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    Choosing Metaphors

    From Digital Copyright by Jessica Litman (2006) pp. 77-88. (Amherst, NY: Prometheus Books).Copyright © 2001 by Jessica Litman.Reprinted with permission of the publisher.
    A public domain work is an orphan. No one is responsible for its life. But everyone exploits its use, until that time certain when it becomes soiled and haggard, barren of its previous virtues. Who, then, will invest the funds to renovate and nourish its future life when no one owns it? How does the consumer benefit from that scenario? The answer is, there is no benefit.—Jack Valenti[1]

    The copyright law on the books is a large aggregation of specific statutory provisions; it goes on and on for pages and pages. When most people talk about copyright, though, they don’t mean the long complicated statute codified in title 17 of the U.S. Code. Most people’s idea of copyright law takes the form of a collection of principles and norms. They understand that those principles are expressed, if sometimes imperfectly, in the statutory language and the case law interpreting it, but they tend to believe that the underlying principles are what count. It is, thus, unsurprising that the rhetoric used in copyright litigation and copyright lobbying is more often drawn from the principles than the provisions.

    One can greatly overstate the influence that underlying principles can exercise over the enactment and interpretation of the nitty-gritty provisions of substantive law. In the ongoing negotiations among industry representatives, normative arguments about the nature of copyright show up as rhetorical flourishes, but, typically, change nobody’s mind. Still, normative understandings of copyright exercise some constraints on the actual legal provisions that the lobbyists can come up with, agree on, convince Congress to pass, and persuade outsiders to comply with. The ways we have Page  14of thinking about copyright law can at least make some changes more difficult to achieve than others.

    Lawyers, lobbyists, and scholars in a host of disciplines have reexamined and reformulated copyright principles over the past generation, in ways that have expanded copyright’s scope and blinded many of us to the dangers that arise from protecting too much, too expansively for too long. That transformation has facilitated the expansion of copyright protection and the narrowing of copyright limitations and exceptions.

    At the turn of the century, when Congress first embraced the copyright conference model that was to trouble us for the rest of the century, the predominant metaphor for copyright was the notion of a quid pro quo.[2] The public granted authors limited exclusive rights (and only if the authors fulfilled a variety of formal conditions) in return for the immediate public dissemination of the work and the eventual dedication of the work in its entirety to the public domain.[3]

    As the United States got less hung up on formal prerequisites, that model evolved to a view of copyright as a bargain in which the public granted limited exclusive rights to authors as a means to advance the public interest. This model was about compensation:[4] it focused on copyright as a way to permit authors to make enough money from the works they created in order to encourage them to create the works and make them available to the public. That view of the law persisted until fairly recently.

    If you read books, articles, legal briefs, and congressional testimony about copyright written by scholars and lawyers and judges fifty years ago, you find widespread agreement that copyright protection afforded only shallow and exception-ridden control over protected works. Forty, thirty, even twenty years ago, it was an article of faith that the nature of copyright required that it offer only circumscribed, porous protection to works of authorship. The balance between protection and the material that copyright left unprotected was thought to be the central animating principle of the law. Copyright was a bargain between the public and the author, whereby the public bribed the author to create new works in return for limited commercial control over the new expression the author brought to her works. The public’s payoff was that, beyond the borders of the authors’ defined exclusive rights, it was entitled to enjoy, consume, learn from, and reuse the works. Even the bounded copyright rights would expire after a limited term, then set at fifty-six years.

    A corollary of the limited protection model was that copyright gave owners control only over particular uses of their works.[5] The copyright Page  15owner had exclusive rights to duplicate the work. Publishing and public performance were within the copyright owner’s control. But copyright never gave owners any control over reading, or private performance, or resale of a copy legitimately owned, or learning from and talking about and writing about a work, because those were all part of what the public gained from its bargain. Thus, the fact that copyright protection lasted for a very long time (far longer than the protection offered by patents); the fact that copyright protection has never required a government examination for originality, creativity, or merit; and the fact that copyright protects works that have very little of any of them was defended as harmless: because copyright never took from the public any of the raw material it might need to use to create new works of authorship, the dangers arising from overprotection ranged from modest to trivial.

    There was nearly universal agreement on these points through the mid-1970s. Copyright was seen as designed to be full of holes. The balance underlying that view of the copyright system treated the interests of owners of particular works (and often those owners were not the actual authors) as potentially in tension with the interests of the general public, including the authors of the future; the theory of the system was to adjust that balance so that each of the two sides got at least as much as it needed.[6] In economic terms, neither the author nor the public was entitled to appropriate the entire surplus generated by a new work of authorship.[7] Rather, they shared the proceeds, each entitled to claim that portion of them that would best encourage the promiscuous creation of still newer works of authorship.

    If you’re dissatisfied with the way the spoils are getting divided, one approach is to change the rhetoric. When you conceptualize the law as a balance between copyright owners and the public, you set up a particular dichotomy—some would argue, a false dichotomy[8]—that constrains the choices you are likely to make. If copyright law is a bargain between authors and the public, then we might ask what the public is getting from the bargain. If copyright law is about a balance between owners’ control of the exploitation of their works and the robust health of the public domain, one might ask whether the system strikes the appropriate balance.[9] You can see how, at least in some quarters, this talk about bargains and balance might make trouble. Beginning in the late 1970s and early 1980s, advocates of copyright owners began to come up with different descriptions of the nature of copyright, with an eye to enabling copyright owners to capture a greater share of the value embodied in copyright-protected works.[10]

    In the last thirty years, the idea of a bargain has gradually been replaced Page  16by a model drawn from the economic analysis of law, which characterizes copyright as a system of incentives.[11] Today, this is the standard economic model of copyright law, whereby copyright provides an economic incentive for the creation and distribution of original works of authorship.[12] The model derives a lot of its power from its simplicity: it posits a direct relationship between the extent of copyright protection and the amount of authorship produced and distributed—any increase in the scope or subject matter or duration of copyright will cause an increase in authorship; any reduction will cause a reduction.

    The economic analysis model focuses on the effect greater or lesser copyright rights might have on incentives to create and exploit new works. It doesn’t bother about stuff like balance or bargains except as they might affect the incentive structure for creating and exploiting new works. To justify copyright limitations, like fair use, under this model, you need to argue that authors and publishers need them in order to create new works of authorship,[13] rather than, say, because that’s part of the public’s share of the copyright bargain. The model is not rooted in compensation, and so it doesn’t ask how broad a copyright would be appropriate or fair; instead it inquires whether broader, longer, or stronger copyright protection would be likely to lead to the production of more works of authorship.

    The weakness in this model is that more and stronger and longer copyright protection will always, at the margin, cause more authors to create more works—that’s how this sort of linear model operates. If we forget that the model is just a useful thought tool, and persuade ourselves that it straightforwardly describes the real world, then we’re trapped in a construct in which there’s no good reason why copyrights shouldn’t cover everything and last forever.

    Lately, that’s what seems to have happened. Copyright legislation has recently been a one-way ratchet, and it’s hard to argue that that’s bad within the confines of the conventional way of thinking about copyright. In the past several years we’ve seen a further evolution. Copyright today is less about incentives or compensation than it is about control.[14] What ended up persuading lawmakers to adopt that model was the conversion of copyright into a trade issue: The content industries, copyright owners argued, were among the few in which the United States had a favorable balance of trade. Instead of focusing on American citizens who engaged in unlicensed uses of copyrighted works (many of them legal under U.S. law), they drew Congress’s attention to people and businesses in other countries who engaged in similar uses. The United States should make it a top priority, Page  17they argued, to beef up domestic copyright law at home, and thus ensure that people in other countries paid for any use of copyrighted works abroad. U.S. copyright law does not apply beyond U.S. borders, but supporters of expanded copyright protection argued that by enacting stronger copyright laws, Congress would set a good example for our trading partners, who could then be persuaded to do the same. Proponents of en-hanced protection changed the story of copyright from a story about authors and the public collaborating on a bargain to promote the progress of learning, into a story about Americans trying to protect their property from foreigners trying to steal it.

    That story sold. It offered an illusion that, simply by increasing the scope and strength and duration of U.S. copyright protection, Congress could generate new wealth for America without detriment or even inconvenience to any Americans. That recasting of the copyright story persuaded Congress to “improve” copyright protection and cut back on limitations and exceptions.[15]

    The upshot of the change in the way we think about copyright is that the dominant metaphor is no longer that of a bargain between authors and the public. We talk now of copyright as property that the owner is entitled to control—to sell to the public (or refuse to sell) on whatever terms the owner chooses. Copyright has been transformed into the right of a property owner to protect what is rightfully hers. (That allows us to skip right past the question of what it is, exactly, that ought to be rightfully hers.) And the current metaphor is reflected both in recent copyright amendments now on the books and in the debate over what those laws mean and whether they go too far.

    One example of this trend is the piecemeal repeal of the so-called first-sale doctrine, which historically permitted the purchaser of a copy of a copyrighted work to sell, loan, lease, or display the copy without the copyright owner’s permission, and is the reason why public libraries, video rental stores, and art galleries are not illegal.[16] The first sale doctrine enhanced public access to copyrighted works that some were unable to purchase. Because the first sale doctrine applies only to copies of a copyrighted work, it became increasingly irrelevant in a world in which vast numbers of works were disseminated to the public through media such as television and radio, which involved no transfer of copies. Copyright owners who did distribute copies of their works, however, lobbied for the first sale doctrine’s repeal. Congress yielded to the entreaties of the recording industry to limit the first sale doctrine as it applied to records, cassette tapes, and Page  18compact discs in 1984, and enacted an amendment that made commercial record rental (but not loan or resale) illegal.[17] After the computer software industry’s attempts to evade the operation of the first sale doctrine—by claiming that their distribution of software products involved licenses rather than sales[18]—received an unenthusiastic reception in court,[19] Congress partially repealed the first sale doctrine as it applied to computer programs.[20] Bills to repeal the first sale doctrine for audio/visual works were introduced in Congress,[21] but never accumulated enough support to be enacted. The actual bites these laws took out of the first sale doctrine were small ones, but in the process, the principle that the doctrine represents has been diminished.

    If we no longer insist that people who own legitimate copies of works be permitted to do what they please with them, that presents an opportunity to attack a huge realm of unauthorized but not illegal use. If copyright owners can impose conditions on the act of gaining access, and back those conditions up with either technological devices, or legal prohibitions, or both, then copyright owners can license access to and use of their works on a continuing basis. Technological fences, such as passwords or encryption, offer some measure of control, and enhanced opportunities to extract value from the use of a work. The owner of the copyright in money management software, for example, could design the software to require purchasers of copies to authorize a small credit card charge each time they sought to run the program. The owner of the copyright in recorded music could release the recording in a scrambled format, and rent access to descramblers by the day. Technological controls, though, are vulnerable to technological evasion, which is where the part about legal controls comes in.

    When copyright owners demanded the legal tools to restrict owners of legitimate copies of works from gaining access to them, Congress was receptive. Copyright owner interests argued that, in a digital age, anyone with access to their works could commit massive violations of their copyrights with a single keystroke by transmitting unauthorized copies all over the Internet. In order for their rights to mean anything, copyright owners insisted, they were entitled to have control over access to their works—not merely initial access, but continuing control over every subsequent act of gaining access to the content of a work.[22] Thus, to protect their property rights, the law needed to be amended to prohibit individuals from gaining unauthorized access to copyrighted works.[23]

    Augmenting copyright law with legally enforceable access control could completely annul the first sale doctrine. More fundamentally, Page  19enforceable access control has the potential to redesign the copyright landscape completely. The hallmark of legal rights is that they can be carefully calibrated. Copyright law can give authors control over the initial distribution of a copy of a work, without permitting the author to exercise downstream control over who gets to see it. Copyright law can give authors control over the use of the words and pictures in their books without giving them rights to restrict the ideas and facts those words and pictures express. It can give them the ability to collect money for the preface and notes they add to a collection of Shakespeare’s plays without allowing them to assert any rights in the text of those plays. It can permit them to control reproductions of their works without giving them the power to restrict consumption of their works. Leaving eye-tracks on a page has never been deemed to be copyright infringement.

    Copyrighted works contain protected and unprotected elements, and access to those works may advance restricted or unrestricted uses. Access controls are not so discriminating. Once we permit copyright owners to exert continuing control over consumers’ access to the contents of their works, there is no way to ensure that access controls will not prevent consumers from seeing the unprotected facts and ideas in a work. Nor can we make certain that the access controls prevent uses that the law secures to the copyright owner, while permitting access when its purpose is to facilitate a use the law permits. If the law requires that we obtain a license whenever we wish to read protected text, it encourages copyright owners to restrict the availability of licenses whenever it makes economic sense for them to do so. That, in turn, makes access to the ideas, facts, and other unprotected elements contingent on copyright holders’ marketing plans, and puts the ability of consumers to engage in legal uses of the material in those texts within the copyright holders’ unconstrained discretion. In essence, that’s an exclusive right to use. In other words, in order to effectively protect authors’ “exclusive rights” to their writings, which is to say, control, we need to give them power to permit or prevent any use that might undermine their control. What that means is that a person who buys a copy of a work may no longer have the right to read and reread it, loan it, resell it, or give it away. But the law has been moving away from that principle for years.

    A second example of this trend is the campaign to contract the fair-use privilege. Fair use was once understood as the flip side of the limited scope of copyright.[24] The copyright law gave the copyright holder exclusive control over reproductions of the work, but not over all reproductions.[25] The Page  20justifications for fair use were various; a common formulation explained that reasonable appropriations of protected works were permissible when they advanced the public interest without inflicting unacceptably grave damage on the copyright owner. Fair use was appropriate in situations when the copyright owner would be likely to authorize the use but it would be a great deal of trouble to ask for permission, such as the quotation of excerpts of a novel in a favorable review or the use of selections from a scholarly article in a subsequent scholarly article building on the first author’s research. Fair use was also appropriate in situations when the copyright owner would be unlikely to authorize, such as parodies and critiques, under a justification Prof. Alan Latman described as “enforced consent.” The social interest in allowing uses that criticized the copyright owner’s work, for example, outweighed the copyright owner’s reluctance to permit them. Fair use was appropriate whenever such uses were customary, either under the implied-consent rubric or as a matter of enforced consent. Fair use was finally asserted to be the reason that a variety of uses that come within the technical boundaries of the exclusive rights in the copyright bundle, but were difficult to prevent, like private copying, would not be actionable.[26]

    Recent reformulations of the fair use privilege, however, have sought to confine it to the implied-assent justification. Where copyright owners would not be likely to authorize the use free of charge, the use should no longer be fair. The uses that were permitted because they were difficult to police are claimed to be a subset of the impliedly permitted uses; should copyright owners devise a mechanism for licensing those uses, there would, similarly, no longer be any need to excuse the uses as fair.[27] In its most extreme form, this argument suggests that fair use itself is an archaic privilege with little application to the digital world: where technology permits automatic licensing, legal fictions based on “implied assent” become unnecessary.[28] Limiting fair use to an implied assent rationale, moreover, makes access controls seem more appealing. Thus, the fact that access controls would make no exception for individuals to gain access in order to make fair use of a work is said to be unproblematic. Why should fair use be a defense for the act of gaining unauthorized access?

