Day: Writing, Hacking, and Intellectual Property: Navigating New Composition Spaces
Session 1: Navigating New Terms: Writing, Hacking, and Intellectual Property
Session 2: Applications of Writing, Hacking, and Intellectual Property
Session 3: Introducing Legal and Ethical Dilemmas into Composition Spaces
Session 1:
When I was looking over the past brochures for the Gribben Lecture my initial reaction
was some blend of humility and intimidation. Chris Thais, Becky Moore Howard, Susan
McLeod, Mike Palmquist, Chris Anson, David Jolliffe, Cheryl Glenn, Kathy Yancey,
Cindy Selfe. So, it is a huge honor for me to be here. And, it is a nice bonus that I get to
see some old friends. Thank you.
There’s a lot to talk about so let’s get started… You may be asking yourself why you’re
about to engage in a discussion on intellectual property and hacking? What do those two
things, whatever they may be exactly, have to do with writing? Fair questions, certainly,
and the ones I’d expect (hope) you to have. So, the first order of business is to provide a
little history and a little definition for two terms you’re perhaps less familiar with – IP
and hacking – and then I’ll say just a little bit about how writing fits into the mix.
If there is one, large, overarching claim for the day it would be that among the
disconnects between writing in the classroom and writing in the workplace intellectual
property and the sanctioned and unsanctioned modifications to that property (i.e.,
hacking) represent important, unexplored teaching opportunities for writing instructors.
Why does IP represent a disconnect? Because while it remains critical to teach research
and citation methods in writing courses as well as engage students in a productive
dialogue about plagiarism, these things are not the same as developing, protecting, and
profiting from an IP portfolio – in the second session, I’ll demonstrate some specific
relationships between writing and IP generation. And, not only do I hope to persuade you
of this claim in the morning sessions, I’d like to invite you to participate in a few writing
activities this afternoon that ask you to engage with intellectual property law, ethics, and
hacks – in this specific case counterfeit hacks.
IP
To clarify, the “property” that intellectual property law protects is unlike a car or a
bicycle, for example. Unique characteristics distinguish IP from other tangible goods. As
defined by the World Intellectual Property Organization, “Intellectual property relates
to items of information or knowledge, which can be incorporated in tangible objects at
the same time in an unlimited number of copies at different locations anywhere in the
world. The property is not in those copies but in the information or knowledge reflected
in them.” In the instance of a car, within the design of the vehicle there may be
engineering concepts protected by intellectual property that make it more fuel efficient.
As the car and its design are mass produced, intellectual property law does not prevent a
buyer from dismantling, modifying, or reselling the car but it does stop a competitor from
copying, manufacturing, and profiting from the “information or knowledge” enabling the
car to be more fuel efficient. So, to be clear, if you buy a bike, like this one – a regular
Schwinn bike – there is nothing stopping you from doing this to it. We’ll get to
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definitions of hacking in a minute but for the record, this definitely counts. And, despite
the limited market for boot bikes, there is nothing stopping this hacker/creator/inventor
from selling his modification and profiting from it. The same goes for any tangible good
like, say, a book.
The dilemma, according to legal scholars, is that, “It is especially difficult physically to
exclude people from using others' intangible ideas, and sometimes even the physical
embodiment of those ideas and to arrange necessary compensation for creators” (Nard,
Barnes & Madison, 2006, p. 14). Here we need to pause on a couple of key IP terms.
Non-rivalrous
One of two distinct features of information goods. Non-rivalrous goods are those that
many people can use without interfering in the pleasure or benefit others get from the
same information. E.g., one person’s use of the creative ideas embodied in a poem does
not interfere with another’s use of those ideas.
Non-exclusive
The second distinct feature of information goods. Once information or an idea is
disclosed, it is very difficult to start excluding people from using that information.
The problem is exacerbated when the property in question can be digitized. Computers
facilitate the copying of works protected by intellectual property laws to the point of
effortlessness. The speed and connectivity of the internet means a potentially enormous
distribution of that property. In the case of the car, a competitor stealing ideas will at the
very least incur engineering and production costs that may or may not deter infringement
(plus they had to buy an actual car). This is not to disregard the costs associated with
computers and connectivity but for many the cost of access to technology continues to
decrease to the point where it is no longer a deterrent. There is a long line of legal
scholars claiming that our emergent technologies have “caused the law to lose its
bearings” and that there exists "an extreme disparity between the cost of creation and the
cost of making and distributing copies, which indeed approaches zero whenever the copy
is made electronically and is distributed over the Internet.” As a result, corporations
clamor for increased legal regulation. That clamor is heard the loudest from organizations
such as the Recording Industry Association of America (RIAA) and the Motion Picture
Association of America (MPAA) but it also comes from any number of sources including
pharmaceutical and chemical companies, publishing houses, engineering firms, and, as
we’ll see later, spaces where there isn’t much IP protection like fashion. When
physicality and materiality no longer provide protection against unwanted copying and
distribution of intellectual property, disciplinary values will be at odds with one another.
