How Blogs Impact Legal Discourse

Looks like an interesting talk:

The Center for Internet and Society and The Stanford Law and Technology Association

present

CIS/SLATA Panel: How Blogs Impact Legal Discourse
with
Moderator, Jonathan Zittrain
Monday, November 5, 2007
12:45-2:00
Room 280B
Free and Open to the public (no rsvp required)
Lunch will be served
http://cyberlaw.stanford.edu/node/5603

Blogging about legal issues is a growing phenomena and a wholly new format for legal dialog and exchange. The panel will investigate and discuss how legal discourse is impacted by the advent and growth in blogging. There is an open call for questions to be presented to the panel, please email vcs@stanford.edu.

Panel Members and Bios:

Ann Althouse: Ann Althouse is the Robert W. & Irma M. Arthur-Bascom Professor at the University of Wisconsin Law School and currently a Visiting Professor at Brooklyn Law School. She teaches and writes about constitutional law and federal courts. Since January 2004, she's been blogging prolifically at Althouse althouse.blogspot.com which receives over 20,000 page views a day.

David Friedman: David Friedman is professor of Law at Santa Clara Law School. He has a bachelor's degree in chemistry and physics (Harvard 1965), a PhD in theoretical physics (Chicago 1971), and has taught and published extensively in economics and law, two fields in neither of which he holds any degrees or has ever taken a course for credit. He has had a web page for more than ten years, currently averaging more than three thousand visitors a day, and a blog, Ideas, since early 2006. His first book, The Machinery of Freedom, was published in 1973 and is still in print. His most recent academic book, Law's Order, was published with a system of virtual footnotes, icons in the margin signalling links to further information in the webbed version of the book.

Eric Goldman: Eric Goldman is an Assistant Professor of Law and Director of the High Tech Law Institute at Santa Clara University School of Law. He previously was a professor at Marquette University Law School; before that, he practiced Internet law for 8 years in the Silicon Valley. He teaches Cyberspace Law and Intellectual Property, and his research focuses on Internet and marketing law topics such as search engines, spam and adware. Since 2005, he has operated two blogs: the Technology & Marketing Law Blog http://blog.ericgoldman.org and Goldman's Observations: http://blog.ericgoldman.org/personal

Joseph Gratz: Joe Gratz is an associate with the San Francisco litigation firm of Keker & Van Nest LLP, and has been blogging since 2003 at www.joegratz.net. He graduated Phi Beta Kappa from the University of Wisconsin at Madison in 2002 with a Bachelor of Arts degree in theatre and English. He received his J.D. cum laude in 2005 from the University of Minnesota Law School, where he served as articles editor of the Minnesota Journal of Law, Science, and Technology and student managing editor of Constitutional Commentary. Following law school, Joe clerked for the Honorable John T. Noonan, Jr. of the United States Court of Appeals for the Ninth Circuit. Joe is co-chair of the American Bar Association Section of Intellectual Property Law Special Committee on the Digital Millennium Copyright Act and a member of the IP Section's Amicus Committee.

Larry Solum: Lawrence B. Solum is the John E. Cribbet Professor of Law at the University of Illinois, where he teaches philosophy of law, civil procedure, and constitutional law. He has written "Blogging and the Transformation of Legal Scholarship." A graduate of UCLA and Harvard Law School, he has written extensively on procedure, law and technology, constitutional theory, and jurisprudence. His current research includes work on virtue jurisprudence and legal formalism. Solum edits Legal Theory Blog. His articles have appeared in numerous scholarly journals, including recently articles in the American Journal of Jurisprudence, Cornell Law Review, the Harvard Law Review, Metaphilosophy, the Michigan Law Review, Northwestern Law Review, the University of Chicago Law Review, and the Virginia Law Review. He has served as Chair of the Sections on Constitutional Law, Interpretation,
Jurisprudence, and Scholarship of the Association of American Law Schools.

Survey Plan

While I am growing tired of sending emails to people, asking them to take the survey, I decided that this weekend I will send out reminders to pop 1 and pop 2. I can't send them all out at once, but I can send them out a few at a time.

The cool thing about using gmail, is because of the labeling feature, as soon as I send a reminder I can mark it as "reminder sent." Then I don't accidentally send two reminders.

The other cool thing is that if anyone sent me a response on the initial request, like that guy who asked me out to lunch, I can delete his email from the reminder. They are all compiled in one post on gmail, and I can easily see who replied - it creates kind of like a "thread" of emails on top of each other.

The bad thing about gmail is that it doesn't let me send like a million emails in one day. Bummer!

Free labor calculation. 325 people spent 20 minutes. That's like 108 free man/woman work hours. I have a HUGE responsibility now to do something useful and important with the data.

Survey Results Monday October 29, 2007

Pop 1 = 65
Pop 2 = 121
Pop 3 = 166

Total = 352

Freedom of Speech

I carefully read the Garcetti opinion and things are worse than I anticipated. The supreme court has separated out our role as "citizen" and our role as "employee," stating that as an employee, we have no first amendment protection in speech that's part of our job duties.

The problem is, for example, in our faculty contract, it was beneficial to have an extremely broad scope on what is considered our duties, because then it becomes clear we are always working. Since we have a number calculations for hours per week, it was to our benefit to negotiate for a broad job description. Paradoxically, because of this case holding, which came down after our contract was sealed, items in your job description are not protected by the first amendment, i.e. conference presentations, articles, community service! The opinion states that teachers are a special case, and the court won't speak on applicability of its holding to teachers. Yet, it appears in the lower court interpretations, teachers are getting caught up in this.

