actually, you might not even need 'informed consent' at all. in fact, you probably don't need it. you may not even need to disguise your research subjects. the first step is 'do not go overboard' in your ethical assumptions. the second step is to contact someone who has published something similar to what you are doing. posting to general lists like this will get your general and usually very nervous responses. experience counts, look at your bibliography, see who has done what, write them specifically. your context and country counts more than anything else. the third step is to check your newly found opinions against the aoir guidelines, which then will make you check against both your disciplinary ethical guides and your legal situation. with those three steps in hand, you are set. If you don't do step 2, check with people who you cite, you will likely get it wrong. Start with who you cite, base your ethical stance on prior work, so you know your tradition, and you know its requirements. Don't worry about too much otherwise. don't worry about the international or american context unless prior researchers in your country have worried and found ways to deal with it. I worry about the 'contact me offline' below. it suggests to me that there is some 'secret knowledge' that cannot be known. There is none. On Aug 9, 2007, at 7:51 AM, Heidelberg, Chris wrote:

Brooks contact me offline and I can explain what you can do to keep yourself safe legally at least from an American perspective. Swiss law may differ somewhat. The key is to get written agreements with everyone to cover yourself in the event that you decide to publish commercially. You need to place that in your informed consent form so that folks understand that you own the rights to the research and that they consent to your use of their names, pseudo-names and likenesses. Get a creative commons license.

-----Original Message----- From: air-l-bounces@listserv.aoir.org [mailto:air-l- bounces@listserv.aoir.org] On Behalf Of brook bolander Sent: Thursday, August 09, 2007 3:13 AM To: air-l@listserv.aoir.org Subject: [Air-L] Dissertation

Dear AOIR,

I am writing my PhD on the subject of "power in blogs", and thereby exploring how power is negotiated in the interaction between bloggers and their readers, and between the readers themselves in the comments sections of blog posts in which conflicts are salient. I have received an initial e-mail confirmation from the bloggers that they consent to my research and have given them the option of requiring me to use psuedonyms. I now intend to write to the bloggers, asking for their addresses, so I can outline the project in more detail and obtain written consent.

I am aware, however, that research on the internet can be very complicated in terms of ethical issues. What I am less sure about are the legal issues. Am I correct in assuming that if I do not include quotations, use pseudonyms for the readers (whose permission I have not gained), use pseudonyms for those bloggers who ask me to (one blogger has explicitly asked me not to), gain written consent from the bloggers themselves and inform them in the letter what the study entails, that I will run into no ethical or legal problems? All my bloggers state they are adults.

Or do I need to write to the hosts as well, like blogger, for example, to ask for their permission as well?

One of the bloggers asked me whether she would have any problems vis à vis her readers if she consented to my study, for example, and I found I didn't really know, with any certainty, what to reply.

I hope that my PhD will be published in a couple of years, and am not sure whether that plays a role in terms of its label as something for 'commerical purposes'. I am writing my PhD in Switzerland.

I really want to go about this the right way and am having problems gaining the information I need.

Thanks a lot in advance for your help, Best wishes Brook Bolander _______________________________________________ The Air-L@listserv.aoir.org mailing list is provided by the Association of Internet Researchers http://aoir.org Subscribe, change options or unsubscribe at: http://listserv.aoir.org/ listinfo.cgi/air-l-aoir.org

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Jeremy Hunsinger Information Ethics Fellow, Center for Information Policy Research, School of Information Studies, University of Wisconsin-Milwaukee (www.cipr.uwm.edu) Words are things; and a small drop of ink, falling like dew upon a thought, produces that which makes thousands, perhaps millions, think. --Byron

Dear Åsa Rosenberg, Thanks a lot for your informative and interesting e-mail. You make a good point about the use of quotations, and I will have to re-think that aspect, although since my analysis will be linguistic, it will be easier to point to uses of linguistic and paralinguistic features, without quoting the clauses in which they are found, than in other forms of research. Do I understand you correctly that it is more a matter of ethics, than legal issues with regards to the blogger, who has concerns consenting for her readers. The way I see it, I can reply to the blogger that she is welcome to inform her readers in a post that the blog is being observed for research, but that there are no legal problems in her informing me that I may study her blog, as long as I anonymize the readers etc.? Best wishes Brook

Hi, all, I already answered Brook in private, but I'll do it in a more public venue as well, since I've done a little work that looks at blogs, as have several of my students. Generally, I consider anything published to the world to be public, and make the assumption that the person publishing it understands this. I understand that some bloggers--especially, but not only, children--do not fully appreciate the potential repercussions of publishing something publicly. The same could be said, though, of any form of publishing, and it is a slippery slope to suggest, for example, that I should have to check with the author of an article before quoting it. I think that any blog that requires any sort of log in is off limits, even if anyone can randomly log in to gain access. I'd be willing to be challenged on that, but I think of it as a rule of thumb. So, for example, some MySpace and Livejournal pages are only available to subscribers (same deal for most social network profiles), and I think these have to be handled differently. Anonymizing blogs becomes pretty irrelevant if you include quotations. I've been pretty surprised to see published articles that seek to anonymize discussion in pubic forums but then include quotations. Search engines make such anonymity extremely thin. I got the impression that some of Brook's research involves surveys or interviews, which is a different matter--particularly if the results of those surveys are somehow tied to the public content of the blogs, since there exists the possibility of making those comments attributable. But if the content is on the wild wide web, I think it is fair game. Alex On 8/9/07, brook bolander <brookbolander@gmail.com> wrote:

Dear Åsa Rosenberg,

Thanks a lot for your informative and interesting e-mail.

You make a good point about the use of quotations, and I will have to re-think that aspect, although since my analysis will be linguistic, it will be easier to point to uses of linguistic and paralinguistic features, without quoting the clauses in which they are found, than in other forms of research.

Do I understand you correctly that it is more a matter of ethics, than legal issues with regards to the blogger, who has concerns consenting for her readers. The way I see it, I can reply to the blogger that she is welcome to inform her readers in a post that the blog is being observed for research, but that there are no legal problems in her informing me that I may study her blog, as long as I anonymize the readers etc.?