THESE ARE THE COMPANIES THAT WILL EMPLOY OUR STUDENTS – THE
ONES WE ARE TEACHING TO WRITE.
Among the types of intellectual property law including patents, trademarks, and trade
secrets, copyright law, thanks to our digital age, has the center stage for contestation. Can
someone tell me where copyright law comes from? That is, where, how, or in what
document is it grounded in?
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Copyright law in the United States can be traced back to Article 1, Section 8, Clause 8
of the Constitution which reads, “The Congress shall have Power…To promote the
Progress of Science and useful Arts, by securing for limited Times to Authors and
Inventors the exclusive Right to their respective Writings and Discoveries.” The term
"Writings" has been interpreted broadly to encompass creative works such as music,
drama, film, graphics, novels, sculpture, and now computer code. Copyright law has
undergone numerous revisions to not only make it easier for creative works to receive
protection but also to extend the length of protection. Does anyone know how long
creators hold onto copyright?
Creative works produced after January 1, 1978 “are protected by copyright for 70 years
past the death of the last surviving author. If a work was made for hire after that date, the
term is 95 years from first publication” (ASME, 2001, p. 24). Copyright protection takes
effect when an intangible idea takes on a fixed form of some kind. Once in a fixed form,
protection is automatic and a creator is not required to register for the copyright unless he
or she is going to litigate (see copyright.gov, an office of the Library of Congress). As
copyright protects an enormous array of human creative works, that fixed format may be
a piece of paper, canvas, sculpted stone, or a computer drive. Whether we agree with the
length of the term or not, copyright is designed to incentivize creators to invent by
promising protection for their works.
Patent
How about patents? They have their origin in the Constitution as well and are also
designed to incentivize. But, they afford different protections. The proper subject matter
is very broad – in the words of the U.S. Supreme Court, “anything under the sun and
made by humans.” OK, that’s not very helpful but patents do include "any new and useful
process, machine, manufacture, or composition of matter, or any new and useful
improvement thereof.” Those compositions include living materials such as genetically
engineered bacteria, plants, or animals. Primary criteria for a patentable invention are that
it must be useful, novel, and non-obvious. How long are patents valid? Most patents are
valid 20 years from the time of filing. Patents and our next topic, trademarks, are
managed through the USPTO.
Trademark
But, unlike patents, trademark doesn’t originate with the Constitution but the passing of
the Federal Trademark Act or what is often called the Lanham Act. Here trademark is
defined as…any word, name, symbol, or device or any combination thereof which is used
by a person…to identify and distinguish his or her goods, including a unique product,
from those manufactured or sold by others and to indicate their source.
If copyrights and patents are thought to provide a social good by incentivizing inventors
to create more stuff – what is the social good behind trademark?
Trademarks provide consumers with a method of distinguishing goods or services of one
company from another. If you like the quality of the product, you generally will want to
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buy it again. This favorable acceptance is an intangible benefit to the company called
‘good will.’ Established good will is often difficult to attach a dollar amount to. But, there
is a long history of trademark litigation and most of it falls under the category of
trademark infringement.
Trademark Infringement
An unauthorized, conflicting use of a trademark that confuses consumers about the
source of the goods or services. Unauthorized uses can damage good will and dilute a
brand. We’ll see infringement this afternoon when we look at some counterfeit goods.
Remember McDowell’s from Coming to America?
Finally, how long does trademark last? As long as the company or individual works to
use or protect the brand, trademark can last forever.
Trade Secret
Last one! Trade secrets can also last forever so long as the company or person does a
good job protecting that IP. That is, trade secret protects secret business information
against unauthorized use or disclosure by anyone who has obtained it. Most of you are
probably familiar with non-compete or non-disclosure agreements that employees are
asked to sign when joining a company or receiving access to sensitive IP. These
agreements certainly do hold up in court but trade secret is still understood as the weakest
of the four IP categories. Can anyone think of the two most well-known (yet unknown)
trade secrets out there? Coke and KFC.
HACKING
What is hacking? Where have you seen the word ‘hacking?’
Hollywood, certainly promotes a particular image. I don’t want to call a 1995 Sandra
Bullock movie prescient but…the tag line still seems quite relevant.
Hacking was taken up by composition folks or I should say, hacking came to composition
folks when Lawrence Lessig gave the key note at the 4Cs conference in 2005. This
concept of remix, a title of one his books, is a term many of us have embraced as a means
for discussing what Howard calls patch-writing. So, hacking here has evolved into remix
and that has turned into mash-ups or even multimodal composition. My colleague has coauthored a textbook on it – maybe you’ve seen it.
Prof. Hacker, where the word hacker takes on meaning of a move toward efficiency.
How can you manipulate a tool, process, or organization to improve performance as a
teacher or researcher?
And the term has exploded elsewhere on the web. Search for a term like ‘daily hacks,’
and you’ll get a dozen or so sites on how to hack just about anything. Many of these sites,
like lifehack.org – their menu items are on screen – offer broad categories with
hacks/modifications for your personal life, finances, health, and overall productivity.
