, and implications for (new
media) writing teachers." Computers and Composition 24.2 (2007): 154-178.
ScienceDirect. Web. 23 Feb. 2015.

Fairly using is akin to avoiding plagiarism in the classroom. The difference is that
fair use does not require attribution. However, both have social repercussions for
violation and both ask students to consider rhetoric and interpretation. In response to
digital technologies and approaches to learning in the classroom, instructors need to teach
plagiarism, as it deals with print, but also teach fair use, as it deals with newer composing
methods. Instructors should not transfer their disregard for legal policies on to their
students, but, rather they should stimulate fair use discussions and strategies for selfinterrogation. Rife gives three recommendations for teaching fair use: situate it in the
actual language of the law, teach it using real, prior and potential, scenarios, and
model [good behavior] when teaching.

Rife, Martine Courant, Shaun Slattery, and Dnielle Nicole DeVoss, eds. Copy(write):
Intellectual Property in the Writing Classroom. Anderson: Parlor Press, LLC, 2011. Print.
The introduction of Copy(write) develops an exigence (recent legislation), which
frames the publications theme: digital fair use. Three sections constitute the publication:
theory, tools, and pedagogy. All three can benefit instructors, but the publication lacks
concrete, sample teaching materials developed using the theoretical work. A collection of
the tools and resources considered throughout the chapters would benefit a teacher
reading this as a tool.
Tushnet, Rebecca. "Judges as bad reviewers: fair use and epistemological humility." Law
& Literature 25.1 (2013): 20-32. Google Scholar. Web. 19 Feb. 2015.

Law school does not train judges to be literary critics, and therefore, they may not
make the most educated verdicts. A piece of creative work ("original" or inspired) may
have more than one interpretation because a text has contains explicit and implicit
meanings. A judge might/can see just one meaning in a text, due to their inexperience
critically reading creative texts, and decides that the meaning that they saw in the text
isn't fair use--thereby damaging the integrity of fair use and setting a precedent of further
empowering copyright holders at the future creators expense. "Epistemological humility"
is the solution. Judges must accept the possibility that another reader could interpret the
text at hand differently than she. To do this, Tushnet urges judges to be humble, consult
other audiences, and/or think from the perspective of another readership to mine a texts
various and competing meanings that might constitute its fair use.
CCCC Caucus. "Use your Fair Use: Strategies toward Action." College Composition and
Communication 51.3 (Feb., 2000): 485-488. JSTOR. Web. 16 Feb. 2015.
Educators may reproduce copies for classroom use. Rather than taking a "use it or
you lose it" approach like many other articles of its kind, this one offers several quick tips
for exercising the right to fairly use, such as avoiding compliance to overly-restrictive
institutional policies and educating copy shops to make handbooks for teachers. The
authors acknowledge that fear and ignorance of the law may cause complacency. Why?
Using fairly is good pedagogy.
Westbrook, Steve. "Visual rhetoric in a culture of fear: Impediments to multimedia production."
College English 68.5 (2006): 457. JSTOR. Web. 19 Feb. 2015.

While textual copyright is tenuous and shaky at best, image usage is even more
dangerous because it is difficult to transform images rather than simply copying them. A
fear of copyright infringement prevents teachers and students from doing experimental
work with visual rhetoric and multimedia composition. Instructors are not asking students
to produce visual rhetoric and multimedia compositions but instead to imagine rather
than actually participate in mark-making activities. Students cannot shape but instead
must be shaped by culture. If they do this work, they are often prevented from circulating
and thereby stripped of agency. Corporations often abuse copyright law to protect their
companys image, a form of censorship. Copyright means control over students, teachers,
and users writ large. This approach teaches students that their production outside of the
classroom is illegitimate and in no way tied to the lessons in the classroom.
Westbrook, Steve. "What we talk about when we talk about fair use: conversations on writing
pedagogy." Copy(write): Intellectual Property in the Writing Classroom. Eds. Martine
Courant Rife, Shaun Slattery, and Dnielle Nicole DeVoss. Anderson: Parlor Press, LLC,
2011.159-177. Print.
Westbrook incorporates a few different arguments that contribute greatly to this
collection of scholarship. For one, he begins by building the idea of a shared common
language--some things are copied, no matter what legislation is created. Westbrook also
complicates what teachers have thought of as fair use in the classroom, and later
problematizes the way in which we approach these issues with students. He asks when
educators encourage students to take their creations outside the classrooms physical
limitations, when we ask students to create digital texts and post them, the fair use model
is complicated; this is not a new argument, per say, but he uses this exigence to talk

about, most importantly, how the language we use influences our students to think about
copyright, giving them the wrong ideas on either end of the spectrum. Educators rarely
find a balance, giving them too much power or stripping them away of any rights and
agency. Westbrook opposes the copyright as imperative (i.e.you must always ask for
permission) and further explores the language in textbooks using this kind of rhetoric,
which avoid explaining fair use in an accessible way. Westbrook then argues that writing
instructors should import the four-factor test into the writing classroom. Using Rife's
work, he argues that the test would educate students about their rights and how that can
influence the copyright law in the future, teach them ethics, and increase student agency
(in "rhetorical decision-making"). This article gives more direct and practical advice
about incorporating copyright into the conversation students are having in class.