    By recasting traditional limitations on the scope of copyright as loopholes, proponents of stronger protection have managed to put the champions of limited protection on the defensive. Why, after all, should undesirable loopholes not now be plugged? Instead of being viewed as altruists seeking to assert the public’s side of the copyright bargain, library organizations, Page  21for example, are said to be giving aid and comfort to pirates. Instead of being able to claim that broad prohibitions on technological devices are bad technological policy, opponents of the copyright-as-control model are painted as folks who believe that it ought to be okay to steal books rather than to buy them. And when educators have argued that everyone is losing sight of the rights that the law gives the public, they have met the response that the copyright law has never asked authors to subsidize education by donating their literary property.

    Then there’s the remarkable expansion of what we call piracy. Piracy used to be about folks who made and sold large numbers of counterfeit copies. Today, the term “piracy” seems to describe any unlicensed activity—especially if the person engaging in it is a teenager. The content industry calls some behavior piracy despite the fact that it is unquestionably legal. When a consumer makes a noncommercial recording of music by, for example, taping a CD she has purchased or borrowed from a friend, her copying comes squarely within the privilege established by the Audio Home Recording Act. The record companies persist in calling that copying piracy even though the statute deems it lawful.[29]

    People on the content owners’ side of this divide explain that it is technology that has changed penny-ante unauthorized users into pirates, but that’s not really it at all. These “pirates” are doing the same sort of things unlicensed users have always done—making copies of things for their own personal use, sharing their copies with their friends, or reverse-engineering the works embodied on the copies to figure out how they work. What’s changed is the epithet we apply to them.

    If we untangle the claim that technology has turned Johnny Teenager into a pirate, what turns out to be fueling it is the idea that if Johnny Teenager were to decide to share his unauthorized copy with two million of his closest friends, the effect on a record company would be pretty similar to the effect of some counterfeit CD factory’s creating two million CDs and selling them cheap. Copyright owners are worried, and with good reason. But, in response to their worry, they’ve succeeded in persuading a lot of people that any behavior that has the same effect as piracy must be piracy, and must therefore reflect the same moral turpitude we attach to piracy, even if it is the same behavior that we all called legitimate before. Worse, any behavior that could potentially cause the same effect as piracy, even if it doesn’t, must also be piracy. Because an unauthorized digital copy of something could be uploaded to the Internet, where it could be downloaded by two million people, even making the digital copy is piracy. Page  22Because an unauthorized digital copy of something could be used in a way that could cause all that damage, making a tool that makes it possible to make an unauthorized digital copy, even if nobody ever actually makes one, is itself piracy, regardless of the reasons one might have for making this tool. And what could possibly be wrong with a law designed to prevent piracy?

    My argument, here, is that this evolution in metaphors conceals immense sleight of hand. We as a society never actually sat down and discussed in policy terms whether, now that we had grown from a copyright-importing nation to a copyright-exporting nation, we wanted to recreate copyright as a more expansive sort of control. Instead, by changing metaphors, we somehow got snookered into believing that copyright had always been intended to offer content owners extensive control, only, before now, we didn’t have the means to enforce it.


    1. Copyright Term Extension Act: Hearing on H.R. 989 Before the Subcommittee On Courts and Intellectual Property of the House Committee on the Judicary, 104th Cong., 1st sess. (June 1, 1995) (testimony of Jack Valenti, Motion Picture Association of America).return to text

    2. See Jessica Litman, The Public Domain, 39 Emory Law Journal 965, 977–92 (1990).return to text

    3. See, e.g., London v. Biograph, 231 F. 696 (1916); Stone & McCarrick v. Dugan Piano, 210 F. 399 (ED La 1914).return to text

    4. I’m indebted to Professor Niva Elkin-Koren for this insight. See Niva Elkin-Koren, It’s All About Control: Copyright and Market Power in the Information Society (7/00 draft).return to text

    5. See, e.g., U.S. Library of Congress Copyright Office, Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law 6, 21–36 (1961).return to text

    6. See, e.g., Chaffee, Reflections on the Law of Copyright, 45 Columbia Law Review 503 (1945); Report of the Register of Copyrights, note 5 above, at 6.return to text

    7. Economists would say that the authorship of a new work creates a benefit that exceeds the costs of authoring it. That is the reason why the public benefits when authors create new works. The excess benefit is a surplus. It falls to the law to determine how that surplus should be allocated. Classically, copyright law accorded the author a portion of the surplus thought to be necessary to provide an incentive to create the work, and reserved the remaining benefit to the public.return to text

    8. See, e.g., Jane C. Ginsburg, Authors and Users in Copyright, 45 Journal of the Copyright Society of the USA 1 (1997).return to text

    9. See Benjamin Kaplan, An Unhurried View of Copyright 120–22 (Columbia University Press, 1967); Stephen Breyer, The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies and Computer Programs, 84 Harvard Law Review 281 (1970).return to text

    10. One series of writings explored the possibility of characterizing copyright as a Page  23natural right, on the theory that works of authorship emanated from and embodied author’s individual personalities. See, e.g., Edward J. Damich, The Right of Personality: A Common Law Basis for the Protection of the Moral Rights of Authors, 23 Georgia Law Review 1 (1988); Justin Hughes, The Philosophy of Intellectual Property, 77 Georgetown Law Journal 287 (1988); John M. Kernochan, Imperatives for Enforcing Authors’ Rights, 11 Columbia-VLA Journal of Law &. the Arts 587 (1987). Ignoring for the moment that, at least in the United States, the overwhelming majority of registered copyrights were corporately owned, these thinkers posited the model of author who creates all works from nothing. The parent/progeny metaphor was popular here—authors were compared with mothers or fathers; their works were their children. Therefore, the argument went, they were morally entitled to plenary control over their works as they would be over their children.return to text

    11. See, e.g., Paul Goldstein, Derivative Rights and Derivative Works in Copyright, 30 Journal of the Copyright Society 209 (1982); Wendy J. Gordon, Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and Its Predecessors, 82 Columbia Law Review 1600 (1982); William M. Landes and Richard Posner, An Economic Analysis of Copyright, 18 Journal of Legal Studies 325 (1989).return to text

    12. See, e.g., Dennis Karjala, Copyright in Electronic Maps, 35 Jurimetrics Journal 395 (1995); Alfred C. Yen, When Authors Won’t Sell: Parody, Fair Use and Efficiency in Copyright Law, 62 University of Colorado Law Review 1173 (1991).return to text

    13. See Wendy J. Gordon, Toward a Jurisprudence of Benefits: The Norms of Copyright and the Problems of Private Censorship, 57 University of Chicago Law Review 1009, 1032–49 (1990); Litman, note 2 above, at 1007–12.return to text

    14. Again, I’m indebted to Professor Elkin-Koren for the taxonomy. See Elkin-Koren, note 4 above.return to text

    15. I have told that story in some detail in Jessica Litman, Copyright and Information Policy, 55 Law & Contemporary Problems (Spring 1992), at 185.return to text

    16. See 17 USCA § 109; see generally John M. Kernochan, The Distribution Right in the United States of America: Review and Reflections, 42 Vanderbilt Law Review 1407 (1989).return to text

    17. Record Rental Amendment of 1984, Pub. L No 98–450, 98 Stat 1727 (1984) (codified as amended at 17 USCA §§ 109, 115).return to text

    18. See Pamela Samuelson, Modifying Copyrighted Software: Adjusting Copyright Doctrine to Accommodate a Technology, 28 Jurimetrics Journal 179, 188–89 (1988).return to text

    19. In Vault Corp. v. Quaid Software, Ltd., 847 F2d 255 (5th Cir 1988), the court rejected such a license and the state law purporting to enforce it because the court found it to be inconsistent with federal copyright law, which gives purchasers of copies of computer programs the rights that the shrink-wrap license attempted to withhold.return to text

    20. Computer Software Rental Amendments Act of 1990, Pub. L. No. 101–650, 104 Stat 5089, 5134 § § 801–804 (codified at 17 USC § 109). Like the Record Rental Act, the CSRA prohibits commercial software rental, but not resale, gift, or loan.return to text

    21. See S. 33, 98th Cong, 1st sess. (January 25, 1983), in 129 Congo Rec. 590 (January 26, 1983); H.R. 1029, 98th Cong., 1st sess. (January 26, 1983), in 129 Congo Rec. H201 (January 27, 1983); Home Video Recording, Hearing Before the Senate Committee on the Judiciary, 99th Cong, 2d sess. (1987).return to text

    Page  24

    22. See Jane C. Ginsburg, Essay: From Having Copies to Experiencing Works: the Development of an Access Right in U.S. Copyright Law, in Hugh Hansen, ed., U.S. Intellectual Property: Law and Policy (Sweet &. Maxwell, 2000).return to text

    23. As enacted, access-control amendments prohibit individuals from circumventing any technological devices designed to restrict access to a work, and make it illegal to make or distribute any tool or service designed to facilitate circumvention. See 17 U.S.C. § 1201. The law imposes substantial civil and criminal penalties for violations. See 17 U.S.C. §§ 1203, 1204.return to text

    24. See, e.g., Alan Latman, Study # 14: Fair Use 6–7 (1958), reprinted in 2 Studies on Copyright, Studies on Copyright 778, 784–85 (Arthur Fisher Memorial Edition 1963).return to text

    25. See Folsom v. Marsh, 9 Fed Cas. 342 (1841); H. Ball, The Law of Copyright and Literary Property 260 (Bender, 1944); L. Ray Patterson, Understanding Fair Use, 55 Law and Contemporary Problems (Spring 1992), at 249.return to text

    26. See generally Latman, note 24 above at 7–14, 2 Studies on Copyright at 785–92; Lloyd Weinreb, Commentary: Fair’s Fair: A Comment on the Fair Use Doctrine, 105 Harvard Law Review 1137 (1990).return to text

    27. See, e.g., Jane C. Ginsburg, note 8 above, at 11–20 (1997); American Geophysical Union v. Texaco, 60 F.3d 913 (2d Cir. 1995).return to text

    28. See, e.g., Tom W. Bell, Fared Use V. Fair Use: The Impact of Automated Rights Management on Copyright’s Fair Use Doctrine, 76 N. Carolina Law Review 101 (1998).return to text

    29. See, e.g., Music on the Internet: Is There an Upside to Downloading? Hearing Before the Senate Judiciary Committee, 106th Cong., 2d sess. (July 11, 2000) (remarks of Hilary Rosen, RIAA).return to text

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    Record Rental Amendment of 1984, Pub. L No 98–450, 98 Stat 1727 (1984) (codified as amended at 17 USCA §§ 109, 115).

    Samuelson, Pamela. “Modifying Copyrighted Software: Adjusting Copyright Doctrine to Accommodate a Technology.” Jurimetrics Journal 28 (1988): 179–221.

    Senate Judiciary Committee. Home Video Recording Hearing. 99th Cong, 2d sess. (1987).

    Senate Judiciary Committee. Music on the Internet: Is There an Upside to Downloading? Hearing. 106th Cong., 2d sess. July 11, 2000. Remarks of Hilary Rosen, RIAA.

    Page  26

    Stone & McCarrick v. Dugan Piano, 210 F. 399 (ED La 1914).

    U.S. Library of Congress Copyright Office. Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law 6 (1961): 21–36.

    Vault Corp. v. Quaid Software, Ltd., 847 F2d 255 (5th Cir 1988).

    Weinreb, Lloyd. “Commentary: Fair’s Fair: A Comment on the Fair Use Doctrine.” Harvard Law Review 105 (1990): 1137–61.

    Yen, Alfred C. “When Authors Won’t Sell: Parody, Fair Use and Efficiency in Copyright Law.” University of Colorado Law Review 62 (1991): 79–108.

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    On Ethical Issues in Publishing in the Life Sciences

    There are many complex ethical and policy issues in the diverse fields of scientific publishing. This essay deals with certain aspects of publishing in the life sciences and clinical research fields. The originality and quality of published articles and books depend ultimately on the rigor of the ideas, methods, research design, and potential impact of the findings. In biomedical research fields, journal articles carry more weight than scholarly books, partly reflecting the sense of urgency about sharing news on progress that might improve public health and medical care. Peer review is a valued feature of the publication process and is itself a complex, sometimes controversial, matter, loaded with ethical obligations.

    It is instructive to examine life sciences publishing from the points of view of the scientist or group of scientists preparing the publication and choosing the target journal; the editor at the journal and the journal’s peer reviewers; the research community eager for breakthrough results and yet skeptical about out-of-the-box claims; and the media and broader public seeking news about the advances of the biomedical and behavioral sciences that might have practical importance. Of course, publishing policies and practices change with time. Two current developments are new models of publishing, utilizing the Internet, and concerns that publication of certain biotechnology advances may increase the risks of bioterrorism. In the first case, the ethical issues relate to ownership of information and rights to access to information; in the second case, they concern the risks involved in providing tools that could be abused for terror or used in counterterrorism efforts, a matter sometimes called dual-use domain.

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    Author’s Issues

    Effective publication requires a carefully thought-through analysis by the prospective authors. They must decide how to characterize the aims of their research and determine the most important findings to be presented in the tables and figures and explained in the text. A critical decision that should orient the drafting of the paper is the choice of the most appropriate journal, both to reach the most appropriate audience for the information and to enhance the reputation of the authors. Too often authors wait until the paper is written to decide where to submit it for publication. Often authors shoot for the most prestigious journal, when the likelihood of acceptance is quite low.

    Biagioli and Galison (1) highlight “the function of the author” as a standard research question in literary, legal, and gender studies, as well as in other fields. Contrasted with single-author books and scholarly works in other disciplines, scientific publications commonly have several or many coauthors, reflecting the collaborative and increasingly interdisciplinary nature of the research and the involvement at various academics levels, from students and postdoctoral fellows to principal investigators and lab directors. Who should be listed as an author, and in what order should authors be listed? The general guidance is that authorship should be limited to those who played substantial roles in the design, conduct, and analysis of the results and the writing of the manuscript. “Courtesy” coauthors, such as the head of the department or director of the laboratory, if they had no direct role in the work, and contributors of cells or reagents, are more properly acknowledged and thanked, without being made coauthors. Listed authors who played no role get unwarranted credit, and those who did the work have their roles diluted, violating ethical principles of fairness and justice. However, there is a huge zone of discretion about these credits. Several leading biomedical journals now require each coauthor to sign a statement that he or she played a significant role and to identify what that role was. The International Committee of Medical Journal Editors has issued “uniform requirements.”

    There is a well-developed convention in life sciences and biomedical publishing about the order of authors: The primary researcher is expected to be the first author, especially if that individual really did lead all aspects of the project from design to conduct to analysis, even with guidance and assistance at each stage. For many faculty, it is a priority to put first a graduate student or postdoctoral fellow, or even an exceptional undergraduate Page  29student, when that status has been earned. If two individuals share this lead responsibility, the lab may publish a pair of papers with a different first author on one of the two papers, or may use asterisks to identify each as “equally contributing to the work.” A statistician is required for many kinds of studies to assure the credibility and quality of the quantitative inferences. The statistician, if not the primary researcher, is usually given the second position. For certain kinds of studies, especially clinical trials results, journals require that a qualified statistician be willing to put her or his name on the paper. The senior investigator or lab director generally goes last, as a means of indicating who had originally obtained the research grant. In multi-author collaborative studies, other coauthors are fit into the order, sometimes alphabetically, sometimes in subgroups by institution or role. The practice in the social sciences of presenting authors alphabetically is unknown in biomedical fields.