Best wishes Brook _______________________________________________ The Air-L@listserv.aoir.org mailing list is provided by the Association of Internet Researchers http://aoir.org Subscribe, change options or unsubscribe at: http://listserv.aoir.org/listinfo.cgi/air-l-aoir.org

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-- -- // // This email is // [X] assumed public and may be blogged / forwarded. // [ ] assumed to be private, please ask before redistributing. // // Alexander C. Halavais // Social Architect // http://alex.halavais.net //

Hi Alex! Okay, I'll challenge this, LOL! Articles that are found in subscription databases are constantly cited, and all you have to do is provide info about your level of access.

What makes MySpace or Livejournal different from database collections?

Presumably journal articles have already gone through the local ethics/institutional review process as they're written. We also have an expectation that journal articles are written with the intent of publication - they're not accidental. --e

Alex Halavais wrote:

...

I think that any blog that requires any sort of log in is off limits, even if anyone can randomly log in to gain access. I'd be willing to be challenged on that, but I think of it as a rule of thumb. So, for example, some MySpace and Livejournal pages are only available to subscribers (same deal for most social network profiles), and I think these have to be handled differently.

Good, good, -- I was thinking this way too as to your first point. The problem with the second point is that I argue in my diss that ALL electronic and computer writing must be considered to some degree "public": it's not a dichotomous construct. If people did not want their information to be considered "published," then they should write it on paper and keep it under their mattresses, not type it into large databases that are collected, spidered, and searched by other online tools. So by default for me, all internet work has been intended for publication. Maybe to limited audiences, like when someone posts pics of themselves getting drunk in Facebook, but the fact of the matter is, it's still more in the public space than in the private one. -- :-D. elw@stderr.org wrote:

Presumably journal articles have already gone through the local ethics/institutional review process as they're written.

We also have an expectation that journal articles are written with the intent of publication - they're not accidental.

--e

deanya wrote:

...

Hi Alex! Okay, I'll challenge this, LOL! Articles that are found in subscription databases are constantly cited, and all you have to do is provide info about your level of access.

What makes MySpace or Livejournal different from database collections?

...

Alex Halavais wrote:

...

I think that any blog that requires any sort of log in is off limits, even if anyone can randomly log in to gain access. I'd be willing to be challenged on that, but I think of it as a rule of thumb. So, for example, some MySpace and Livejournal pages are only available to subscribers (same deal for most social network profiles), and I think these have to be handled differently.

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sorry. I don't agree On Aug 10, 2007, at 10:55 AM, M. Deanya Lattimore wrote:

If people did not want their information to be considered "published," then they should write it on paper and keep it under their mattresses, not type it into large databases that are collected, spidered, and searched by other online tools.

excuse me. "Publishing" something does NOT remove intellectual property rights. In fact, those rights first become attached to the ideas when they are "published" (put into form). When I play a song I've written on the street corner, or in a bar, or at a concert, I'm "publishing" it "in public." Doing so does not give ANYONE permission to use it without my permission. "Fair use" allows the use of very small portions of it for teaching or research, but only under certain conditions. And the Teach Act modifies those allowed uses even further in the case of online educational purposes.

So by default for me, all internet work has been intended for publication. Maybe to limited audiences, like when someone posts pics of themselves getting drunk in Facebook, but the fact of the matter is, it's still more in the public space than in the private one.

I think that the notion that the internet is a public space is contestable. I would argue that the network of computers, routers, wires and other technological stuff are almost ALL privately owned entities . . . sort of like a great land filled with connected malls . . . a mall is not a public space at all... it's private land often FILLED with people doing stuff in the presence of others. But the internet is not at all like public lands (city, county, state, federally owned public space). Further, even if there is a "public feel" to internet published stuff, and putting aside for a moment the implications of the DMCA, the Teach Act, and copyright law (not to mention a ton state laws concerning "rights of publicity and privacy"), I reject the notion that even bloggers who publish stuff are giving informed consent to become research subjects. Edward Lee Lamoureux, Ph. D. Associate Professor, Multimedia Program and Department of Communication Co-Director, New Media Center 1501 W. Bradley Bradley University Peoria IL 61625 309-677-2378 <http://slane.bradley.edu/com/faculty/lamoureux/website2/index.html> <http://gcc.bradley.edu/mm/> AIM/IM & skype: dredleelam Second Life: Professor Beliveau

doesn't really matter if the is derivative or novel . . . (although this distinction does matter in some situations). academic citation practices DO work, under the law and fair use, because the quoted material is a small amount of the whole and citation gives credit. Taking the whole is not allowed, taking a large portion is not allowed, and in certain cases, taking a little isn't allowed (if doing so would compromise the market for the work, for instance). but the use to which you refer (quoting a small amount and citing it) is NOT THE SAME USE as is collecting data for a research project. Data collection is using the material generated by subjects for the purposes of research. In that case, the subjects should give their informed consent unless the data collection falls under the various exemption provided for observational research (random and anonymous, untraceable to subject, etc.). And in the case of those exemptions, a particular subject protection review board as given permission for that exemption. Further, use that such data, as data, is NOT the same as using that material as a referenced writing . . . and therefore does not accrue the same practices to cover the copyright aspect. So .... IF your ARB has looked at the protocol and says "this is purely observational, or records, etc. and is untraceable to the source, so therefore meets the conditions of the exempt categories for observational research" THEN one's pretty much in the clear without permission from subjects IF that's what the board agreed to. But the exemption IS NOT THE DEFAULT CONDITION.... it must be applied for. Until it is granted, the default condition is that informed consent and subject protection protocols must be used. Fair use is slippery . . . it's almost ALWAYS better to assume that if you did not write it, you can't use (very much of) it without permission. On Aug 10, 2007, at 11:34 AM, Jeremy Hunsinger wrote:

I suggest that for most of the purposes of research, the use of the materials in question from the internet are not derivative uses, but novel uses and thus the inclusion of copyrighted material under the rubric of fair use does not matter so long as the inclusion is properly cited and referenced. However, I am not a lawyer and would prefer to hear from some of the notable law professors on this. Because the rule on citing and using texts from the internet, in my opinion, must be the same or a very close rule to using any other copyrighted text. If i can quote and cite from a book as evidence.... then, published materials on the internet must follow a similar rule, no?