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A few years ago I wrote an article for Computers and Composition Online on hacker
ethics and I began with the open source advocate Eric Raymond’s definition: An expert
or enthusiast of any kind. One might be an astronomy hacker, for example. According to
Raymond, a hacker also: “enjoys the intellectual challenge of creatively overcoming or
circumventing limitations.” And it is the enjoyment found in the activity – the pleasure
gained from tinkering, manipulating, making, creating, or, gasp, even counterfeiting or
forging, is where I’d like to focus our attention for a definition. Pekka Himanen’s
marvelous book, The Hacker Ethic: A Radical Approach to the Philosophy of Business
offers hacking as “the dedication to an activity that is intrinsically interesting, inspiring,
and joyous.” Of course that’s how we hope all of our students feel about their writing and
even if they don’t, it is a nice goal for us to keep in mind.
Himanen’s book is especially interesting because it pits a new work ethic, the hacker
ethic that espouses individual interests, inspiration, and joy against what is typically
understood as our historic roots in a Protestant work ethic – or the tradition of the moral
value of hard work, frugality, and diligence as a means to success or for the devout,
salvation. According to Max Weber, that work ethic also underpins capitalism.
So, what we’re left with is an ethic versus an ethic. Before moving on I should pause and
define what I mean when I say ethics – emphasis on the ‘s’. Broadly, we understand
ethics as the well-established standards of right and wrong that influence what humans
ought to do, usually in terms of honesty, fairness, obligations, and benefits to society/our
fellow citizens. Of course this begs the question, well-established for whom? Social
standards and norms have obviously evolved quite differently over the course of history
and now in online communities the rise of the hacker ethic makes for some interesting
debate as we’ll see this afternoon.
WRITING
So, finally, let’s turn to writing. When I was putting together my notes for the talk I
initially was going to skip over ‘writing’ as a term. I mean it’s writing, that’s what we do,
so, next slide please. But…then I realized that might be a bad idea for several reasons.
I’m not going to pretend to surprise this experienced crowd of composition teachers with
definitions of writing but I want to make sure I’m as clear as I can be about what’s going
through my head when I say ‘writing.’
My field of professional and technical communication inherited definitions of writing
from the 1940s (primarily from the engineering and science communities) and has
struggled to shake off definitions of writing that cast it as mechanistic and in service to
objective representations of the Truth (capital ‘T’) discovered out here in the ‘real’ world.
‘Good’ writing does its best to get out of the way of obscuring the Truth –
metaphorically, writing is a vehicle for unerringly transporting meaning or elsewhere a
signal transferring a message with the least amount of noise or distortion. Back in 1979
(yes, 1979), Carolyn Miller published her now famous “A Humanistic Rationale for
Technical Writing,” in which she borrowed James Kinneavy’s “windowpane theory of
language” as her preferred metaphor for objective and positivistic approaches to writing.
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Good writing means a clear, clean window through which we see reality. No streaks on
the glass. This is indicative of a positivistic view of science and engineering. Positivism,
Miller reminds us, “is the conviction that sensory data are the only permissible basis for
knowledge; consequently, the only meaningful statements are those which can be
empirically verified” (612).
This view discards rhetoric by assuming not just that Truth is findable but that science
and engineering communities are somehow a-rhetorical – that scientists and engineers
don’t write and communicate in socially constructed, deliberative spaces. Writing and
rhetoric scholars have pushed past such definitions but it is worth reminding ourselves
that…
All writing…technical, professional, business, legal, scientific, cookbooks, grocery lists,
has humanistic value – all writing has rhetorical qualities. Why is that an important
reminder? Of course it is important for our composition students when we’re talking
about the situated, purposeful, audience-focused, and strategic writing that we ask of
them in the classroom (and that will be asked of them in the workplace). But…
I’d also like to focus on another quality or rather another claim for rhetoric and writing
dating back this time to the 60s. I wasn’t there but I’m told a lot of fun stuff happened in
the 60s…
Including, in 1967 Robert Scott publishing… On Viewing Rhetoric as Epistemic. And
what he wanted to showcase was the knowledge producing powers of rhetoric. That in
the absence of truth, we use the deliberative powers of rhetoric to arrive at what we call
knowledge. And, because it is the 60s we also have sexist language and no gestures
toward gender equality – my apologies on behalf of Scott but:
Man must consider truth not as something fixed or final but as something to be created
moment by moment in the circumstances in which he finds himself and with which he
must cope…In human affairs, then, rhetoric perceived in the frame herein discussed, is a
way of knowing; it is epistemic.
I want to prove to my students that their writing makes things happen. We can theorize
about epistemology with our students, even have them debate the merits of Scott’s
articles and the many others that have com after it, but it is another thing to throw them
into the mix and show them writing at work. So, this afternoon I hope not to bore you
with some specific stories about how writing in the workplace shows off its epistemic
qualities and how that writing generates knowledge that can receive IP protection in the
form of trademarks, patents, and of course copyright. Questions and comments…
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