    As might be expected, there can be disagreements within the group about who should receive the credit of being first and, when more than one senior leader is involved, who should be last. These authorship positions matter a lot, subsequently, in competing for faculty positions, in being considered for promotion, in being evaluated for grant funding, and in individual awards for research achievements. Decisions about academic advancement put a premium on “independent” research and independent grant funding. This premium is excessive, especially when many kinds of life sciences research now clearly require and benefit from a multidisciplinary team approach. Sometimes someone yields on author position just to avoid conflict, only to suffer later in individual evaluations. Sometimes the group asks a shrewd or well-connected member of the team to take on the responsibility of writing the manuscript in order to maximize the quality of the paper, the match to the target journal, and the likelihood of acceptance for publication. This tactic demonstrates the many pressures on authors—from colleagues, department chairs, technology transfer offices, and press offices; indeed, it introduces the chapter on authorship in the Office of Research Integrity document on responsible conduct of research (Steneck, Office).

    In large collaborations involving dozens of participating investigators, papers will frequently have only the names of a few leaders of the whole collaborative group, or use a group name, and then footnote the remaining authors or participating investigators. Many journals in recent years have limited the number of coauthors listed in the bibliography to conserve space; some permit one named author with the rest covered by et al. Such Page  30policies make the authorship opaque until the actual article is obtained. Some journals omit titles in the bibliography in order to leave more room for authors, yet titles are helpful to the reader perusing the literature cited. The point here is that journals have tremendous discretion. For these and other reasons, the leader of a large research team should encourage side projects with ancillary analyses so that individual members or small groups of researchers can have separate publications.

    Choice of Journal

    A distinct hierarchy exists among journals in regard to reputation and, consequently, the presumed quality of their articles. The “citation index,” based on how many subsequent articles cite the article (with adjustments for self-citation, field, and specific journals), quantifies this ranking. Journals and their publishing companies advertise their citation index ranking as a way to attract the strongest manuscripts, as well as subscribers; they use it as the basis for advertising rates in those journals that accept (and seek) paid advertising. Some journals appeal to an audience across a broad range of scientific fields, specifically Science, Nature, and Proceedings of the National Academy of Sciences; among biomedical/clinical journals, the New England Journal of Medicine, the Journal of the American Medical Association, Lancet, and the Journal of Clinical Investigation have the most breadth and prestige. Every field, from cell biology to surgery, has its own pecking order for more specialized journals. The choices are enormous: PubMed indexes five thousand journals! The size of the biomedical research workforce and the numbers of journals continues to increase, making it especially difficult for beginners to be heard in the marketplace of ideas.

    Like first-listed author status, the quality of the journals in which individuals publish carries substantial weight in appointment, promotion, grant-funding, and research awards. Thus, scientists seek to make their manuscripts appear attractive and important for the most competitive journals, and to respond precisely and aggressively to constructive criticism from peer reviewers and editors. Properly carried out, these activities insure the publication of the highest quality work in the most prestigious journals.

    The Manuscript Review Process

    In the biomedical and behavioral sciences, great emphasis is placed on peer review of submitted manuscripts. The editor and editorial staff must identify Page  31appropriate reviewers for each manuscript; often several reviewers must be asked in order to find two or three willing to undertake the review in the timeframe desired by the authors and editor. Of course, busy scientists have many other duties and deadlines, and a manuscript may languish awaiting review. The peer reviewer may find that cited or uncited articles need to be read in order to make a knowledgeable and fair assessment, which can lead to delay.

    Critical ethical issues arise in peer review (Steneck, Office; Schachman). Some journals invite the authors to submit names for one or two potential reviewers; others examine the reference citations for appropriate names. Of course, these methods may introduce bias or favoritism. Some journals protect the reviewers’ anonymity to encourage candid review, while others encourage voluntary identification, perhaps believing that reviews may be more conscientious and civil. Some journals remove the names of the authors when providing the article to the reviewer, yet most reviewers can figure out the likely research group from the methods and citations. Editors recognize the ethical problems in obtaining a fair reading of new work, but no one has resolved them.

    Some authors are afraid that reviewers will be highly critical of the paper, or demand extensive, time-consuming revisions. Others worry that a reviewer will misappropriate, consciously or subconsciously, new concepts or findings to advance the reviewer’s own research. This potential problem has its counterpart in peer review of grant proposals for new research or as an extension of current research. Delays in publication are both a career problem and an ethical problem in an environment that places priority on being the first to publish important findings.

    After receiving peer review reports, editors exercise discretion about which papers to accept, since the top journals have room for only a minority of all submitted papers rated as highly credible. The editors may be looking for something unusual or newsworthy, or may have prejudices for or against certain topics or methods of analysis. Editors compete to attract exciting papers, promising expedited review or other advantages. Conversely, reviewers and editors may be unwilling to accept papers with unconventional methods or surprising findings—which may turn out to be breakthroughs.

    Not all fields rely on peer review. Gordon Kane, in this anthology, notes the sharp difference between publishing in theoretical physics and the preoccupation of the biological sciences with the peer review of journal articles. He notes that certain fields of physics reject the notion of empowering Page  32just two or three colleagues to act as quality control on papers; instead the practice of online publication encourages open publication, with the whole world immediately able to assess and criticize the report and the authors.

    Conflicts of Interest

    Conflicts of financial interest may arise, not just for the authors, but also among the reviewers. Medical journals now routinely ask reviewers to disclose potential conflicts of interest, but the process is for the most part voluntary. Conflicts may be particularly important with articles that show benefit or risk from medical therapies or products, affecting the pocketbook of particular companies or their competitors (Schachman). There is a mini-literature of publications demonstrating the high probability that authors supported by a pharmaceutical company will report results favorable to the product. Nearly a decade ago Deyo and colleagues published a report in the New England Journal of Medicine entitled “The Messenger under Attack—Intimidation of Researchers by Special Interest Groups.” These groups—pharmaceutical companies, patient advocacy organizations, providers and advocates of surgical or other procedures, and plaintiff lawyers—sought to block the publication of findings that could undercut their business interests, or attempted to discredit the publication and the researchers when the paper appeared in print or was presented at a scientific meeting and highlighted in press releases from the conference. Why are editors not more suspicious? Why are authors so disingenuous?

    Under federal guidelines, there exist three categories of scientific misconduct: fabrication, falsification, and plagiarism. There are quite a few celebrated cases of fabrication or falsification of data. A red flag should go up when individuals, especially in leading labs, have publication rates far above the reasonable upper end of the peer group (Claxton). The federal government established what is now called the Office of Research Integrity in 1989; they investigate some two hundred cases per year. For the year 2001 for example, ORI investigated twenty-four cases of fabrication, twenty of falsification, and four of plagiarism (Steneck, Office). All institutions utilizing NIH research funding are required to conduct training in “responsible conduct of research” for all trainees (Steneck, “Fostering Integrity”). Audits have shown that some individuals list articles as published or in press that do not exist, a particular form of falsification that is hardly unique to scientists.

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    The ORI website includes numerous educational initiatives, including “a guide to ethical writing” (Roig). The criteria for plagiarism are quite elastic, ranging from finding a certain minimal number of identical words in a sentence or phrase to substantial lifting of text or data from other published works. For example, the term “plagiarism” covers the lifting of extensive text, figures, or tables from another author without attribution; duplicate publication by the same author; and a very restrictive definition of any six consecutive identical words. In this era of electronic searches for phrases, it is simple to run a search on suspicious statements or phrases. The subset of self-plagiarism is generally frowned upon; a more serious problem is dividing one publishable set of work into numerous overlapping or redundant papers submitted to multiple journals. Whatever the definition, an inoffensive, actually desirable, use of redundant language arises from identical descriptions of experimental and analytical methods, reflecting standardized procedures. A May 19, 2005, editorial in Nature on plagiarism led to a flurry of letters and further articles. In general, federal requirements and university procedures are focused on fabrication and falsification of data, with much less attention to plagiarism. Universities and faculty groups chart an uneasy course between fearing adverse publicity and public and congressional stereotyping and threats of litigation from accused individuals.

    The broad category of plagiarism raises numerous ethical questions about careerism versus appropriate shared standards. How much overlap in successive publications is permissible by an author? How can the sequencing of a series of publications by one research group be made more coherent? Authors have little control of the actual timing of their publications. Increasingly, authors utilize electronic listservs and appropriate websites to maintain collaborative and mutually informative relationships. Journals are putting articles on line when accepted, sometimes months before the printed journal appears. Since monographs and book chapters generally summarize and synthesize previously published work, what must authors do to avoid a potential charge of plagiarism? One approach to avoid self-plagiarism is to hold new material for peer-reviewed submissions. The reviews then could focus on the integration of published material, hopefully with fresh interpretations.

    Journals could screen manuscripts for plagiarism, once criteria are agreed upon. As the editors of Nature have noted, arbitrary word limits for detection of plagiarism or self-plagiarism are unwise; they suggest a useful, user-friendly software tool that identified acceptable duplication (authors’ Page  34websites and properly referenced quotations) and a new category of missing information—articles hidden behind subscription barriers to online search of whole text. But such tools can only go so far.

    There are significant pressures on authors. Many journals have strict page limits or word limits. Editors may force authors to shorten manuscripts and publish only a portion of the data, leading to multiple smaller papers. Authors have long struggled with the obligation to present methods in sufficient detail so that another lab could repeat the experiment and expect to obtain the same results, so as to have a basis for extending the work. Withholding critical details may cause others to fail and will lead to controversy about the findings. Fortunately, the Internet now makes it feasible to publish methods and supplementary results in depth without utilizing print pages in the journal.

    Editors use precious pages for commentaries by others to promote the importance of selected articles. As noted above, editors are competing for “hot” articles, offering accelerated review, releasing “embargoed” versions of upcoming journal issues to the press, a practice initiated by the New England Journal of Medicine decades ago. The general media have come to rely on such access, raising the stakes for the authors competing for attention for themselves and their institutions.

    The “rules of the road” for responsible conduct of research include professional codes, government regulations, institutional policies, and personal commitments to the basic principles of honesty, accuracy, efficiency, and objectivity. Society trusts that the results of research reflect an honest attempt by scientists to describe the world accurately and without bias (National Academy of Sciences). The relevant literature encompasses thousands of articles and a few hundred confirmed cases of misconduct. Fabrication, falsification, and plagiarism as elements of “scientific misconduct” are more objective than earlier terminology of deception or fraud, which required demonstration of deliberate intent. The terms research integrity and questionable research practices are even broader, embracing sloppy research, inaccurate methods, excessive claims of accuracy (numerous significant figures), poor mentoring, bias, and conflict of interest (Institute of Medicine; Committee on Science, Engineering, and Public Policy; Schachman; Steneck, “Role”; and “Fostering Integrity”). Journals that have given these matters particular emphasis are the Journal of the American Medical Association, Academic Medicine, and Science and Engineering Ethics (Steneck, “Institutional and Individual Responsibilities”).

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    Scientific Publishing as Business

    Library budgets are overwhelmed with high subscription charges and a proliferation of journals. During a recent ten-year period, subscription charges for journals from commercial publishing houses rose 224 percent, uncorrected for inflation (Frank). For-profit conglomerate corporations are consolidating the academic publishing industry. Conversely, many scientific societies and nonprofit organizations depend upon the revenues and prestige of their journals. Of course, peer review and scientific publishing are costly; if subscriptions and reprint charges are to be dropped, or made irrelevant through downloading from the Internet, it will be necessary to have publication fees placed on the authors and their funding agencies. Many journals already impose such charges on top of their subscription income. NIH, Howard Hughes, and Wellcome Trust have announced that they will pay such charges for their grantees. The current (and foreseeable) budget situation at NIH, however, makes the accelerated adoption of these policies and the inclusion of these costs more complicated.

    Partly as a response, the open-access movement has emerged. Led by several prominent biomedical scientists, a new publishing venture called Public Library of Science (PLoS) has secured generous financial support from the Gordon and Betty Moore Foundation to publish electronic journals without fees for subscription or access. One of its arguments is that taxpayers have already paid for the conduct of the research, so ready access to the results without charge and without delay should be a public benefit.

    Another impetus for open access is the frustration felt by individuals without site licenses at their universities, companies, or public libraries. In many cases, such individuals can access the abstracts for articles online via PubMed, but they cannot access the full content of the paper. Patients, patient advocates, and especially lawyers find this barrier irritating. Scientists seeking to confirm findings in a long list of potential reference citations likewise are irritated by a barrier that offers access, however briefly, to the text only with payment of between $19 and $29 per article. Journals, while trying to protect their subscription base, have begun to make all text available online after a period of twelve months or less. NIH has issued guidance that calls on journals to do so within twelve months of publication and urges authors to make articles available informally through websites. There is pressure on the NIH, including from interested members of Congress, to accelerate this process. NIH guidance, moreover, has caused Page  36some confusion about whether the submitted manuscript, the accepted manuscript, or the final edited published manuscript will be made available, at least initially.

    PLoS publishes PLoS Biology, PLoS Medicine, PLoS Computational Biology, PLoS Genetics, and PLoS Pathogens. These are rapidly becoming highly cited journals. BioMedCentral has created more than one hundred open-access journals in the past two years, with more than four thousand original articles. Many established journals now use websites to make available extensive datasets, tables, figures, and detailed methods for which the journal does not provide space in the print version. BioMedCentral has such online features as the provenance of the paper—the original submission, peer reviewers’ comments, authors’ responses to the reviews, the revised manuscript and reviews, and citations after online publication. It is likely that these online open-access journals will continue to grow. Established journals, like Science, will very likely continue to sell print and electronic subscriptions, since readers highly value the “News and Comment” and other features of the journal, besides the original research articles. (Author disclosure: I am currently chairman of the board of the American Association for the Advancement of Science [AAAS] that publishes Science.) But, clearly, there is ferment in the scientific publishing world. The view that “knowledge is a public resource” is gaining traction. The AAAS position is, “We welcome experiments and assessments, and expect change.” While it is unlikely that biomedical research will move completely to online publication, following the model of theoretical physics, clearly online access will become increasingly important, for it includes not only the fuller versions of articles, but also important unfiltered access to work.

    Scientific Research and Bio-Security

    In this era of renewed concern about bioterrorism, homeland security experts, the media, and the general public fear that new biotechnology methods and open publication of life sciences research on infectious agents may serve the interests of terrorists. Articles describing how to assemble poliovirus or reconstitute the 1918 influenza virus have caused conster-nation. Introducing highly infectious organisms into the food supply through livestock or crops could be hugely disruptive to our society. The line between defensive and offensive biological research is “perilously thin,” resting on the intent and perception of different parties (Allison). Many reports have been published on this matter, and national and international Page  37agencies are trying to balance the value of new knowledge and methods—including the value for counterterrorism—against the risk of deliberate misuse. This dilemma derives from what are known as “dual-use” technologies, long a matter of restrictive regulation in the computer sciences and other fields directly utilized in military systems. Now, in addition to Cold War antagonists and “rogue nations,” we must anticipate the intentions and actions of terrorist groups.