Edward Lee Lamoureux, Ph. D. Associate Professor, Multimedia Program and Department of Communication Co-Director, New Media Center 1501 W. Bradley Bradley University Peoria IL 61625 309-677-2378 <http://slane.bradley.edu/com/faculty/lamoureux/website2/index.html> <http://gcc.bradley.edu/mm/> AIM/IM & skype: dredleelam Second Life: Professor Beliveau

My response. Ed Lamoureux wrote:

excuse me. "Publishing" something does NOT remove intellectual property rights. In fact, those rights first become attached to the ideas when they are "published" (put into form). When I play a song I've written on the street corner, or in a bar, or at a concert, I'm "publishing" it "in public." Doing so does not give ANYONE permission to use it without my permission. "Fair use" allows the use of very small portions of it for teaching or research, but only under certain conditions. And the Teach Act modifies those allowed uses even further in the case of online educational purposes.

Hm, interesting. It's more of a philosophical issue to me than a legal one, the answer to whether street performance of a piece grants another the right to play it. This is especially pertinent in your analogy to the net, because of the compartmentalization of spaces. For instance, while you as a street performer might take issue with my playing your song on the corner opposite you, what if I'm doing it on the other side of town? What if on another continent? While word might eventually reach your ears of this, don't assume that you could use a search engine to find work you made--especially if it's multimedia, an area in which the search industry is trying desperately to improve performance. I think that in any discussion of digital media, we must expect at least a few people on this list to espouse nontraditional beliefs on the nature of IP and the rights affiliated with them.

I think that the notion that the internet is a public space is contestable. I would argue that the network of computers, routers, wires and other technological stuff are almost ALL privately owned entities . . . sort of like a great land filled with connected malls . . . a mall is not a public space at all... it's private land often FILLED with people doing stuff in the presence of others. But the internet is not at all like public lands (city, county, state, federally owned public space).

A good deal of the internet is indeed public. I feel this matter was adequately discussed in the recent thread about consent for a dissertation, but I'll recap and say that if information requires no registration with the website hosting it, then it can be considered public. I agree wholeheartedly with this. If you are chatting in a cafe, you need to understand that what you say can be heard by those around you. Obfuscating verbal transmissions by sitting in a car with the music on might help, but I won't say it's an airtight recourse. More to the point, the concourse of a mall is by my definition completely public. It seems to me that you're focusing more on the legal issue of who provides the funding for the construction and maintenance of the space; because a mall is composed primarily of private entities, it is therefore commercial/private rather than "public." I disagree, and I won't even get into the argument that the tax breaks given in order to facilitate the erection of commercial institutions could possibly constitute public involvement and thereby throw a wrench in the works of your classification. Rather, I believe that because it's "FILLED with people doing stuff in the presence of others" AND because it requires no "log in" such as an admission price. It only requires the commercial capital necessary to navigate the system, such as a car and roadway (and gasoline). Go to your "public" library and all the analogous materials are provided to you.

Further, even if there is a "public feel" to internet published stuff, and putting aside for a moment the implications of the DMCA, the Teach Act, and copyright law (not to mention a ton state laws concerning "rights of publicity and privacy"), I reject the notion that even bloggers who publish stuff are giving informed consent to become research subjects.

This is perhaps an incendiary statement, but I think that to some degree, human beings living their lives need to understand that they will inevitably become statistics. That's participating in research, is it not? Use a credit card, vote, watch TV, pay your electric bill, gas up your car... all this is logged and assessed somewhere, to some degree.

Edward Lee Lamoureux, Ph. D. Associate Professor, Multimedia Program and Department of Communication Co-Director, New Media Center 1501 W. Bradley Bradley University Peoria IL 61625 309-677-2378 <http://slane.bradley.edu/com/faculty/lamoureux/website2/index.html> <http://gcc.bradley.edu/mm/> AIM/IM & skype: dredleelam Second Life: Professor Beliveau

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we should be clear that putting them into form.... requires them to not be your composition and not a prior composition or prior idea... no? On Aug 10, 2007, at 4:32 PM, Ed Lamoureux wrote:

sorry IP law is really clear on this. once I put the ideas into form, they are protected by copyright law. You can't copy my song without permission. If you do, it's infringement. Doesn't matter where you do it. If I find out about it, I can seek a cease and desist order

a good bit of the compulsary license is aimed at mechanical reproduction. left over from piano rolls, then from juke boxes and the like. this goes to the composers and publishers. the performance right created in the 1970s protects the performers who were for the first time recognized as creative contributors with something at stake. before that bands were work for hire performing the works of the creative, the constucted composer (more often an owner with the composer as a front). so that a public performance of a piece of recorded music might benefit not only the composer but the band (both constructed with the actual performer and composer's rights removed or diluted). now stream that music on the internet. another right is exerted. now the performance rights even of the backup singers are to be rewarded and paid to one organization, sound exchange. all of this is pretty much off topic and highly reductive. folks seriously interested are refered to "This Business of Music: The Definitive Guide to the Music Industry" By Sidney Schemel, M. William Krasilovsky or to Paul Goldstein's many writing's including Copyright's Highway (a bit dated but readable by nonlawyers). Those who are more questioning might read Lessig's various books, Boyle's Shamans, Software and Spleens (again time has put some pressure on this) and Jessica Litman's Digital Copyright. On Fri, 10 Aug 2007, Ed Lamoureux wrote: + +On Aug 10, 2007, at 4:35 PM, Jeremy Hunsinger wrote: + +> we should be clear that putting them into form.... requires them to +> not be your composition and not a prior composition or prior +> idea... no? + +sorry.. did you mistype this? To be properly protected, the stuff has +to have been mine in the first place + + +as noted in a later post, I DID fail to fully explain the analogy to +music and the relationship to the compulsory license system. +Once I've written the words down, or noted the music or played it.... +in writing, the work is protected (if it was mine to start with) from +ANY copying other than that which is allowed via fair use or my +permission. +In music, the work is protected from copying (that is, re- +transcribing the notes as though they were yours) AND from public +performance, but in the case of the latter, the protection is +afforded through compulsory licensing that compensates me for your +public performance . . . you don't have to ask, but you do have to pay. + +> On Aug 10, 2007, at 4:32 PM, Ed Lamoureux wrote: +> +>> sorry +>> IP law is really clear on this. +>> once I put the ideas into form, they are protected by copyright law. +>> You can't copy my song without permission. If you do, it's +>> infringement. +>> Doesn't matter where you do it. If I find out about it, I can seek a +>> cease and desist order + +Edward Lee Lamoureux, Ph. D. +Associate Professor, Multimedia Program +and Department of Communication +Co-Director, New Media Center +1501 W. Bradley +Bradley University +Peoria IL 61625 +309-677-2378 +<http://slane.bradley.edu/com/faculty/lamoureux/website2/index.html> +<http://gcc.bradley.edu/mm/> +AIM/IM & skype: dredleelam +Second Life: Professor Beliveau + + + +_______________________________________________ +The Air-L@listserv.aoir.org mailing list +is provided by the Association of Internet Researchers http://aoir.org +Subscribe, change options or unsubscribe at: http://listserv.aoir.org/listinfo.cgi/air-l-aoir.org + +Join the Association of Internet Researchers: +http://www.aoir.org/ + ========================================================================== Paul Jones "Work as if you live in the early days of a better nation." Alasdair Gray http://www.ibiblio.org/pjones/blog/ pjones@ibiblio.org NEW voice: (919) 360-7740 fax: (919) 962-8071 ===========================================================================