    For those interested in these matters, a series of major reports from the National Research Council can be recommended. Biotechnology Research in an Age of Terrorism (the Fink Report) (Committee on Research Standards) urged expansion of existing regulations alongside reliance on self-governance by scientists and editors. Governments were advised to trust scientists and journals to screen their papers for security risks. Seven types of risky studies were identified as requiring advance approval by Institutional Biosafety Committees—such studies as making an infectious agent more lethal or rendering vaccines powerless. In response, the Department of Health and Human Services became the lead agency for implementation of the National Science Advisory Board for Biosecurity, with twenty-four members outside the government and fifteen agency ex-officio members. This committee is quite active. Another committee addressed “Pathogens, Open Access, and Genome Databases” (Committee on Genomics, Seeking Security). NRC published Globalization, Biosecurity, and the Future of the Life Sciences (Committee on Advances in Technology), touting cutting-edge scientific developments like nanobiotechnology and synthetic biology, and calling for vigilance internationally and in the intelligence agencies, while relying on self-governance in the research community. Instances of misconduct or misuse could make this whole scheme open to charges of inadequate safeguards.

    Scientific publishing is a complex process with many public and professional benefits and responsibilities for all parties. Explicit attention to the pressures on researchers and journals, high standards for research integrity, and respect for the public’s interest will benefit all parties.

    Works Cited

    Allison, Graham. “Implications for Public Policy of the Threat from Bioterrorism.” Discussion Paper 2003–11, Belfer Center for Science and International Affairs, Harvard University, November 2003.

    >Biagioli, Mario, and Peter Galison, eds. Scientific Authorship: Credit and Intellectual Property in Science. New York: Routledge/Taylor and Francis Books, 2003.

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    Claxton, Larry D. “Scientific Authorship.” Mutation Research 589 (2005): 17–30.

    Committee on Advances in Technology and the Prevention of Their Application to Next Generation Biowarfare Threats, National Research Council. Globalization, Biosecurity, and the Future of the Life Sciences. Washington, DC: National Academy Press, 2006.

    Committee on Genomics Databases for Bioterrorism Threat Agents, National Research Council. Seeking Security: Pathogens, Open Access, and Genome Databases. Washington, DC: National Academy Press, 2004.

    Committee on Research Standards and Practices to Prevent the Destructive Appli-cation of Biotechnology, Development, Security, and Cooperation, National Research Council. Biotechnology Research in an Age of Terrorism. Washington, DC: National Academy Press, 2004.

    Committee on Science, Engineering, and Public Policy, National Academy of Sciences, National Academy of Engineering, Institute of Medicine. Responsible Science: Ensuring the Integrity of the Research Process. Washington, DC: National Academy Press, 1992.

    Deyo, Richard A., Bruce M. Psaty, Gregory Simon, Edward H. Wagner, and Gilbert S. Omenn. “The Messenger under Attack: Intimidation of Researchers by Special Interest Groups.” New England Journal of Medicine 336 (1997): 1176–80.

    Frank, Martin. “Access to the Scientific Literature.” New England Journal of Medicine 354 (2006): 1552–55.

    Institute of Medicine. “The Responsible Conduct of Research in the Health Sciences.” Washington, DC: National Academy Press, 1989.

    International Committee of Medical Journal Editors. “Uniform Requirements for Manuscripts Submitted to Biomedical Journals.” Updated February 2006. www.icmje.org . Consulted July 5, 2007.

    National Academy of Sciences, Committee on the Conduct of Science. On Being a Scientist: Responsible Conduct of Research. 2nd ed. Washington, DC: National Academy Press, 1995.

    “Policing Integrity.” Editorial. Nature 435 (May 19, 2005): 248.

    Roig, Miguel. Avoiding Plagiarism, Self-Plagiarism, and Other Questionable Writing Practices: A Guide to Ethical Writing. Office of Research Integrity, Dept. of Health and Human Services. http://ori.hhs.gov/education/products/roig_st_johns/, consulted July 5, 2007.

    Schachman, Howard K. “From ‘Publish or Perish’ to ‘Patent and Prosper.’” Journal of Biological Chemistry 281 (2006): 6889–6903. http://www.jbc.org/cgi/doi/10.1074/jbc.X600002200, consulted July 5, 2007.

    Steneck, Nicholas H. “Fostering Integrity in Research: Definitions, Current Knowledge, and Future Directions.” Science and Engineering Ethics 12 (2006): 53–74.

    Steneck, Nicholas H. “Institutional and Individual Responsibilities for Integrity in Research.” American Journal of Bioethics 2 (2002): 51–53.

    Steneck, Nicholas H. Office of Research Integrity Introduction to the Responsible Conduct of Research. Washington, DC: Department of Health and Human Services, 2004.

    Steneck, Nicholas H. “The Role of Professional Societies in Promoting Integrity in Research.” American Journal of Health Behavior 27, Suppl. 3 (2003): S239–S247.

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    Reviewing the Author-Function in the Age of Wikipedia

    Introduction: Wikis, Authorship, and Authority

    As social computing practices transform how cultural texts can be generated and circulated, written communities fostered by wikis offer some insight into the possibilities and pitfalls of dynamic, group-”authored” content production. Wikis are server-side software programs that allow anyone to create and edit web pages with only an Internet connection and a web browser. Quite simply and literally, wikis are a collaborative software tool. The inventor of wikis, Ward Cunningham, describes his software as “the simplest online database that could possibly work.” Cunningham borrowed the Hawaiian word wiki, or wikiwiki, meaning fast or quick, alluding to the ability of a wiki user to quickly change the content of a page.[1]

    The ability for users to edit web pages has profound implications for the development and distribution of knowledge. By de-emphasizing the central role of individual authorship in the production of texts, wikis offer a dynamic, multiauthored approach to their composition. In the last decade, wikis have emerged as a prominent and intriguing component in the production, modification, and dissemination of information and knowledge via the Internet.

    Wiki users can be registered on a wiki system, and in some cases they can participate without naming themselves—they are known only by an IP address. The ability of a user to edit the content is the most striking feature of wikis. Open access has profound implications for the creation and editing of content insofar as it exposes texts’ inherent instability. Unlike fixed media, wikis display the dynamic and inherently social nature of language and meaning as described in theoretical models of language and epistemology. In an unprecedented way, wikis allow discourse to emerge that is Page  40continually negotiated and articulated through a community of users—sometimes thousands of interlocutors. The properties of texts generated through active collaboration test the boundaries of established avenues of knowledge production and modern institutions of knowledge and authority. And while changes to a wiki page can be made by anyone, such changes are ultimately archived as part of the wiki. Therefore, the wiki also functions as a digital palimpsest.

    Wikis invoke a multitude of the theoretical issues regarding authorship raised in late structuralist and poststructuralist thought. For many in the humanities and social sciences, the decentering of authorship in favor of discursive and systemic methodologies more attuned to power, historicity, and a dynamic “field” of representation has led to novel methods for critical interpretation and evaluation. However, such models have not become a significant component in how communication is understood within the public sphere. The singular author is very much the model that governs the expectations of most readers. By complicating traditional notions of authorship, wikis affect associated issues of authority, originality, and value.

    Authorship, the Author-Function, and Literary Studies

    The romantic “author,” whose genius and originality bring “newness” into the world, has been increasingly problematized by literary theorists and cultural historians over the course of the last forty years. Martha Woodmansee’s historical work on the development of authorship vis-à-vis Romanticism and property has played an influential role in relating market logic with aesthetic rationale. While not reducing individualized authorship and the uniqueness of the literary work to a function of market economics and legal theory, Woodmansee’s 1994 study, The Author, Art, and the Market: Rereading the History of Aesthetics, provides a detailed analysis of how changing market conditions in the eighteenth century facilitated the development of a romantic view of authorship.[2] Such detailed historical and cultural analysis has demonstrated that views of authorship are contingent upon a number of factors: historical moment, geographical location, and prior cultural practice. Not only is the individual author a relatively recent historical phenomenon, but the birth of the author as a solitary entity has marginalized writing practices in which the individual does not solely develop a work. Only in the last forty years have literary and cultural studies mounted a sustained examination of the “author” as a contingent figure.

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    The debate over authorship came to the fore during the mid-1960s when structuralism was being critiqued based on deconstructive insights into the relativity of language acts. In his seminal 1968 essay, “The Death of the Author,” Roland Barthes implores his readers to acknowledge the death of the author in order to liberate the reader.[3] Using structuralist insights on language as a system, Barthes posits that the act of writing “is that neutral, composite, oblique space where our subject slips away, the negative where all identity is lost, starting with the very identity of the body writing” (142). He argues that by falling back upon the concept of an idealized, corporeal, and totalizable author, we lose the ability to appreciate how texts function. Barthes is laying the foundation of an argument that he would develop over the course of his career: the movement away from autonomous literary work to contingent cultural text. Replacing the author, he posits a modern scriptor that would emerge “simultaneously with the text,” never “preceding or exceeding the writing” (146).

    Barthes makes the case that any analysis of iteration and representation must consider the social, interactive, and communicative function of language, and not just the biography, psychology, and intentionality of the author (or, parallel with the “author,” an idealized “work” of the sort posited by some formalists, such as the New Critics). He writes, “A text is made of multiple writings, drawn from many cultures and entering into mutual relations of dialogue, parody, contestation, but there is one place where this multiplicity is focused and that place is the reader, not, as was hitherto said, the author” (148). In order to recognize Barthes’s insight, it is important to note the intellectual relevance of authorship to virtually every facet of humanistic scholarly inquiry. During the modern era, the humanistic traditions of literature, philosophy, and history all developed in conjunction with, and were reinforced by, the concept of individualized authorship. Thus, Barthes was responding to both academic and popular representations of authorship with his polemical essay, concluding with his now famous dictum, “The birth of the Reader must be at the cost of the death of the Author” (148).

    The following year, Foucault responded to Barthes with “What Is an Author?” which develops the concept of the author-function.[4] The notion of the corporeal author is reviewed as part of the discursive regimens that link the author to the work. Foucault heuristically deploys the question, adapted from Samuel Beckett’s Texts for Nothing, “What does it matter who is speaking?” to develop a new set of parameters to interrogate authorship, textuality, and the types of authority that relate to conceptions of authorship.[5]Page  42Much of the essay involves a careful explication of how we might conceive of the author-function. Importantly, Foucault is careful to note its variability. Authorship exists within different discourses, defining characteristics such as originality, authority, and property that vary according to the particular discourse. But Foucault does not want simply to replace the concept of the author with the author-function. In trying to read authorship as a contingent affair, he shows that the author-function does not affect discourse in a “universal and constant way” (149). Here Foucault the historian analyzes different types of authorship at different historical moments, noting the variable and at times contradictory function of the author under different conditions of discourse.

    For example, Foucault looks at the inversion of the author-function as it relates to discourses we now call “scientific” and “literary.” During the Middle Ages, only those scientific texts marked by authorship could be accepted as having authority. Yet literary works were circulated and valorized without any consideration of authorship. He notes that in the seventeenth and eighteenth centuries, this situation reversed and the author-function became more prominent in literature and less influential in science. This observation, on the variability of the author-function, serves two purposes. It shows how authorship can vary both among different discourses and within them as well. Thus, the question of authorship becomes a contingent affair, no longer to be projected upon a corporeal figure, but subject to specific, if variable, forces. Reorienting the reception and analysis of texts toward an author-function would enable us to ask different kinds of questions than those we had grown accustomed to asking: that is, “Who really spoke? Is it really he and not someone else? With what authenticity or originality? And what part of his deepest sense did he express in his discourse?” (157).

    Foucault’s aim in undertaking this critique of the author, not unlike Barthes’s, is to query naturalized conceptions relating author with work. But Foucault goes beyond Barthes’s own romanticization of the reader to a model in which the author-function is variable and reconfigurable according to the tenets of the juridical, political, and social institutions that shape all discourses and thereby frame how knowledge and authority come to be understood. While he suggests that the author-function may one day disappear, discourse requires that other forms of restriction and delimitation emerge in its absence. In wikis, such order arises from what Foucault forecasts as a new mode of “experience” (160), embodied by the engagement with a specific burgeoning and palimpsestic medium.

    Page  43

    Wiki Technology and the Wiki Writing Process: The Case of Wikipedia

    The “About” page on Wikipedia.org (as of January 30, 2006 at 4:33 p.m.) begins, “Welcome to Wikipedia, the communal encyclopedia that anyone can edit. The content of Wikipedia is free, written collaboratively by people from all around the world. This website is a wiki, which means that anyone with access to an Internet-connected computer can edit entries simply by clicking on the “edit this page” link.

    If you wanted, you could change the introduction on the “About” page without creating an account or typing a password. Similarly, you could view the “Discussion” or “Talk” page—another editable record used to track dialogue between users editing the main content page. Here you can see content in the process of refinement toward a publishable state—with discrepancies being hashed out among users, or the ever scrutinized neutral point of view (NPOV) of the article being debated (wikipedia.org/wiki/WP:NPOV). There is significant authorial power available by entering into the online discourse at any point on any page—this is the ability to leave one’s mark via content or style on the wiki’s dynamic history. In fact, your last option, to view the “History” of the page, is a time-stamped record of all edits made to a page. The trifold set of article, discussion, and history—each possessing separate but interrelated purposes—together completes a single wiki article.

    The structure of the wiki’s interface—specifically the MediaWiki software used by Wikipedia—in both presentation and editing views enables a transparent connection/interrelation between author, reader, and editor. These seemingly separate roles are represented by the interconnected Wikipedia community as a whole and, as we shall later suggest, can be consolidated into a single online entity. This facilitation of a synthesis of writing roles within the grander scope of a comprising community allows wikis to transcend even the superficial definition as a transparent tool or simple piece of software.

    A wiki is—beyond the digital bits of software application code—the technological support structure for what we will call the wiki writing process. This process incorporates the aforementioned standard roles in writing and facilitates a new paradigm of collaboration on a massively distributed scale. Where there may once have been a one-to-one or one-to-many relationship between the separated roles, there now exist many-to-many relationships among wiki users as they interact with and within the community.

    Page  44

    These relationships persist beyond any singular or even traditionally serialized publication. In fact, the only way to define the publication of wiki content is in the sense of “Serial Collaborations,” a term used by Peter Jaszi (40). These collaborations are pieces of writing that are, or can be, infinitely edited over time by the users. There is a persisting dialogue between the users as they assume the various roles of reader, writer, and editor, which forces the actual wiki writing process into the loose category of “discursive practice,” as put forth by Foucault. The collaborative and iterative aspect of wikis serves, then, to magnify this idea and gives the process its inherent strength, as well as its inherent weakness in regard to traditional definitions of authority.

    Essentially, Wikipedia provides an example of poststructuralist principles operating online—an idea impressively illustrated by the “history flow visualizations” of Wikipedia article revisions generated by Fernanda B. Viégas, Martin Wattenberg, and Kushal Dave. The original analysis of Wikipedia article evolution by the team “revealed complex patterns of cooperation and conflict” (575). These stem from the community-enabling editing capabilities built in to the “Talk” and “History” article pages, as well as the “Watch List” option available to registered users, providing an alert system for vigilant writer-editors to defend the integrity of specific articles. The goal of these discursive provisions is informal oversight of content, which can be subject to “malicious editing”[6]—one of the strongest criticisms against Wikipedia. The history flow visualizations mapped three categories of wiki article revisions: (1) editing of content on average, (2) a malicious mass deletion of content, and (3) a mass deletion replaced by obscene content. The median survival time of the first category was 90.4 minutes, which broke down to 21 percent of edits reducing page size, 6 percent reducing it by no more than fifty characters.[7] Such numbers primarily indicate tightened prose and the elimination of irrelevant information (579, 581). Of course this dynamism is what makes citing Wikipedia problematic. This downside—most apparent when trying to perceive Wikipedia in the vein of a traditional encyclopedia—is balanced by the fact that new content is quickly and easily added to articles as events unfold. For instance, the study refers to how within a week of the invasion of Iraq in 2003 an entry devoted to the topic was written, and had tripled in size in a few weeks (581). The fast-responding character of the Wikipedia user community also catches and repairs mass deletions at a median delay of 2.8 minutes—1.7 minutes for those involving obscenities (579). The data produced indicates, to at least those versed in poststructuralist insights on language, that Page  45Wikipedia’s neoteric authorial/editorial community is attempting to maximize the radical functionality/medium of wiki technology—publishing, editing, and republishing content (with self-governing oversight) at a frequency unimaginable in other media.

    The aforementioned famous last line of Barthes’s “The Death of the Author” is meant to undermine the authorial identity ascribed to a given text, devaluing what was once the author-genius into a mean “scriptor.” This serves as preparation for new media, rather than a total destruction of previous cultural regimes. When we examine the wiki writing process, we find that the distinctions between author and reader have been blurred. Though individual “readers” will come across wiki pages, they are empowered to edit the very content they are consuming—to superannuate the traditionally bilateral division of reader/author, or the earlier mentioned trilateral division of reader/writer/editor. The reader and author are birthed in unison as the wiki “users.” In this moment the author-genius subordinates itself to the community that comprises these superempowered users.[8]

    In Foucault’s inquisitive response to Barthes, the analysis of the semantic tangles of a dying author suggest the potential capacity for wikis to act as an evolved species of literature, employing the communitarian army of users on hand. Digital phenomena are seemingly fragile and fraught with change, but wikis provide a dynamically collaborative (edit), continuous (discussion), and constant (history) space. And we see this digital pal-impsest harnessing an Internet of multifunctional users. As such, our wiki—the new media institution for the wiki writing process—forms the instance of an authorial framework that Foucault’s critique of Barthes anticipates.


    1. Cunningham developed wiki software in the mid-1990s. His WikiWikiWeb, the first wiki, has been running since 1995 and facilitates specialized programming.return to text

    2. Woodmansee, along with legal scholar Peter Jaszi, under the auspices of the Society for Critical Exchange (SCE), convened a large interdisciplinary group of scholars to address the state of “author” studies in the early nineties. This meeting resulted in a diverse array of essays published in 1994 as The Construction of Authorship: Textual Appropriation in Law and Literature. In 2006, SCE held a follow-up conference, Con/texts of Invention, which reexamined these issues in light of the previous decade’s work and the emergence of pervasive digitality.return to text

    3. Barthes’s essay originally appears as “La mort de l’auteur” in Manteia 5 (1968): 12–17.return to text

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    4. Foucault’s response originally appears as “Qu’est-ce qu’un auteur?” in Bulletin de la Société Française de Philosophie: Séance du Samedi February 22, 1969, 73–104.return to text

    5. Foucault invokes a passage from Beckett’s Texts for Nothing, which he slightly modifies from the original, “What matter who’s speaking, someone said what matter who’s speaking” (16).return to text

    6. Malicious edits are analogous to “vandalism” of wiki article content (Viégas, Wattenberg, and Dave 578). This vandalism can take the form of mass deletions or additions of obscene or injurious content.return to text

    7. Viégas, Wattenberg, and Dave define median survival time as “the total time that these edits remained on the site” (579).return to text

    8. Not all wikis function exactly like Wikipedia. Many wiki programs, including the open-source Media-Wiki platform upon which Wikipedia is based, can be configured to provide different levels of access. For example, in a classroom environment, the wiki’s administrator might restrict writing/editing access only to class participants. Despite such variability, the basic principle of providing access to shared documents remains intact irrespective of the specific wiki platform. The ability to read, compose, and edit content, whatever the constitution of the group, allows for a very different form of written expression to take shape. In the classroom, this results in a composition process that is more explicitly social. Communication need no longer take place solely between student and instructor, writer and reader, but among a community of interlocutors. Thus, acts of composition are not conducted solely in isolation and require continual linguistic and communicative negotiations with active participants.return to text

    Works Cited

    Barthes, Roland. “The Death of the Author.” In Image Music Text, trans. Stephen Heath, 142–48. New York: Hill and Wang, 1978.

    Beckett, Samuel. Texts for Nothing. Trans. Samuel Beckett. London: Calder and Boyers, 1974.

    Cunningham, Ward. “What Is Wiki?” Edited June 27, 2002. http://wiki.org/wiki.cgi?WhatIsWiki, consulted May 30, 2005.

    Foucault, Michel. “What Is an Author?” In Textual Strategies, trans. and ed. Josué Harari, 141–60. London: Methuen, 1978.

    Jaszi, Peter. “On the Author Effect: Contemporary Copyright and Collective Creativity.” In The Construction of Authorship: Textual Appropriation in Law and Literature, ed. Martha Woodmansee and Peter Jaszi, 29–56. Durham, NC: Duke University Press, 1994.

    Viégas, Fernanda B., Martin Wattenberg, and Kushal Dave. “Studying Cooperation and Conflict between Authors with History Flow Visualizations.” Conference on Human Factors in Computing, Vienna, April 24–29, 2004. http://opensource.mit.edu/papers/viegaswattenbergdave.pdf, consulted June 24, 2005.

    “Wikipedia: About.” Wikipedia. January 30, 2006, 2:16 UTC. http://en.wikipedia.org/w/index.php?title=Wikipedia:About&oldid=37298037, consulted January 30, 2006.

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    “WP:NPOV.” Wikipedia. January 30, 2006, 2:21 UTC. http://en.wikipedia.org/w/index.php?title=Wikipedia:Neutral_point_of_view&oldid=37298596, consulted January 30, 2006..

    Woodmansee, Martha. The Author, Art, and the Market. New York: Columbia University Press, 1994.

    Page  48

    Internet and Open-Access Publishing in Physics Research

    Publication of research in most areas of physics has changed dramatically in the past decade, with nearly all research now being published on the Internet. To appreciate how this has happened, why it is here to stay, and how it is likely to spread to other areas, it is necessary to understand that publication in physics is essentially done via papers, usually rather narrowly focused short papers on a single topic. The few books that physicists have written are mainly pedagogical. In my field, theoretical physics, papers typically have one to four authors. In most areas of physics the order of authors on a paper is always alphabetical. The changes in how research is published, which I will describe below, have in turn significantly modified how research is done. Most research is still (also) published in journals, but their purpose is now largely archival: I and most physicists no longer subscribe to or read journals.

    Every day anyone anywhere who finishes a paper posts it on the Internet, at www.arxiv.org. The next day anyone anywhere with Internet access can visit that site, read the title and author(s) of all the papers posted that day, click and read the abstracts if they wish, and then click and bring up any paper on their screen, click and print it. The arXiv (as it is named) was started by Paul Ginsparg in 1991 for theoretical particle physics, and has now expanded to most areas of physics as well as such theoretical fields of science as mathematics, quantitative biology, and so on. To help keep the system always accessible and responsive, and fast even for large information transfers, there are currently seventeen mirror sites worldwide, including three in the United States, five in Europe, and four in Asia. Currently the arXiv is supported mainly by Cornell University and the National Science Foundation. The costs are small, on the order of 2 percent of that of Page  49the main U.S. physics journal, Physical Review. The arXiv manifesto is “ArXiv is an openly accessible, moderated repository for scholarly papers in specific scientific disciplines. Material submitted to arXiv is expected to be of interest, relevance, and value to those disciplines. ArXiv was developed to be, and remains, a means for specific communities to exchange information” (www.arXiv.org). Note that the criteria do not directly include some that one might expect to find on the list, such as “correct.” Originally anyone could post papers, with essentially no content control or peer review. That has evolved to mild control—basically once one has posted something, one can then post anything in that and related areas. First-time authors need “endorsement” from someone who has posted something.

    An unintended consequence of the existence of the arXiv with daily posting is that it has hugely accelerated the rate of research, and subtly shaped the form papers take. Research has shifted toward being a dialogue, or better, multilogue. Communication has always been very important for research in theoretical physics. In the past one might work on a topic for some months without much interaction with others. Now as one is working, relevant papers are appearing, so one integrates their results, and work moves rapidly.

    Journal publication is still used for archival purposes, and for evaluations by committees, chairs, deans, and so on. The posted arXiv papers are not peer reviewed. If an active researcher cannot tell whether something is valid, it is his or her problem. It is pretty clear to experts what work is relevant. There are strong inhibitions against posting low-quality or wrong work because of the resulting damage to one’s reputation. For two reasons this system is probably relatively easy to implement in theoretical physics compared to other areas, such as biology. First, in physics results are normally right or wrong, relevant or irrelevant, and it is not very hard to tell which. Second, most people who have been in the field for a while are acquainted with or at least aware of nearly all the others in the field, and with their work and biases and how likely they are to be correct.

    In theoretical physics this open-access Internet publishing is an unqualified success. Will it spread to all areas of science and even more broadly? At the institutional level there is movement toward making this happen. As one example, the Abdus Salam International Centre for Theoretical Physics (based in Trieste) has very recently organized an open-access archive that allows the scientific work of any scientist from any country to be posted free of charge. Authors may upload preprints, reprints, conference papers, prepublication book chapters, and so on. Acceptable subjects Page  50include science areas such as physics, mathematics, biology, earth sciences, computer sciences; technology areas such as computer software and networking, environmental technology; education areas; science policy areas; and more.

    CERN, the European particle physics center, in December 2005, hosted an international meeting, attended by about eighty representatives of major publishers, learned societies, funding agencies, and authors from Europe and the United States. Its goal was to promote open-access publishing. In March 2007, a task force recommended establishing a sponsoring consortium for open-access publishing in particle physics (SCOAP), in which a “global network of funding agencies, research laboratories, and libraries will contribute the necessary funding” (“Proposal”). Contributors will recover their payments by cancelling paper subscriptions; payments will be based on the number of scientific publications from a country or laboratory over a specified time period. It seems rather clear that in essentially all areas of quantitative theoretical science open-access publishing will be increasingly important. The American Association for the Advancement of Science (publisher of Science) has recently done a study on open access, available at www.alpsp.org (though it focuses on open-access journal publishing rather than independent posting such as the arXiv).

    Moving to open-access publication will be more difficult in biology for several reasons. Evaluating the validity of reported results is considerably more difficult in biological areas and particularly in biomedical ones, where many more variables and considerations can affect the outcome of experiments and analyses. Science in these areas is less theoretical than in physics. There are far more practitioners, so it is much less likely that the people and their reputations are known to nearly everyone. It is harder to tell who actually did the work. The top journals (e.g., Science and Nature) currently refuse to publish a paper if it is first posted on the arXiv. Coming to terms with these issues, and finding a productive level of open-access publishing for areas other than theoretical science, will receive increasing attention in the near future.

    The arXiv (and presumably open-access publishing in general) will keep evolving. Recently the arXiv added a new feature whose value and use level are not yet known. A qualified physicist with a blog can write a comment about a particular paper. Using a new protocol called TrackBacks, the blogger’s website notifies the arXiv, which then provides a link to the blog next to the abstract of the paper. Anyone who looks at a paper can then click and read what others have written about it. Only those Page  51qualified to post on arXiv can comment, and TrackBacks from anonymous sites are not allowed.

    Finally I will comment briefly on some of the themes of this anthology, plagiarism and scientific fraud. They provide further perspective on why open-access publishing has been and will be easier to implement in theoretical science than in other areas. Basically, plagiarism of writing and fraud are not important issues in theoretical science, whatever one might read from experts in these areas or in the media. First, the fraction of workers who might do these things is probably smaller than in other areas, partly because workers mostly are trained by example not to do it, and more importantly, because they are aware that they are highly likely to be caught. The results of science can be trusted, with high probability in the short term, and with very high probability in the longer term. That is not because every scientist is honest—not all are—but because if a paper or a result is interesting then knowledgeable people will quickly see it, read it, and try to reproduce the result. Copying and fraud will be spotted, and not ignored. Reproducing results can take longer if detailed calculations or lab measurements are involved, but they will be done. These mechanisms have operated effectively in all the well-publicized cases, with scientists catching the fraud about as quickly as possible, given the time needed for checking the results, despite current media and “ethics expert’s” hype. The integrity of science is functioning just as it should and protecting the public as well as is possible. It is extremely difficult to fool scientists into thinking a false result is true (and, of course, the results of science are compared to a real world, so truth is not socially constructed).

    Plagiarism of ideas is a somewhat larger problem, but not a significant one. The period from having an idea to showing the idea is not inconsistent with existing data and theory, and figuring out feasible tests of the idea can take weeks to months and can only be done by qualified scientists. Theoretical science is a communication-intensive area, so scientists mostly know what everyone in the world in their area is doing, and who has what ideas. Top research universities and labs have one to two seminars a week in each research area (theoretical particle physics, astrophysics, etc.), mostly from outside visitors, usually about recent or unfinished work. ArXiv posting settles literal priority (journal publication dates are no longer relevant). Plagiarism of ideas may occur, but is unlikely to go undetected; the subsequent damage to the reputation of those doing it acts as a deterrent.

    Theoretical physicists and theoretical scientists in general are very happy with the arXiv and with open-access publishing. There seems to be Page  52a nearly ideal match with how research should be done in these areas. Some modifications will be needed for open-access publishing to spread to other areas of science, and beyond science, but I am confident that will probably happen.

    Work Cited

    >“The arXiv Endorsement System.” www.arXiv.org/help/endorsement, consulted May 8, 2007.

    >“Proposal to Establish a Sponsoring Consortium for Open Access Publishing in Particle Physics.” http://doc.cern.ch/archive/electronic/cern/preprints/open/open2007-009.pdf. Consulted July 26, 2007.

    Page  53

    Do Thesis Statements Short-Circuit Originality in Students’ Writing?

    I decided to take on the issue of thesis statements when I failed a test. It was a test on essay introductions in Diana Hacker’s online exercises, and the example that pushed my buttons posed these two possible beginnings and asked which was better:[1]

    Soft money is the term used for campaign contributions that sidestep laws governing the amount of contributions candidates can get from any one source. Many election campaigns are financed largely with soft money, whether it is raised by the candidates themselves or by their party organizations. Soft money pays for items such as television ads that endorse a political issue rather than a candidate.

    Every election year, political parties and candidates raise millions of dollars in soft money, contributions that sidestep laws limiting the amount of money a candidate can receive from any one source. Because unregulated soft money can make winning candidates feel indebted to wealthy donors such as unions and corporations, we must close the undemocratic loopholes in our current campaign finance laws.