So.... when you look at blogs... you find them to be the sole and original composition of a single author? because I find this a curious position because I find so very little in the world that fits this position of 'mine in the first place'. I mean your book which is coming out on this topic has to be derivative of the original texts, laws, and practices combined with your opinions, so I'm wondering what the base of the concept of originality, this is not to say that blogs are not copyrightable... the question is ... whose copyright is there on what page. On Aug 10, 2007, at 5:31 PM, Ed Lamoureux wrote:

On Aug 10, 2007, at 4:35 PM, Jeremy Hunsinger wrote:

...

we should be clear that putting them into form.... requires them to not be your composition and not a prior composition or prior idea... no?

sorry.. did you mistype this? To be properly protected, the stuff has to have been mine in the first place

as noted in a later post, I DID fail to fully explain the analogy to music and the relationship to the compulsory license system. Once I've written the words down, or noted the music or played it.... in writing, the work is protected (if it was mine to start with) from ANY copying other than that which is allowed via fair use or my permission. In music, the work is protected from copying (that is, re- transcribing the notes as though they were yours) AND from public performance, but in the case of the latter, the protection is afforded through compulsory licensing that compensates me for your public performance . . . you don't have to ask, but you do have to pay.

...

On Aug 10, 2007, at 4:32 PM, Ed Lamoureux wrote:

...

sorry IP law is really clear on this. once I put the ideas into form, they are protected by copyright law. You can't copy my song without permission. If you do, it's infringement. Doesn't matter where you do it. If I find out about it, I can seek a cease and desist order

Edward Lee Lamoureux, Ph. D. Associate Professor, Multimedia Program and Department of Communication Co-Director, New Media Center 1501 W. Bradley Bradley University Peoria IL 61625 309-677-2378 <http://slane.bradley.edu/com/faculty/lamoureux/website2/index.html> <http://gcc.bradley.edu/mm/> AIM/IM & skype: dredleelam Second Life: Professor Beliveau

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jeremy hunsinger Information Ethics Fellow, Center for Information Policy Research, School of Information Studies, University of Wisconsin-Milwaukee (www.cipr.uwm.edu) () ascii ribbon campaign - against html mail /\ - against microsoft attachments http://www.aoir.org The Association of Internet Researchers http://www.stswiki.org/ stswiki http://cfp.learning-inquiry.info/ LI-the journal http://transdisciplinarystudies.tmttlt.com/ Transdisciplinary Studies:the book series

Sorry, but Ed's point needs to be challenged in several ways: (1) "According to US Copyright Law" -- there's no such thing as a generic universal "IP law." And (2) Within US Copyright Law, the Fair Use provision does sanction *some* forms of copying without permission. It does matter where you do it, how you do it, and how much you do it. Jim Porter

sorry IP law is really clear on this. once I put the ideas into form, they are protected by copyright law. You can't copy my song without permission. If you do, it's infringement. Doesn't matter where you do it. If I find out about it, I can seek a cease and desist order

On Aug 10, 2007, at 12:54 PM, Conor Schaefer wrote:

...

It's more of a philosophical issue to me than a legal one, the answer to whether street performance of a piece grants another the right to play it. This is especially pertinent in your analogy to the net, because of the compartmentalization of spaces. For instance, while you as a street performer might take issue with my playing your song on the corner opposite you, what if I'm doing it on the other side of town? What if on another continent? While word might eventually reach your ears of this, don't assume that you could use a search engine to find work you made--especially if it's multimedia, an area in which the search industry is trying desperately to improve performance.

Edward Lee Lamoureux, Ph. D. Associate Professor, Multimedia Program and Department of Communication Co-Director, New Media Center 1501 W. Bradley Bradley University Peoria IL 61625 309-677-2378 <http://slane.bradley.edu/com/faculty/lamoureux/website2/index.html> <http://gcc.bradley.edu/mm/> AIM/IM & skype: dredleelam Second Life: Professor Beliveau