    I saw more potential in the firstbeginning. While the second seemed to require more information between the first and final sentence, the first led coherently and specifically into the subject, and I felt a distinct “but” at the end of the passage, implying that in the upcoming paragraph the writer would turn from definition to problem. However, when I selected the first passage I received this rebuke:

    Sorry. The opening sentence defines a term instead of engaging the reader’s attention. More important, the introduction goes nowhere: It does not assert a thesis to be developed in the rest of the paper.[2]

    Page  54

    An introduction to an essay—academic or otherwise—should indeed engage the reader and set the stage for the intellectual work the writer intends to do. But only in student writing is the writer expected to place at the end of the first paragraph a one-sentence statement of the conclusion the writer is aiming for and then, as students often put it, “prove” that point. Today, students are taught as early as elementary school to use thesis statements, and can arrive at college with several years of practice in mechanical beginnings that encapsulate the argument and often forecast the three or four pieces of evidence that will follow. I wonder, then: Does requiring a thesis at the end of the first paragraph undercut efforts to teach students to try different techniques, to let form follow content, to be creative, even original?

    My favorite beginnings do not involve thesis statements. Peter Elbow, for example, in “Reflections on Academic Discourse: How It Relates to Freshmen and Colleagues,” characteristically starts off with a question:

    I love what’s in academic discourse: learning, intelligence, sophistication—even mere facts and naked summaries of articles and books; I love reasoning, inference and evidence; I love theory. But I hate academic discourse. What follows is my attempt to work my way out of this dilemma. In doing so I will assume an ostensive definition of academic discourse: it is the discourse that academics use when they publish for other academics. And what characterizes that discourse? This is the question I will pursue here. (135)

    Harriet McBryde Johnson, in “Unspeakable Conversations Or How I Spent One Day as a Token Cripple at Princeton University,” her New York Times Magazine essay about her discourse with pragmatist philosopher Peter Singer, starts with humor—and provocation:

    He insists he doesn’t want to kill me. He simply thinks it would have been better, all things considered, to have given my parents the option of killing the baby I once was, and to let other parents kill similar babies as they come along and thereby avoid the suffering that comes with lives like mine and satisfy the reasonable preferences of parents for a different kind of child. It has nothing to do with me. I should not feel threatened.

    Whenever I try to wrap my head around his tight string of syllogisms, my brain gets so fried it’s . . . almost fun. Mercy! It’s like Alice in Wonderland. (50)

    Page  55

    Indeed, professional writers can consider many options when they are casting around for beginnings: contrasting quotations, personal anecdotes, description of a problem, dialogue, narrative, and so forth. They use these options to produce introductions that identify the subject and direction of an essay without giving away the plot. What students might call the thesis statement (the professional writer might call it the argument) may even be saved until the conclusion, after readers have been prepared by the evidence to accept that position as reasonable.

    Perhaps full disclosure of my bias is appropriate here: I didn’t learn about thesis statements in college or graduate school or while teaching high school English and history in the 1960s. The term was never mentioned when I wrote for newspapers and did editing for a publishing company and a department of surgery in the 1970s or when I worked for a law firm in the 1980s. And so, in the 1990s, when I began to study composition theory and pedagogy and encountered thesis statements, I didn’t find them useful. I attempted to ignore them.

    But students today, and their writing teachers, will find it difficult to ignore thesis statements. Every handbook and almost every textbook that I have examined assumes that a thesis statement at the end of the first paragraph is the standard form in college writing.[3] At the University of Michigan’s Sweetland Writing Center, where I’ve worked since 1998, approximately a third of students visiting the center check a form saying they want help formulating thesis statements. Most students who have appointments with me assume they must have a thesis statement at the end of the first paragraph—and if I mention that they have other options, they look bewildered.

    Further, when I Googled thesis statement I got 186,000 hits, including a site for fifth graders (W. W. Norton) that advised them that the thesis statement “The fat content of school lunches is excessive for children” was better than “School lunches suck.” (I would have chosen the wrong beginning here, too.) Narrowing my search to thesis statement and college, I got 61,500 sites, and most of the first 50 were websites of university writing centers, including those of Indiana, Purdue, North Carolina, Richmond, Wisconsin, Kentucky, Rutgers, Penn, Penn State, Ohio, Harvard, Colorado State, SUNY, and Temple. These sites, too, treat thesis sentences as the default mode in college writing. Indiana University’s website notes that “almost all of us . . . look early in an essay for a one- or two-sentence condensation of the argument that is to follow. We refer to that condensation as a thesis statement.” The University of Illinois advises students that “everything you Page  56write should develop around a clear central thesis. . . . It should appear in the first paragraph.”[4] The University of North Carolina advises students, “Always assume that your instructors expect you to . . . [argue] a position that you set out in a thesis statement” and that “a single sentence somewhere in your first paragraph should present your thesis to the reader.”

    Why has the thesis sentence become a required element in college writing? Why, when we stress preparing students for any writing contingencies that may come up in jobs or in life, do we confine them to one way, and one way only, of beginning a piece of writing? Where did the thesis statement come from and what accounts for its present popularity?

    To seek the origin of thesis statements, I turned to antiquity, since so many categories and methods in the teaching of writing derive from Aristotle and come to us by way of the Roman rhetorician Quintilian, who wrote copiously about teaching rhetoric. Looking up thesis in the index of The Rhetorical Tradition led me straight to Quintilian’s Institutes of Oratory, book 2. Back then, however, thesis had a different meaning. Theses meant “general questions,” in contrast to hypotheses, which dealt with specific instances. The thesis was an assignment given to young writers on an abstract, either/or topic. Quintilian recommends four: Whether it is better to live in the city or the country; whether a lawyer or a soldier has more merit; whether a man should marry; and whether a man should seek political office. These questions were abstract in the sense that students were to practice pure reasoning rather than attach significance to particular persons, places, or situations (298, 304–5). It struck me that a writer need not have a particular passion for either side in these exercises. He can answer yes or no and simply assemble some evidence in favor of his point. The project is thus a training exercise, what the British refer to as a dummy run.

    If this ancient precedent is the model for today’s thesis statement, one might suspect that today’s thesis-driven paper is, at best, a test, a carefully circumscribed way of assessing skills useful in writing, skills such as using evidence, quoting from sources, or synthesizing information. At worst, the model suggests that education is largely ceremonial, and that students are required to enact the ceremony, just as their teachers did before them. In his introduction to Paul Heilker’s The Essay: Theory and Pedagogy for an Active Form, Derek Owens makes a similar point, arguing that the school paper is not meant to further the student’s knowledge, or further the knowledge of anyone else in the field, or convince a wider audience. As he puts it, “The research paper, the exam question, the master’s thesis, the dissertation, the professional article, the scholarly book—these are Page  57almost never expected to be catalysts for real change. They are primarily icons” (xi).

    Given that Quintilian required theses, I expected to find more of a history for the term.[5] But I could not find any mention of the word thesis, much less thesis statement, in my research on the teaching of writing in the eighteenth century, when the textbooks of George Campbell and Hugh Blair ruled the field (Berlin 19–34), and I found the word in only one of the nineteenth-century textbooks and handbooks I actually examined. The one exception was Elias J. MacEwan’s The Essentials of Argumentation (1899), which defines a thesis as either “a proposition put forward to be supported by argument” or “an argumentative composition embodying the results of original research” (401). Several other nineteenth-century texts use the term proposition. Richard Whately, in his 1828 Elements of Rhetoric, advises students to state a “proposition or propositions to be maintained” (Berlin 30). Charles William Bardeen, in A System of Rhetoric (1884), advises “boys” to begin by indicating their area of interest and proceed to a proposition that can guide their organization. Robert Palfrey Utter, who taught at Amherst, told students in A Guide to Good English (1914) that in argument you need a “main proposition,” a “definite assertion” or a question—something debatable. The introduction should lead to the “determination of the special issue” (114). I wondered if a proposition was merely an earlier version of a thesis statement, but Utter defines it as any “definite assertion or question” and indicates that it is a step in logic:

    Proposition: x is y.
    Definition: y is a, b, and c.
      If, then, x is a, b, and c, x is y.
    Special issue: The question then becomes, is x a, b, and c? (113)

    Although none of the above authors specified that the proposition be included in the essay, some early textbook writers did urge students to write out a summary of the argument they intended to make. Thus, James Morgan Hart from Cornell advised in A Handbook of English Composition (1895): “Formulate your subject in a complete and clearly-worded sentence, before you begin to write. [You] need not insert [this sentence in the] composition” (451). Frances M. Perry of Wellesley, in An Introductory Course in Exposition (1908), asks students to summarize their arguments before they begin writing to insure that they have “a comprehensive view . . . of the subject as [they] intend to treat it” (52). But Charles Sears Baldwin, in his 1906 manual Page  58How to Write, warned that because an essay “deals with the outside only in order to reveal the inside” (55), its meaning “cannot so often be summed up in a single sentence” (63). Later in the manual, he advised that a “formal opening promises a cold and dry going on” (72).

    Rosaline Masson describes two methods of writing an essay in her Use and Abuse of English: A Hand Book of Composition (1900). In the didactic method, she says, you would “begin by stating your conclusion and then justifying and illustrating it” (99); in the analytical method, you would “gradually lead the way to [a] conclusion, by giving reason after reason and fact after fact, until you have prepared the mind of the reader to receive . . . the conclusion to which all your arguments have tended” (99). Clarence Dewitt Thorpe of the University of Michigan favors the second of these two options in his 1929 text College Composition. “The wrong way to build an argument,” Thorpe says, “is to form a conclusion and then look for facts and reasons to support this conclusion” (418).

    The first appearance I have found of the term thesis as it is used today occurs in two textbooks published in 1943. John Crowe Ransom states in A College Primer of Writing that in argument, “the writer defends or opposes some ‘thesis’ or proposition” (82), and Argus Tresidder, Leland Schubert, and Charles W. Jones, in Writing and Speaking, claim that “first, in all argument a thesis must be presented” (381). The idea of presenting a thesis must not have been firmly established, however; Cleanth Brooks, in Fundamentals of Good Writing: A Handbook of Modern Rhetoric, published in 1950, never mentions a thesis and advises that an introduction should “state the precise question with which the discussion is to be concerned” (23).

    If the idea that students’ papers should present a thesis began in the 1940s, and if thesis statements became the default mode for college writing by, say, the 1980s, my attempt to account for the popularity of thesis statements must focus on what, during those years, would have made this mechanism valuable. Fueled by the GI Bill and the growing number of women seeking higher education, more students, from more varied backgrounds, poured into colleges. To teach these students, colleges turned to adjunct faculty and graduate students, many of whom were not trained in rhetoric. One can imagine that these new teachers needed specific, aptly named, easy-to-teach principles that would help them teach writing. To add support to this notion, Robert J. Connors, in Composition-Rhetoric: Backgrounds, Theory, and Pedagogy, points out that somewhere between the 1930s and 1950s, textbooks on writing began to focus on one “master idea” about writing that “should control the way that students learn to write” Page  59(250) and to subordinate the textbook’s pedagogical material to that idea. During that same time frame, science rather than the humanities became the dominant influence in the academy, and a more scientific, formulaic approach to writing—one that made students’ writing seem more objective and less personal—may have had particular appeal for English departments.

    In an e-mail message to the author on September 27, 2005, Margaret Proctor, author of the handbook Writer’s Choice and coordinator of writing support at the University of Toronto, suggested that standardized tests such as the SATs popularized the use of thesis statements.[6] “For Canadians,” she explained, “the idea of a thesis statement appears only in the 1980s, when universities here started asking for TOEFL scores and sometimes also imposed post-admission writing tests using the convenient form of the 5-paragraph essay.” If the SATs precipitated a need in the United States for a form of writing that could be easily assessed, the thesis statement/support form would certainly have benefited both teachers who taught to the test and those who graded it. Furthermore, the thesis limits the discussion, and the more limited the discussion, the more quickly the teacher can judge whether the student made her case.[7]

    Beyond these practicalities, however, I think the notion of a “master idea,” a thesis statement—one of our most popular handouts speaks of “the Magic Thesis Sentence”—must have a certain resonance in the world today. While writing this essay, I read a New York Times Magazine article about George Lakoff’s efforts to teach the Democrats to frame their messages using simple unified slogans like the Republicans did in the last election (Bai 2005). Did the Republicans win in 2004 because they disregarded nuance and relied on thesis statements? Asking myself that question, I recalled my students’ difficulty in summarizing arguments from the New York Times Magazine, Harper’s, the New Yorker, and the Atlantic Monthly, as well as guest editorials and op-ed pieces. Students often complain that assigned articles are too hard to understand. They want professional writers to state in the introduction exactly what they are arguing. In other words, if the argument is implied by the preponderance of evidence rather than stated succinctly at the end of the first paragraph, students can’t figure out what it is. I began to wonder whether the course of history is now being changed because a generation of citizens has internalized the school ideal that all good writing begins with a thesis statement.

    But while I was thinking about unified messages, it occurred to me that corporate memos and e-mails probably benefit from thesis statements that Page  60simplify the message: We need to buy more Burger King stock; I recommend Ramsey for the job. Three points of support for the assertion would undoubtedly follow. Perhaps fads in the teaching of writing—and I like to think of the thesis statement as a fad—happen because a significant technology profits from them.

    I’ll end with three objections to thesis statements and the thesis/support form:

    1. The form makes it too easy for students to do perfunctory work that requires no engagement, creativity, or thought. One student told me he could write a thesis essay in two hours flat and get an A every time. In an article in the Michigan Daily, law student Dustin Lee makes a similar claim.[8]

    You can write an A-quality essay without any substantive knowledge of the reading. . . . [W]hen it comes time to write a paper, skim the reading material for a few quotes that could reasonably be suggestive of some underlying liberal theme—for example, that The Red Badge of Courage is actually about lesbianism—and use these quotes as evidence of the underlying theme. Make sure you emphasize in your paper that “although this topic is not explicitly addressed in the text” your excerpted quotes can reasonably be suggestive of whatever generalized theme you chose. (4)

    I do see the practicality of being able to go on automatic pilot, so to speak, to write a paper. While teachers, textbooks, and handbooks may urge students to choose the thesis statement last, after significant research, students are as constrained by time as the rest of us and will opt for efficiency and fit the paper to the thesis if they can.

    2. The thesis statement is not a neutral device. It affects content because it controls what you are able to say as well as how you can say it. It assumes a view of knowledge as external and somehow “provable.” This view of knowledge relieves the student of any necessity for generating and reflecting on new ideas, exploring and testing her beliefs, or experimenting with different schemes of arrangement to find an organizational strategy that best suits her project. Her only question becomes, What can I say that I can support?

    Isn’t the above process profoundly anti-intellectual? Don’t we in academia value our willingness to question everything, to suspend belief and seek new possibilities, to recognize that facts change and writers can be seduced by clichés and assumptions?