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------------------------------- James E. Porter Co-Director, WIDE Research Center Writing in Digital Environments Olds Hall 7 Michigan State University East Lansing, MI 48824 porterj8@msu.edu office: 517.353.7258 fax: 517.353.9162 http://wide.msu.edu/ -----------------------------------------

gil you are absolutely right. and the fact that I didn't explain it in all of its specifics doesn't, I hope, obviate my point. I should have been more careful in my explanation... I was trying to make a point so did not get into the intricacies of the analogy I was using. I should have. Good call. Sorry for the poorly drawn analogy. the copyright DOES protect my original work, whether or not I record it (as long as I write it down or perform it in public). but you are right, the law doesn't FORBID others from playing it . . . it does, however, set up a system that requires that others compensate me (or my publisher or anyone I assign the rights to) each time it gets played in public. So, for example, If it gets recorded, the publisher/record company pays me; if it gets air play, BMI/ASCAP pay me via the fees that stations pay; if it gets played in a venue, the venue's licensing fees pay me. In other words, though you CAN play it, you can't perform it anywhere in public without the law requiring my participation in the compensatory licensing process. If you play it in public (for example play it and post it to your website) it's a violation of the performance portion of the copyright protection. So while you don't need my permission, as such . . . the system that is set up for music is very much parallel to a permission system... it just substitutes licensing and royalty fees for permission and citation. On Aug 10, 2007, at 4:53 PM, Gilbert B. Rodman wrote:

Well, no. IP law *is* pretty clear about this -- at least with respect to music -- and your rights as the composer of a song DON'T prevent other people from performing/recording it. The world is filled with bad cover bands (and, to a lesser extent, good ones) precisely because it's legal to perform other people's songs without their permission. Edward Lee Lamoureux, Ph. D. Associate Professor, Multimedia Program and Department of Communication Co-Director, New Media Center 1501 W. Bradley Bradley University Peoria IL 61625 309-677-2378 <http://slane.bradley.edu/com/faculty/lamoureux/website2/index.html> <http://gcc.bradley.edu/mm/> AIM/IM & skype: dredleelam Second Life: Professor Beliveau

At the risk of arguing with a lawyer (when I'm not one): burkx006@umn.edu wrote:

...

it's legal to perform other people's songs without their permission.

My previous comment notwithstanding, I AM going to correct this: absent a handful of unusual and narrow exceptions (like public performance of nondramatic musical works at agricultural fairs) -- no, it's not. You almost always need a non-statuory license for public performances.

A legal mechanism that governs what one needs to do in order to avoid penalties for infringement is not quite the same thing as needing to secure permission from the songwriter, though, is it? If I want to record a horrible version of "Like a Rolling Stone" -- and, trust me, it would be horrible -- there are all sorts of things I need to do to make that recording legal, but formally securing permission from Bob Dylan to butcher his composition isn't one of them. Dylan has all sorts of legal rights in connection with songs he's composed, but those don't include the right to choose who can and can't perform/record those songs. My point -- sloppily phrased though it may have been from a legal perspective -- was the songwriter doesn't get to play gatekeeper here (which was, as I understood it anyway, the point Ed's post was making), not that there are no laws whatsoever governing what a covering musician can and can't do. To spin this back in the direction of the original thread, my main concern with the "always ask permission first" philosophy is that it gives us a world where criticism and cultural commentary can only happen at the whim of those whose words are being critiqued. If, for example, Dan wants to write an article about "silly things people say about the law," he should be able to do so -- and to quote me accordingly, if he thinks it worth the bother to do so -- without having to come to me, hat in hand, and asking for my permission to use words I've posted in a public forum. "My words" may not exactly be his to do with as he pleases -- legally or ethically -- but they're also not (and shouldn't be) exactly mine to control as I please either. I can certainly imagine contexts in which "asking permission first" would be the wise and/or ethical thing to do ... but that's still a long way from presuming, as some of the posts in this thread have done, that such requests should be the default approach to online research.

On Aug 11 2007, Gilbert B. Rodman wrote:

Dylan has all sorts of legal rights in connection with songs he's composed, but those don't include the right to choose who can and can't perform/record those songs.

He does get to choose who can perform them. He doesnt get to choose who can record them. For one activity he is gatekeeper, for the other not. So one example works, the other doesnt. -- Dan L. Burk Oppenheimer, Wolff & Donnelly Professor University of Minnesota Law School 229 19th Avenue South Minneapolis, MN 55455 ********************************** voice: 612-626-8726 fax: 612-625-2011 bits: burkx006@umn.edu

On Aug 10, 2007, at 12:54 PM, Conor Schaefer wrote:

If you are chatting in a cafe, you need to understand that what you say can be heard by those around you.

if you are chatting in a cafe, you are already in a private place . . . if you are chatting in the knowing presence of others, you know who can hear you and you can moderate your volume based on who you want to listen. If you are chatting in a cafe and I want to use a recording of your words in research, I have to ask your permission and get your informed consent, in most states in America. In some states, I don't need your permission as long as the data result can't be tracked to you personally, but these are a small number of states. If I want to take field notes on your interaction in such a place, I can do so to my heart's content as long as the notes can't be tracked back to you. so in the case of data collected from the internet . . . did the subject have a reasonable expectation that YOU would be observing them? Did they have the chance to modulate their transmission based on your presence? Can the data be tracked back to them? did they give informed consent? are you using their words? or only your field notes about their behavior? Edward Lee Lamoureux, Ph. D. Associate Professor, Multimedia Program and Department of Communication Co-Director, New Media Center 1501 W. Bradley Bradley University Peoria IL 61625 309-677-2378 <http://slane.bradley.edu/com/faculty/lamoureux/website2/index.html> <http://gcc.bradley.edu/mm/> AIM/IM & skype: dredleelam Second Life: Professor Beliveau

Maybe, but if you misbehave in that "private" space, the cops will arrest you for a public misdemeanor ... Cheers, Hughie -----Original Message----- From: air-l-bounces@listserv.aoir.org [mailto:air-l-bounces@listserv.aoir.org] On Behalf Of Ed Lamoureux Sent: Saturday, 11 August 2007 7:38 AM To: air-l@listserv.aoir.org Subject: Re: [Air-L] public private On Aug 10, 2007, at 12:54 PM, Conor Schaefer wrote:

More to the point, the concourse of a mall is by my definition completely public.

and this would absolutely wrong and total nonsense, at least in America. In American, EVERY mall is private property and is specifically posted as such. No one may do research within them without the express written consent of the mall owners. You'll find that posted on the outside doors of virtually every mall you enter. If it isn't posted on the doors, it's up on a wall someplace. If you don't believe me, just call your local marketing firm and ask them about the contracts and permissions they have to sign with the mall in order to do research within. Edward Lee Lamoureux, Ph. D. Associate Professor, Multimedia Program and Department of Communication Co-Director, New Media Center 1501 W. Bradley Bradley University Peoria IL 61625 309-677-2378 <http://slane.bradley.edu/com/faculty/lamoureux/website2/index.html> <http://gcc.bradley.edu/mm/> AIM/IM & skype: dredleelam Second Life: Professor Beliveau _______________________________________________ The Air-L@listserv.aoir.org mailing list is provided by the Association of Internet Researchers http://aoir.org Subscribe, change options or unsubscribe at: http://listserv.aoir.org/listinfo.cgi/air-l-aoir.org Join the Association of Internet Researchers: http://www.aoir.org/

...