    Page  61

    Heilker, in his book on the essay, proposes a more personal, introspective form as a substitute for the thesis paper because of three qualities summed up by Owens in the introduction:

    • The author doubts easy answers and doesn’t accept on faith anything that’s been said about the subject before;
    • The author is willing to venture into unknown territory, rejecting academic answers if necessary; and
    • The author is willing to experiment, to trust “chrono-logic” rather than any established form, to let the ideas unfold as they may. (xiii–xiv)

    3. Many teachers, including Nancy Sommers,[9] believe that learning to use thesis statements and provide support is a necessary developmental phase in the training of a young writer. But the work of elementary school teachers such as Lucy Calkins and Robert Graves, middle school teachers such as Nancy Atwell, and many of the teachers associated with the National Writers Project surely shows that students can do quite well without that phase. Certainly, in college, students should have available to them all the techniques and strategies that professional writers are able to use. We, as writing teachers, should encourage them to take advantage of all those door-opening, inquiry-producing, generative tools—in the hope they’ll learn to say something deeply reflective, and perhaps original.


    1. Diana Hacker, who died in 2004, was the author of A Writer’s Reference and A Pocket Style Manual, both popular college handbooks published by Bedford/St. Martin’s.return to text

    2. My session at the website for Diana Hacker’s A Writer’s Reference took place October 5, 2002. The current site, for the sixth edition, is at http://bcs.bedfordstmartins.com/writersref6e/Player/Pages/Main.aspx, consulted July 7, 2007.return to text

    3. See for example Aaron 17; Hairston et al. 30; Hacker 13; Hodges et al. 50–51; and Faigley 51.return to text

    4. Googling the first sentence of this passage brings up forty university and commercial sites that use this exact sentence.return to text

    5. Erika Lindemann claims that “we can discover similarities between the five-paragraph theme . . . and formulas the classical rhetoricians proposed for structuring arguments” (38). However, she does not provide examples and I have not been able to establish this relationship.return to text

    6. I am grateful to Margaret Proctor for attending my conference session and later Page  62suggesting several new sources. She is directly interested in this topic, having written a book chapter on academic essays, “The Essay as a Literary and Academic Form.”return to text

    7. When I gave an earlier version of this paper at the Michigan College English Association Conference, respondents told me that ease in grading was their strongest motive for requiring thesis statements. If the thesis sets out a template, the grader needs only to judge how well the paper follows the template.return to text

    8. Lee’s argument in the article is that University of Michigan teachers shut out conservative views but consider any liberal opinion intelligent. I disagree.return to text

    9. Nancy Sommers explained this view in answer to a question I asked during a Sweetland Writing Center workshop at the University of Michigan on October 13, 2000.return to text

    Works Cited

    Aaron, Jane E. The Little, Brown Compact Handbook. 4th ed. New York: Longman, 2001.

    Bai, Matt. “The Framing Wars.” New York Times Magazine, July 17, 2005, 38–50.

    Baker, George Pierce. The Principles of Argumentation. Boston: Ginn and Company, 1925.

    Baldwin, Charles Sears. How to Write. New York: Macmillan, 1906.

    Bardeen, Charles William. A System of Rhetoric. 1884; Ann Arbor: Scholars’ Facsimiles & Reprints, 2002.

    Berlin, James A. Writing Instruction in Nineteenth-Century American Colleges. Carbondale: Southern Illinois University Press, 1984.

    Brooks, Cleanth. Fundamentals of Good Writing: A Handbook of Modern Rhetoric. New York: Harcourt, Brace and World, 1950.

    Connors, Robert J. Composition-Rhetoric: Backgrounds, Theory, and Pedagogy. Pittsburgh: University of Pittsburgh Press, 1997.

    Elbow, Peter. “Reflections on Academic Discourse: How It Relates to Freshmen and Colleagues.” College English 53, no. 2 (1991): 135–55.

    Faigley, Lester. The Penguin Handbook. New York: Pearson/Longman, 2005.

    Hacker, Diana. A Writer’s Reference. 5th ed. Boston: Bedford/St. Martin’s, 2003.

    Hairston, Maxine, et al. The Scott, Foresman Handbook for Writers. 5th ed. New York: Longman, 1999.

    Hart, James Morgan. A Handbook of English Composition. 1895. In The Origins of Composition Studies in the American College, 1875–1925: A Documentary History, ed. John C. Brereton, 451–55. Pittsburgh: University of Pittsburgh Press, 1995.

    Heilker, Paul. The Essay: Theory and Pedagogy for an Active Form. Urbana, IL: National Council of Teachers of English, 1996.

    Hodges, John C., et al. The Writer’s Harbrace Handbook. Fort Worth: Harcourt, 2001.

    Indiana University Writing Tutorial Services. “How to Write a Thesis Statement.” April 27, 2004. http://www.indiana.edu/~wts/pamphlets/thesis_statement.shtml, consulted September 10, 2004.

    Johnson, Harriet McBryde. “Unspeakable Conversations, or How I Spent One Day as a Token Cripple at Princeton University.” New York Times Magazine, February 16, 2003, 50–55+.

    Page  63

    Lee, D. C. “Five Simple Steps for Increasing Your GPA.” Michigan Daily, February 4, 2003, 4.

    Lindemann, Erika. A Rhetoric for Writing Teachers. 2nd ed. New York: Oxford University Press, 1987.

    MacEwan, Elias J. The Essentials of Argumentation. Boston: D. C. Heath, 1899.

    Masson, Rosaline. Use and Abuse of English: A Hand Book of Composition. Edinburgh: James Thin, 1900.

    Owens, Derek. Introduction to The Essay: Theory and Pedagogy for an Active Form, by Paul Heilker, ix–xx. Urbana, IL: National Council of Teachers of English, 1996.

    Perry, Frances M. An Introductory Course in Exposition. New York: American Book Company, 1908.

    Proctor, Margaret. “The Essay as a Literary and Academic Form: Closed Gate or Open Door.” In Literacy, Narrative, and Culture, ed. Jens Brockmeier, Min Wang, and David R. Olson, 170–83. London: Curzon, 2002.

    Quintilian. Institutes of Oratory, Book II. In The Rhetorical Tradition, ed. Patricia Bizzell and Bruce Herzberg, 297–334. Boston: Bedford, 1990.

    Ransom, John Crowe. A College Primer of Writing. New York: Henry Holt, 1943.

    Thorpe, Clarence Dewitt. College Composition. 3rd ed. New York: Harper and Brothers, 1939.

    Tresidder, Argus, Leland Schubert, and Charles W. Jones. Writing and Speaking. New York: Ronald Press Company, 1943.

    University of Illinois at Urbana-Champaign. “Developing a Thesis Statement.” Writing Workshop. http://www.english.uiuc.edu/cws/wworkshop/advice/developing_a_thesis.htm, consulted September 10, 2004.

    University of North Carolina Writing Center. “Constructing Thesis Statements.” October 17, 2000. http://staff.agu.edu.vn/tathong/Writing/UNCWritingCenterHandoutConstructingThesisStatements.htm, consulted September 10, 2004.

    Utter, Robert Palfrey. A Guide to Good English. New York: Harper and Brothers, 1914.

    W. W. Norton. “Thesis Statement Review.” Ace Writing Home Page.http://www.geocities.com/fifth_grade_tpes/thesis.html, consulted September 10, 2004.

    Page  64

    Cloud Gate: Challenging Reproducibility

    Jessica Litman argues that the basic reproductive unit of U.S. copyright law, the copy, “no longer serves our needs, and we should jettison it completely” (180). The challenge posed by modern technologies is central to her argument. Computers routinely produce “copies” of program code and data in use. Litman suggests that use—distinguished as commercial or noncommercial—would be a better way of organizing copyright legislation. But use is a complex and nuanced term, especially when applied to one ubiquitous reproductive technology, photography.

    Photography can be described as a group of technologies with multiple uses. Reproduction, in the sense of making copies, is only one aspect. For the average snapshooter, a photograph of a relative is not used to “copy” them, but rather to depict a likeness as a trigger for memories. Industrial uses of photography are different. Large-scale integrated circuits are fabricated using photographic technologies. Dark and light areas in a negative detect if a resistant mask should be deposited; the negative presents a mapped description of circuit pathways. Much like the copies found in computer program code, reproduction occurs without recognizable depiction. The photographic functions of reproduction, depiction, and detection are separate (Maynard, Engine and “Talbot’s Techonologies”). I agree with Litman’s contention that the term copy has lost its utility, not merely because of digital technology, but because of technology in the broadest sense. Distinguishing between description and depiction differentiates between the “copies” computers use and copies as reproductions. The transitory “copies” of data present in digital technology are sets of instructions describing a tangible or ephemeral object—music, pictures, and words. Like the photographic negatives used to manufacture integrated circuits or circuit boards, Page  65the copied data tells machines how to reproduce objects. It neither depicts, nor reproduces them.

    These subtle distinctions are present in U.S. copyright law, but only in regard to architecture. Descriptions of buildings, in the form of plans, can be copyrighted.[1] However, 17 U.S.C. §120(a) provides for a right of depiction:

    (a) Pictorial Representations Permitted.—The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.

    This right only extends to architecture; no other category in copyright law offers similar exclusions. The statute uses the term “representation” rather than depiction and only concerns pictorial representations. Nonetheless, U.S.C. 17 §120(a) differentiates between representation and reproduction and classifies photography among representative technologies.

    Photography’s depictive power is often conflated with the descriptiveness of its reproductions. Its ability to describe physical objects into two-dimensional projections is unparalleled. Photographs “tell” us things about the subject, but also provide raw material for imagination. A photograph is not a “copy” of its subject. I am sympathetic to Kendall L. Walton’s controversial assertion that depictive photographs are essentially fictions facilitating imagination. “To be a depiction is to have the function of serving as a prop in visual games of make believe” (Walton, Mimesis 296). A depiction does more than “copy” reality. Nonetheless, because of the power of its descriptions, photography is more suspect than painting or sketching. A person sketching a public landmark is less likely to be interrogated than a person with a camera. The right to photograph in public does not exist by statute, except in the case of architecture.

    Following a 2005 controversy regarding Anish Kapoor’s sculpture Cloud Gate, this chapter revisits the concept of reproducibility in art. Kapoor’s sculpture captured the imagination of Internet users who warned of a new prohibition of photography taking hold. Though Walter Benjamin’s “The Work of Art in the Age of Mechanical Reproduction” loses some of its prophetic luster in the aftermath of Cloud Gate, most of the mechanisms involved remain relevant. As a monument to capitalism and a “copyrightable” property, the sculpture provides a locus for discussing the right to photograph in public spaces and the use of media, both new and old.

    Page  66

    Cloud Gate

    Anish Kapoor’s Cloud Gate is a publicly visible sculpture located in Millennium Park, Chicago. The park was proposed in 1996 to occupy a twenty-four-acre site, with a budget of $150 million. Originally slated to open in 2000, the park debuted in mid-2004. Changes in the project necessitated the formation of a nonprofit corporation, Millennium Park Inc., headed by former Sara Lee CEO John Bryan. With corporate support, the budget grew to $475 million, received from public and private contributions.[2]Cloud Gate was made possible by an $11.5 million-dollar grant from SBC Telecommunications, and was incomplete when the park opened. Composed of 168 stainless steel plates, its welds had not been polished. Although the opening was premature, Kapoor remarked: “At least it’s there on the opening day, if only as a semi-finished object. One gets a sense of what it’s going to be” (Nance 64). Citizens and the media in Chicago designated the structure as “the bean” before it was properly titled. Kapoor was not amused:

    I’d just as happily do without a title, actually, except that it suggests a possibility of interpretation. In this case, the work is clearly reflecting what’s around it, picking up the Chicago horizon, the Chicago skyline—bringing it into itself, in a way. And it is a gate—a gate to Chicago, a poetic idea about the city it reflects. To call it something else damages the potential for a different way of thinking about the piece. (Nance 64)

    Titles, according to Kapoor, focus our thoughts on what the sculpture might depict. Measuring sixty-six feet long, thirty-three feet tall, and weighing 110 tons, Cloud Gate has a certain gravitas undercut by the diminutive title of “bean.” This early controversy makes it easier to differentiate between a descriptive label such as “the bean” and its depictive one, Cloud Gate. There is nothing aside from respect to prevent false labeling of the sculpture. There is no law against it. Richard Rezac, a sculptor and professor at the Art Institute of Chicago, remarked about the nickname: “I think it’s a trivialization of his efforts, his ideas and his basic intention.” Further, Rezac elaborates on an important aspect of the work: “The fact that it’s reflective, that it functions as a mirror, is the whole essence of the work” (Nance 64). Control over what depictions of Cloud Gate reflect has been a problem for both the sculptor and the City of Chicago.

    On January 27, 2005, the blog New (sub)Urbanism reported on an emerging story: professional photographer Warren Wimmer was stopped by a security guard from photographing Cloud Gate. Ben Joravsky’s article “The Page  67Bean Police” in the Chicago Reader was ground zero. Depictions of this event on the Internet caused a stir. BoingBoing picked up the story on February 6, and links multiplied. The City of Chicago vowed to drop its permit fee for professional photographers in Millennium Park on February 17. A follow-up article by Joravsky seemed to settle the issue on February 11. Another article in the Christian Science Monitor on March 30 went largely unnoticed by bloggers (Kleiman). The issues raised in this interface of media, technology, and public space deserve careful unpacking

    Reaction by the media had nothing to do with Cloud Gate as a work of art. “The Bean Police” discovered that professional photography in Millennium Park requires a permit. Wimmer, to avoid purchasing this permit, bribed a security guard. He was also warned not to sell any photographs of Cloud Gate. Joravsky’s research made it clear that the restrictions on photography in public parks applied not only to Cloud Gate, but to all professional photography in any city park. But his selective subtitle read: “The city’s charging some photographers hundreds of dollars to take pictures in Millennium Park,” highlighting Chicago’s newest attraction. Titling the follow-up article “Pork in the Park,” Joravsky declared a narrow field of interest. But the article details two distinct modes of regulation. First, “professional” photography requires a permit in public spaces. Second, photographs could not be sold without explicit permission. There was no mention of casual photography, and the ambiguous “some” of Joravsky’s initial subtitle promotes misreading.

    As the story proliferated on the Internet, the depiction of professional regulation was minimized. Instead, the focus was the threat of public space itself being copyrighted. The central commercial/noncommercial distinction was ignored. The City of Chicago attempted to differentiate between amateur and professional by identifying the type of equipment. Security guards were instructed to look for tripods and “professional looking” equipment or tripods. The purpose of both is to make more “exact” copies of a scene. The threat of exact copies of Kapoor’s sculpture might be a divisive point, but public reaction accentuated the power to prohibit, rather than the separation of commercial and noncommercial behaviors. David Bollier expressed this imagined crisis by comparing the chain of events surrounding Cloud Gate to an earlier controversy blogged by Lawrence Lessig—a prohibition on photography in Starbucks Cafés. While the response on the Internet is analogous, the core situations are not. The interior of a Starbucks franchise is arguably a private space regulated through the policies of the franchise or the owner.[3] Casinos in Las Vegas regulate public photography. Page  68The overriding issue is an assumed privacy right for their patrons. Family-oriented casinos encourage photography, while more upscale venues discourage it.