On Aug 10, 2007, at 12:54 PM, Conor Schaefer wrote:

...

More to the point, the concourse of a mall is by my definition completely public.

ed wrote:

...

and this would absolutely wrong and total nonsense, at least in America. In American, EVERY mall is private property and is specifically posted as such. No one may do research within them without the express written consent of the mall owners.

DLB wrote:

Hm, well, not completely true. In some states, malls are public fora for purposes of the state constitution -- the right to expression overrides the private property interest in those cases. The point being that it is dangerous to draw parallels between physical spaces and virtual spaces, something many of us have written about.

DLB

Ed wrote: Don is right in that I overstated the "every" . . . there are exceptions as there are differing state laws AND there are different kinds of malls. However, there is also a difference between free speech rights (rights to expression) and laws that apply to doing private work (like collecting research data). I won't argue over whether there are some limited exceptions. I will, however, continue to note that MANY malls ARE treated, both by their ownership companies and by the jurisdictions in which they do business, as private real estate in which property interests and the rules owners set ARE the controlling feature and collecting data without their consent is specifically prohibited. I also think that Don is right "that it is dangerous to draw parallels between physical spaces and virtual spaces". My response to Conor was intended to note that the assumption that mall=public is NOT the default condition in many places in America. Sorry to have overstated the case. Edward Lee Lamoureux, Ph. D. Associate Professor, Multimedia Program and Department of Communication Co-Director, New Media Center 1501 W. Bradley Bradley University Peoria IL 61625 309-677-2378 <http://slane.bradley.edu/com/faculty/lamoureux/website2/index.html> <http://gcc.bradley.edu/mm/> AIM/IM & skype: dredleelam Second Life: Professor Beliveau

Hi Ed -- I agree with what you wrote that

...

I reject the notion that even bloggers who publish stuff are giving informed consent to become research subjects.

Consent to become a research subject is a different matter than citation, as Jeremy's email on the other subject line says. You, like myself, continue to make great arguments about why the dichotomy between public and private spaces will not continue to work; we have got to begin thinking of these things in more nuanced ways. Let's continue to talk through some of your other points, but I don't want to see my statement about policy and usage of internet documents taken as a manifesto on intellectual property or research subject rights; to generalize to terms that I didn't use from the ones that I mentioned makes you run the risk of committing straw man fallacies. So let's continue the discussion in a more amicable fashion -- You may indeed perform a piece of music on a street corner, but once you *record* your music and post it onto the internet, you're in a different level of public space. (Of course, new technology that monitors street corners on video and enhanced video phones may make it possible for someone to record your music and make a YouTube video of it... and good luck finding it to report to YouTube as an infringement unless someone sends you a link to it. And by THAT time, hundreds of other people may have downloaded it to their own computers! :-) No one else has the legal right to record your music and pass it off as their own -- that's just stealing. But someone may theoretically download it and use it on their own personal computers, or they may use it to create a digital piece of artwork without ever letting anyone know that it is yours; them's the facts of posting online. They may even go home and use a few of the words or phrases that they heard in your song on the street corner and make up a new one of their own, never even remembering consciously in the first place that they heard yours. Derivative? yes; unethical? maybe; possible? yes. And even my own personal laptop could be confiscated and used against me in a court of law; computers are FREQUENTLY confiscated these days. Ask anyone who has been convicted of downloading child porn from the internet whether s/he still considers her/his own computer as a "private" space. It's just not that simple, wouldn't you agree? It's not even so much a legal issue for most of us as an ethical one; have you ever checked your computer browser's history to see where your spouse or child had been on the internet? We have *got* to stop dichotomizing private and personal space when it comes to electronic communication technology or else we'll never get anywhere good with public policy. Best! Deanya Ed Lamoureux wrote:

sorry. I don't agree On Aug 10, 2007, at 10:55 AM, M. Deanya Lattimore wrote:

...

If people did not want their information to be considered "published," then they should write it on paper and keep it under their mattresses, not type it into large databases that are collected, spidered, and searched by other online tools.

excuse me. "Publishing" something does NOT remove intellectual property rights. In fact, those rights first become attached to the ideas when they are "published" (put into form). When I play a song I've written on the street corner, or in a bar, or at a concert, I'm "publishing" it "in public." Doing so does not give ANYONE permission to use it without my permission. "Fair use" allows the use of very small portions of it for teaching or research, but only under certain conditions. And the Teach Act modifies those allowed uses even further in the case of online educational purposes.

...

So by default for me, all internet work has been intended for publication. Maybe to limited audiences, like when someone posts pics of themselves getting drunk in Facebook, but the fact of the matter is, it's still more in the public space than in the private one.

I think that the notion that the internet is a public space is contestable. I would argue that the network of computers, routers, wires and other technological stuff are almost ALL privately owned entities . . . sort of like a great land filled with connected malls . . . a mall is not a public space at all... it's private land often FILLED with people doing stuff in the presence of others. But the internet is not at all like public lands (city, county, state, federally owned public space).

Further, even if there is a "public feel" to internet published stuff, and putting aside for a moment the implications of the DMCA, the Teach Act, and copyright law (not to mention a ton state laws concerning "rights of publicity and privacy"), I reject the notion that even bloggers who publish stuff are giving informed consent to become research subjects.

Edward Lee Lamoureux, Ph. D. Associate Professor, Multimedia Program and Department of Communication Co-Director, New Media Center 1501 W. Bradley Bradley University Peoria IL 61625 309-677-2378 <http://slane.bradley.edu/com/faculty/lamoureux/website2/index.html> <http://gcc.bradley.edu/mm/> AIM/IM & skype: dredleelam Second Life: Professor Beliveau

_______________________________________________ The Air-L@listserv.aoir.org mailing list is provided by the Association of Internet Researchers http://aoir.org Subscribe, change options or unsubscribe at: http://listserv.aoir.org/listinfo.cgi/air-l-aoir.org

Join the Association of Internet Researchers: http://www.aoir.org/

As a producer/director for a large national organization who also works with Hollywood folks and SAG, I think that the smart thing to do legally is to get signed informed consent forms and talent agreements locked down early to protect oneself for future uses both academic and public. The key is informing ones subjects from the beginning. This is what I did for my study on edutainment & convergence with my subjects who work in the entertainment field. As a working producer/director who now is literally defending my study within the next week or two in higher ed, I think that one has to be transparent from the outset when conducting a study; however, I think one has to take certain steps to protect oneself legally and enable one to have the ability to publish commercially if or when the opportunity becomes available. I have been fortunate because I am debating over whether to publish myself or go with traditional publishers because I have received attention from some folks. My advice is to be smart and be careful because the MPAA and RIAA are suing people every day on infringement issues and they are frequently winning out of court and in the courtrooms because they crafted the legal language and even wrote it to protect their publishing interests. They also created an avenue for ordinary folks,like subjects and actors, to sue because of the issue of digital publishing. The SAG labor fight with Hollywood a year or so ago brought this issue to light. Why is this important for us? Because they are creating the law that will impact publishing online with video, audio and print. Subjects on video have the potential of becoming future SAG members if they go viral and SAG wants a cut whenever possible. Just something to thing about in the future because I see it coming. -----Original Message----- From: air-l-bounces@listserv.aoir.org [mailto:air-l-bounces@listserv.aoir.org] On Behalf Of M. Deanya Lattimore Sent: Friday, August 10, 2007 2:20 PM To: air-l@listserv.aoir.org Subject: Re: [Air-L] public private Hi Ed -- I agree with what you wrote that

...

I reject the notion that even bloggers who publish stuff are giving informed consent to become research subjects.

Consent to become a research subject is a different matter than citation, as Jeremy's email on the other subject line says. You, like myself, continue to make great arguments about why the dichotomy between public and private spaces will not continue to work; we have got to begin thinking of these things in more nuanced ways. Let's continue to talk through some of your other points, but I don't want to see my statement about policy and usage of internet documents taken as a manifesto on intellectual property or research subject rights; to generalize to terms that I didn't use from the ones that I mentioned makes you run the risk of committing straw man fallacies. So let's continue the discussion in a more amicable fashion -- You may indeed perform a piece of music on a street corner, but once you *record* your music and post it onto the internet, you're in a different level of public space. (Of course, new technology that monitors street corners on video and enhanced video phones may make it possible for someone to record your music and make a YouTube video of it... and good luck finding it to report to YouTube as an infringement unless someone sends you a link to it. And by THAT time, hundreds of other people may have downloaded it to their own computers! :-) No one else has the legal right to record your music and pass it off as their own -- that's just stealing. But someone may theoretically download it and use it on their own personal computers, or they may use it to create a digital piece of artwork without ever letting anyone know that it is yours; them's the facts of posting online. They may even go home and use a few of the words or phrases that they heard in your song on the street corner and make up a new one of their own, never even remembering consciously in the first place that they heard yours. Derivative? yes; unethical? maybe; possible? yes. And even my own personal laptop could be confiscated and used against me in a court of law; computers are FREQUENTLY confiscated these days. Ask anyone who has been convicted of downloading child porn from the internet whether s/he still considers her/his own computer as a "private" space. It's just not that simple, wouldn't you agree? It's not even so much a legal issue for most of us as an ethical one; have you ever checked your computer browser's history to see where your spouse or child had been on the internet? We have *got* to stop dichotomizing private and personal space when it comes to electronic communication technology or else we'll never get anywhere good with public policy. Best! Deanya Ed Lamoureux wrote:

sorry. I don't agree On Aug 10, 2007, at 10:55 AM, M. Deanya Lattimore wrote:

...

If people did not want their information to be considered "published," then they should write it on paper and keep it under their mattresses, >> not type it into large databases that are collected, spidered, and >> searched by other online tools.

excuse me. "Publishing" something does NOT remove intellectual property rights. In fact, those rights first become attached to the ideas when they are "published" (put into form). When I play a song I've written on the street corner, or in a bar, or at a concert, I'm "publishing" it "in public." Doing so does not give ANYONE permission to use it without my permission. "Fair use" allows the use of very small portions of it for teaching or research, but only under certain conditions. And the Teach Act modifies those allowed uses even further in the case of online educational purposes.

...

So by default for me, all internet work has been intended for >> publication. Maybe to limited audiences, like when someone posts pics of themselves getting drunk in Facebook, but the fact of the matter is, >> it's still more in the public space than in the private one.

I think that the notion that the internet is a public space is contestable. I would argue that the network of computers, routers, wires and other technological stuff are almost ALL privately owned entities . . . sort of like a great land filled with connected malls . . . a mall is not a public space at all... it's private land often FILLED with people doing stuff in the presence of others. But the internet is not at all like public lands (city, county, state, federally owned public space).

Further, even if there is a "public feel" to internet published stuff, and putting aside for a moment the implications of the DMCA, the Teach Act, and copyright law (not to mention a ton state laws concerning "rights of publicity and privacy"), I reject the notion that even bloggers who publish stuff are giving informed consent to become research subjects.