    Millennium Park is a public space. Nonetheless, there are statutory rights that control representations of “public” presences—be they buildings, sculptures, or images of people in public places. There is no general statutory right to photograph in public; these rights are derived from common-law precedents. Lessig has argued elsewhere that these precedents accentuate the relationship between freedom from regulation and technological innovation (345). However, the right of the public to represent, reproduce, or transmit iconic presences is shaky. Icons like Cloud Gate reflect cultural values, and regulating the ability of culture to reproduce itself has far-reaching implications beyond technological innovation. Lessig and others have also argued that excessive regulation of cultural products might mean the death of culture. But such regulations grow from copyright’s first mandate—to promote progress in the useful arts. According to Lessig, Starbucks prohibits photography on the grounds that it reproduces their floor plan in a transmissible form, promoting infringement of their copyrights. The casino example is not a matter of copyright at all; photography can be prohibited because it infringes on privacy rights. In matters of public space, multiple rights are involved.

    In response to Starbucks’ prohibition, Lessig encouraged his readers to practice civil disobedience—hundreds of readers responded by posting photographs taken in Starbucks. Cory Doctorow of BoingBoing responded in kind to the “crisis” of Cloud Gate by urging readers to take photographs of Cloud Gate and upload them. The response was disappointing. New photographs of the sculpture were impossible; Cloud Gate was draped in a tent in late January to polish its seams. Moreover, amateur photography was never prohibited, and the presence of photographs of the sculpture online was a nonissue. A webcam operated by US Equity has been gradually accumulating a public Internet archive of photos of the sculpture and adjoining restaurant since March 5, 2004.[4] The transformation of Cloud Gate from a work of art into a politicized work of art negotiates the boundaries of both legal and aesthetic discourse.

    These boundaries were more specifically addressed by the Christian Science Monitor story “Who Owns Public Art?” Bob Horsch, who had been selling postcards and calendars of the sculpture from his gallery, was warned by city representatives to cease selling these “copies.” Horsch was shocked: “We’ve been representing Chicago for 32 years. We’ve put up with the dirt Page  69for six years and now we can’t take a picture of what’s across the street?” (Kleiman 15). What emerges from this mainstream article is a more accurate depiction. The prohibition the City of Chicago seeks to enforce is the commercial exploitation of its properties through “copies.” The copyrights of the objects in Millennium Park have been transferred to the City of Chicago, which claims an exclusive right to commercial exploitation. Photography by the general public, considered to fall within the realm of “fair use,” is exempt. What is at stake for Horsch is the ability to exploit public landmarks for financial gain.

    The complexity of the situation is obscured by fear of the prohibition of photography in public spaces. Can objects be photographed freely in public space? The answer is generally yes. Can these photographs be reproduced openly for profit? The answer to that question is frequently no. Walter Benjamin observed:

    The increasing proletarianization of modern man and the increasing formation of masses are two sides of the same process. Fascism attempts to organize the newly proletarianized masses while leaving intact the property relations which they strive to abolish. It sees its salvation in granting expression to the masses—but on no account granting them rights. (120–21)

    Cloud Gate deserves deeper contemplation as an object that challenges the “copy” as a measure of value. A work of art escapes being classed as a useful article—unlike buildings, the prohibition of salable photographic reproductions of public sculpture rests on solid ground. Expression of the sculpture’s presence in the form of casual snapshots is granted, but a viewer has no right to profit.


    Are copies of Cloud Gate even possible? Kapoor’s sculpture seems to embody Benjamin’s concept of the irreproducible aura. “The Work of Art in the Age of Mechanical Reproduction,” first available in English translation in the 1968 compilation Illuminations, has enjoyed critical success as a reflection on the importance of art in dangerous political times. Recent translations suggest that the original title is incorrect. An alternate title, “The Work of Art in the Age of Its Technological Reproducibility,” is a better fit. Rather than the immutable “work of art” thrust into an age of reproduction, the possessive pronoun more accurately reflects the presence of art Page  70in an age where it is not only subject to reproduction, but designed for reproducibility. The benchmark “new” art medium for Benjamin was film; the classic “old” medium was sculpture. Benjamin predicted that sculpture would inevitably decline in the age of composite arts like film, because they forcefully renounce all concept of eternal value in favor of the potential for endless improvement. The effect of “eternal value” is aura, “a strange tissue of space and time: the apparition of a distance, however near it may be” (105). The social reason for aura’s decay is “the desire of the masses to ‘get closer’ to things spatially and humanly, and their equally passionate concern for overcoming each thing’s uniqueness by assimilating it as a reproduction” (105). When Millennium Park opened, no officially sanctioned reproductions were available. Bob Horsch capitalized on the desire to possess reproductions by providing calendars, refrigerator magnets, and posters.[5] Sales were only moderate, perhaps because Cloud Gate proved uniquely resistant to assimilation.

    Cloud Gate distorts the skyline of Chicago, rendering it strange and distant while reflecting the city and its spectators. The initial public response to the sculpture was a rush to touch it and to confront their reflections in it. The “strange tissue of space and time” that Benjamin connects with the aura of a unique work of art is an essential, if not literal, aspect of Kapoor’s work. As Blair Kamin described it, “The sculpture grabs you with its fun-house distortion game, then holds you, mystifies you, and eventually delights you with its sophisticated play of opposites” (10). Its monumental presence is deeply symbolic. Kapoor sees his work as an intersection between sculpture and architecture:

    My inspiration as an artist from as early as I can remember has been symbolic architecture. Perhaps some of the most deeply, philosophically coherent objects of all time are buildings. . . . Whether it’s the Jantar Mantar in India, or early mosques like the one at Samara, Iraq, or the pyramids—there are two things that come together. One is the ritual procession that those structures seem to describe, evoke and even prescribe. And the other is that they define themselves with a certain self-evident gestalt. What they seem to say is that if you look at the object from here, or if you look at the object from there, it’s the same object. (Ellias 1)

    Cloud Gate invites a ritual procession, while granting spectators a unique view of themselves reflected inside the work. Kapoor’s work illuminates, Page  71retrospectively, the blindness and insight in “The Work of Art in the Age of Its Technological Reproducibility.” Although Benjamin failed to grant continuing relevance to sculptures, he acknowledged the importance of architecture as the oldest and most fundamental of the arts: “Its history is longer than that of any other art, and its effect must be recognized in any attempt to account for the relationship of the masses to a work of art” (120). Monuments rest in an uneasy space between sculpture and architecture.

    Nonetheless, Benjamin’s essay gives the preeminent position to film. Distribution of film is enforced, because without such distribution the costs of production would be prohibitive. The countervailing impulses of private enterprise and public consumption require careful negotiations. Film came of age during depressions affecting the global economy. Benjamin observes:

    The same disorders which lead, in the world at large, to an attempt to maintain existing property relations by brute force induced film capital, under the threats of crisis, to speed up the development of sound films. The introduction brought temporary relief, not only because sound film attracted the masses back into the cinema but also because it attracted new capital from the electricity industry with that of film. Thus, considered from the outside, sound film promoted national interests; but seen from the inside, it helped internationalize film production even more than before. (123)

    The historic situation facing film reflects the recurrent paradox of public art. Public art requires the acquisition of capital, either through appeal to profit or the support of a nation/state. Cloud Gate was funded by a grant from a telecommunications company, but the line between nation/state and corporate support is thin. The city seeks to recover the cost of continued maintenance of the park through use and parking fees. On one level concerns are local to the city/state—maintenance of their property. But the dramatic result created through an international collaboration with an Indian sculptor forces us to reevaluate our perception of public art.

    It is not surprising that those who funded the project have an interest in maintaining conventional property relations to recover their investment. It is also not surprising that taxpayers feel a sense of “ownership” of public works. Unlike a film, a public sculpture has a tangible presence. It has value not only in its exhibition, but also in its possession. The question of who owns Cloud Gate—the people of Chicago, the development corporation, or the sculptor who created it—is complex. The federal government denies copyright protection to works created by government employees, but copyright Page  72protection is granted to works created on contract, that is, “works for hire.” States vary in their position on works for hire, so although a public nonprofit development corporation contracted it, it is not automatically “public property.” The power to grant copyright to public works is divided state by state. The rights associated with Millennium Park are hopelessly fractured among multiple contractors with exploitation rights, state and city governments, as well as the creative rights of the artists themselves.

    Benjamin’s benchmark of democratic art, film, highlights a shift from cult value, the value of ritual possession, to that of exhibition value. Generally speaking, the City of Chicago proposes to pay for construction and upkeep of the park through fees, including permits for professional photography, parking fees, and event fees. These fees rely on a cultish attraction to the site. The photographer’s use fees that triggered the Cloud Gate controversy perhaps reflect its cult value, but more importantly they signal utility. Useful articles cannot be protected under U.S. copyright.

    As a work of art that weighs 110 tons produced at a cost of $11.5 million, Cloud Gate is not easily copied. But exhibition rights—the right to reproduce reproductions—are separate. Sculpture, though it is one of the oldest reproducible art forms, cannot be reproduced without permission of the creators or their assigns under U.S. copyright law. However, because of its relationship to architectural monuments and its visibility in public space, the status of Cloud Gate is complex.

    Rights and Responsibilities

    Photographing in public spaces always balances public and private rights and responsibilities. Subject matter is generally the litmus test for reproducibility. For example, individuals are assumed to have rights of privacy that supersede rights of publicity. The level of protection afforded individuals differs with their status as public or private figures. Because celebrities are deemed newsworthy, their rights diminish. A general right to photograph people in public spaces is assumed, but there is no right to exploit their images commercially. However, newsworthy images can be exploited as fair use.[6] Significantly, this assumed fair use includes the right to reproduce and sell photographs with newsworthy content for profit. Due to the reflective nature of Cloud Gate, if the skyline of Chicago is identified as newsworthy, photographs of the sculpture (which automatically reproduce the skyline) might be distributed under fair use. Entrepreneurs like Horsch would merely be distributing newsworthy content.

    Page  73

    However, the case most applicable to Cloud Gate is Hart v. Sampley (1992). It centers on Fredrick E. Hart’s sculpture The Three Servicemen, part of the Vietnam Veterans Memorial in Washington D.C. The defendants sold T-shirts and photographs of the sculpture without authorization. In court they argued that the sculpture constituted a useful article “that cannot be separated from the functional purpose of honoring Vietnam Veterans.” Under this lens, all monumental works of art would be exempt. The court did not agree. Their reasoning was sound—if use were defined in this manner, most works of art might be termed exempt. The next argument was that the sculpture was located “in an ordinarily visible and public place,” referencing 17 U.S. Code, Section 120(a), which exempts pictorial representation of architectural works. This was rejected on technical grounds, not because The Three Serviceman is not a work of architecture, but because of timing. The sculpture was unveiled on November 9, 1984, and Section 120(a) did not take effect until December 1, 1990. The defendants were prohibited from reproducing the sculpture for profit.

    The invocation of Section 120(a) is suggestive—consideration of monumental works as architecture rather than sculpture seems consistent with their public use. Because it was created after 1991, a suit regarding the sale of photographs of Cloud Gate would clarify the rights and responsibilities regarding public monuments. As Melissa L. Mathis suggests:

    While the utilitarian nature of architectural structures was the historical justification for a denial of copyright protection, this rationale does not apply to nonfunctional monumental works. Nonetheless, monuments are perhaps our most cherished works of public art. There is a unique reciprocity in such works that is absent from the other fine arts: they exist for the public and by the public. This relationship is one that must be recognized by our copyright law. It is also, however, one that must be understood by the authors of such works. (628)

    The status of professional (for profit) photographs of Cloud Gate can be established as fair use, but there are alternatives.

    Reproductions of copyrighted works can also be treated as “derivative works.” A pair of recent cases suggests dubious stature for photographs. In Ets-Hokin v. Sky Spirits, Inc, 225 F.3d 1068 (9th Cir. 2000), the court held that a commercial photograph created for an advertisement was not derivative of its subject. However, in this case, the subject—a vodka bottle—was not a copyrightable work. In a later case involving the photography of ornamental picture frames for a catalogue, SHL Imaging, Inc, v. Artisan Page  74House, Inc., 117 F. Supp. 2d 301 (S.D.N.Y 2000), the court sought to push this ruling further:

    While the Ets-Hokin court correctly noted that a derivative work must be based on a “preexisting work,” and that the term “work” refers to a “work of authorship” as set forth in 17 U.S.C. §102(a), it failed to appreciate that any derivative work must recast, transform or adopt [sic] the authorship contained in the preexisting work. A photograph of Jeff Koon’s “Puppy” sculpture in Manhattan’s Rockefeller Center, merely depicts that sculpture; it does not recast, transform, or adapt Koons’ sculptural authorship. In short, the authorship of the photographic work is entirely different and separate from the authorship of the sculpture. (Cohen 114)

    In the language chosen by the court, a photograph merely depicts rather than copies preexisting work. Approached as the allocation of authorial rights, this ruling suggests that photographing a sculpture embedded in public surroundings creates a new work. Photographs are neither “copies” nor derivative works.

    What use do photographs of public monuments serve? For Bob Horsch, they provide a substantial part of his income. Nevertheless, while his photographs of Wrigley Field and other Chicago landmarks sold briskly, photographs of Cloud Gate had to be marked down. A few moments observing in Millennium Park provide an answer. Visitors prefer to photograph their own reflections, to image and imagine themselves in Cloud Gate.


    1. Architecture, classed as a useful article, has received limited protection under U.S. copyright law. Protection for architectural plans was only added with the 1976 Copyright Act, and §120 was added in 1990 to increase U.S. compliance with the Berne Convention.return to text

    2. For discussion of the background, see Hubbard; Jones; and Kamin.return to text

    3. Curiously, however, Starbucks would be considered a public space if copyrighted music or videotapes were played. When determining the criteria for public performance §101(1) declares that “any place where a substantial number of persons outside a normal circle of family and its social acquaintances” might hear is “public.”return to text

    4. Accessible at http://www.usequities.com/MPark.htm.return to text

    5. Bob Horsch, personal interview, September 24, 2005.return to text

    6. A 2004 case regarding photographs of Barbra Streisand’s home on the California coast is instructive. Though 17 U.S.C. §120 grants the right to photograph architecture visible from public locations, Streisand’s suit against photographer Kenneth Page  75Adelman argued that his aerial photographs from public airspace were an invasion of privacy. The suit was summarily dismissed on the grounds that the photographs, freely sold on the Internet, were newsworthy and therefore fair use. The news interest was not in Streisand’s house, but the coastline underneath it. Full court transcripts and press coverage are available at California Coastal Records Project, http://www.californiacoastline.org/streisand/lawsuit.html .return to text

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    Bollier, David. “No Joke: Copyright Fees Required for Taking Photos in Chicago Parks.” OnTheCommons.org, February 4, 2005. http://onthecommons.org/node/499, consulted May 2, 2005.

    California Coastal Records Project. “Barbra Streisand Sues to Suppress Free Speech Protection for Widely Acclaimed Website.” California Coastal Records Project, May 29, 2004. http://www.californiacoastline.org/streisand/lawsuit.html, consulted May 2, 2005.

    Cohen, Julie E. Copyright in a Global Information Economy. New York: Aspen Law and Business, 2002.

    Doctorow, Cory. “Chicago’s Public Sculpture Can’t Be Photographed by the Public.” BoingBoing, February 6, 2005. http://www.boingboing.net/2005/02/06/chicagos_public_scul.html, consulted May 2, 2005.

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