Edward Lee Lamoureux, Ph. D. Associate Professor, Multimedia Program > and Department of Communication > Co-Director, New Media Center > 1501 W. Bradley > Bradley University > Peoria IL 61625 > 309-677-2378 > <http://slane.bradley.edu/com/faculty/lamoureux/website2/index.html> <http://gcc.bradley.edu/mm/> AIM/IM & skype: dredleelam Second Life: Professor Beliveau

_______________________________________________ The Air-L@listserv.aoir.org mailing list > is provided by the Association of Internet Researchers http://aoir.org > Subscribe, change options or unsubscribe at: http://listserv.aoir.org/listinfo.cgi/air-l-aoir.org

Join the Association of Internet Researchers: http://www.aoir.org/ >

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On Fri, 10 Aug 2007, M. Deanya Lattimore wrote: ::Good, good, -- I was thinking this way too as to your first point. The ::problem with the second point is that I argue in my diss that ALL ::electronic and computer writing must be considered to some degree ::"public": it's not a dichotomous construct. :: ::If people did not want their information to be considered "published," ::then they should write it on paper and keep it under their mattresses, ::not type it into large databases that are collected, spidered, and ::searched by other online tools. :: ::So by default for me, all internet work has been intended for ::publication. Maybe to limited audiences, like when someone posts pics ::of themselves getting drunk in Facebook, but the fact of the matter is, ::it's still more in the public space than in the private one. There is a very big difference between your phrase "*intended* for publication" and *published*. Items on the internet have been published insofar as they are usually publicly accessible and relatively persistent. However, given that the average user is not aware of how spiders, caches, or searches work, it would be presumptuous to assume that they *intended* their thoughts to be published in the legal sense of the word. Consider the following examples: Having a party in my backyard is not something I would consider public, even if there is the off chance that a passerby could look through the fence and see and hear what was going on. A hacker could theoretically hop on to my computer and download love letters I wrote to my girlfriend. A burglar could also break into my house and steal the letters from under my matress. But in either scenario, it is reasonable for me to believe my papers - whether locked in a *personal computer* or a *personal home* -are secure...and to be royally pissed when I discover that they weren't. In my opinion, and in the opinion of the US legal system, privacy exists where there is a "Reasonable expectation" that it does. It would be reasonable, I suspect, for me to feel that my backyard party is a private affair. The real question for electronic communication, then, is whether it is reasonable...or, more specifically, whether a reasonable man would consider it so....to believe that any Internet communication is private. I think in some cases this IS a reasonable assumption - just because there is a *possibility* that something can be seen by an unintended party does not mean that it is reasonable to believe that it *will*. it's possible that my phone is being tapped right now, but I would be considered paranoid if I truly believed that was occurring - sure, the technology exists, but that doesn't mean it's reasonable to believe that it is happening at this moment or that it is even likely. So, really, you must ask whether there are scenarios where an individual can reasonably believe that their communication is being seen only by its intended audience - whether it is reasonable to believe that it is private. In the case of password protected communities....? Given that the average reasonable person is probably actually quite unaware of the machinations of spiders....? Would it be reasonable for a person who has knowingly published their article in a journal to think it is private? That is the difference between something published on MySpace and in an electronic journal database. -Alexis :: :: :: ::elw@stderr.org wrote: :: > Presumably journal articles have already gone through the local :: > ethics/institutional review process as they're written. :: > :: > We also have an expectation that journal articles are written with the :: > intent of publication - they're not accidental. :: > :: > --e :: ::deanya wrote: ::>> Hi Alex! Okay, I'll challenge this, LOL! Articles that are found in ::>> subscription databases are constantly cited, and all you have to do is ::>> provide info about your level of access. ::>> ::>> What makes MySpace or Livejournal different from database collections? ::> ::> :: ::> ::>> Alex Halavais wrote: ::>>> I think that any blog that requires any sort of log in is off limits, ::>>> even if anyone can randomly log in to gain access. I'd be willing to ::>>> be challenged on that, but I think of it as a rule of thumb. So, for ::>>> example, some MySpace and Livejournal pages are only available to ::>>> subscribers (same deal for most social network profiles), and I think ::>>> these have to be handled differently. ::> ::> _______________________________________________ ::> The Air-L@listserv.aoir.org mailing list ::> is provided by the Association of Internet Researchers http://aoir.org ::> Subscribe, change options or unsubscribe at: http://listserv.aoir.org/listinfo.cgi/air-l-aoir.org ::> ::> Join the Association of Internet Researchers: ::> http://www.aoir.org/ ::> ::> ::_______________________________________________ ::The Air-L@listserv.aoir.org mailing list ::is provided by the Association of Internet Researchers http://aoir.org ::Subscribe, change options or unsubscribe at: http://listserv.aoir.org/listinfo.cgi/air-l-aoir.org :: ::Join the Association of Internet Researchers: ::http://www.aoir.org/ :: + -------- redheadedstepchild.org ------- +

Like Alex, I think that a blog that is not password-protected, and any comments left on that blog, constitute a public forum, not a semi-private one. Letters to the editor are a completely public forum, surely? I don't think that one's view of the internet affects this in the slightest. I am doing a PhD about the process of doing a PhD, and am one of a group of PhD candidates who are blogging what it's like for them. However, recently a strange situation has arisen where my public blog (in which I rarely mention my PhD) has been targeted by people who claim that I leave comments on other blogs in order to stir up controversy for my PhD! As my PhD isn't about blogging, and the blogs in my study aren't available to casual searchers, this is a strange accusation to make. One person has even threatened to contact my university, claiming that I am 'not of good character'. This is where I are glad that I have an Ethics Committee to protect me. If this person did contact the university it would be referred to my supervisor and the Ethics Committee and it would be quickly cleared up. But it has been interesting to observe how people who construe my behaviour as threatening and bullying when I post or comment assertively are so paranoid about being 'studied' that they assume that's what I'm doing when they see that I'm doing a PhD that has a remote connection to the blogosphere. M-H On 10/8/07 7:31 AM, "Alecea Standlee" <stan0504@yahoo.com> wrote: <snip> .

A bloggers response is a semi-public forum. If you treat Internet spaces like a document, then is akin to a "letter to the editor" in a newspaper. If on the other hand you view Internet spaces in a more post-modern light, and see it as a location. Then it is a public venue, a place where ethical rules of observation or participant observation in a public space function. I do however, suggest that you ask your bloggers to notify their readership that they are particpation in your research. While it may somewhat influence the behavior, I think that outing yourself as a researcher fulfills you ethical obligations... Just my humble opinion. Alecea