This is really serious.

This is the *most* troubling supreme court I've read in a long, long time. And no one seems to know about it around here . . .

"Academic Freedom" is Annihilated in the 21st Century

This is the next article that I am going to write. I am thinking about it but haven't written it out yet.

Academic Freedom as a "legal" concept doesn't really exist other than within the protections we are provided under the first amendment -- that amendment gives us protection against state action which circumscribes our ability to speak - there's always a balancing test going on in these cases. This is something I wrote about for the article in Technical Communication -- however in that case I didn't talk about "Academic Freedom" because I was addressing an audience that cared more about work place expression - "speech" at work.

But, I have recently become of aware of how a 2006 supreme court opinion is playing out and the news is not good. In fact, I find the news terrifying.

The case is Garcetti v. Ceballos, ___US___, 126 SCt 1951, 164 LEd2d 689 (2006). It was decided May 30, 2006.

http://en.wikipedia.org/wiki/Garcetti_v._Ceballos

http://www.supremecourtus.gov/opinions/05pdf/04-473.pdf

OK, and T. Herrington wrote an article in Computers and Composition some years ago connecting first amendment issues with copyright issues -- I mean it is a matter of how the law stops us from self-expressing, I suppose.

But, in this case, the Supreme Court stated that when a public employee is acting within their "official duties" then first amendment protection does not apply, i.e. your employer can dictate what you can and cannot say. This is alarming when one considers that teaching in the classroom is indeed our "official duty."

At first (here I mention the 6th circuit because Michigan is in the 6th circuit and I live and work in Michigan), the 6th circuit seemed to be interpreting Garcetti narrowly. What I mean by "narrowly" is that subsequent interpretations severely limit the application of the Garcetti holding.

I have a list of cases here that interpreted the case, but I won't enumerate all of them. But, in Van Compernolle v. City of Zeeland, 2007 WL 2015985 (CA6, July 9, 2007), a police officer was fired due to union related speech. The court stated that Garcetti didn't apply because Garcetti "dealt only with speech that is required as part of the employee's duties, as opposed to speech in the course of employment generally, and is thus consistent with our cases holding that speech in the course of employment may be entitled to First Amendment protection."

Subsequently, Garcetti is now being interpreted more broadly. Within the year (2007), the court has held the following actions to be speech unprotected by the first amendment:
1. After hiring a consultant firm to explore the morale of the work force, one employee was interviewed and described her trials and tribulations at work. She was fired for her speech.
2. An employee was fired for speech during trial -- if speech is part of the employee's duties, it is not protected speech.
3. A WEMU radio announcer's firing due to speech during a broadcast was not protected because the speech was part of his duties.
4. A public agency bookkeeper questioned the legality of certain expenditures -- she was fired and her speech was held to be not protected by the first amendment.

Anyway, I'm not going into anymore details now -- but this is the setting currently for "digital speech." Digital speech hasn't been litigated yet in this context, as far as I know.

A few hours after sending out the reminder for pop 3

Pop 3: 132

Pop 2: 120

Pop 1: 65

Total: 317

Note that I could not send out all the reminders because my gmail locked me out. So, I have to wait 24 hours from about 5:30 pm today in order to send more of the reminders.

I also need to back up my survey data.

Study posted on a listserv that talks about doing national online research

Giguette, M.S., and Davis, K.C. (2005). Challenges for conducting a computing sciences national study. ASEE/IEEE Frontiers in Education Conference.

Writing about your N when your N is this and that

Below is a smart way that a study was written up in an article. The article is
by Dawn Poole
A study of beliefs and behaviors regarding digital technology
New Media Society 2007; 9; 771
QUOTE FROM ARTICLE (here's how they talked about the N)

Sample
The survey was administered to Central California students in various courses at junior high (grades 7–8), high school (grades 9–12) and college levels from November 2002 to January 2003. A total of 453 surveys were used in the data analysis. Some of the surveys contained incomplete demographic data or incomplete responses on the Likert scale survey items; therefore, the reported results total less than 453 in several tables.

ATTW Proposal, 2008: Ethos, pathos, logos, kairos: Rhetorical strategies in digital survey research

I examine the challenges and affordances of conducting programmatic research virtually, and the role of rhetoric in executing such studies. As part of a two-year study on rhetorical invention in copyright imbued environments, I examined knowledge and understanding of US copyright law among digital writers (both students and teachers) in US technical/professional writing programs. The study’s first phase included administering an online survey to a randomly selected population of such programs. I outline three different rhetorical strategies used when administering this survey to different but equivalent populations and the widely differing responses. Further, I discuss ironic glimmerings of resistance-to-digital-research in TPW– as the field simultaneously holds itself out to value knowledge production in the new economy. At issue are the methodological problems arising when a field fails to see itself as a “community.”

I end the presentation by offering a heuristic to facilitate successful online programmatic research. Finally, I imagine a digital architecture that breaks out of content silo effects of “membership lists” posted to various websites. Such architecture might engender online collaboration, distributed models of work-research, and cross-programmatic/cross-global communication such that the field of TPW could self-reflect, model the processes it upholds, and gain disciplinary strength through cohesion.

As part of a two-year study on rhetorical invention in copyright imbued environments, a survey was administered to randomly selected TPW programs examining knowledge and understanding of US copyright law among digital writers. The effectiveness of differing rhetorical strategies is discussed when conducting online survey research. A heuristic is offered to facilitate success in these types of studies.

Survey Response Rates 10-29-2007

I'm about to send out reminders to population 3. Pop 3 is the one where I sent the requests directly to students, if their email addresses were available. I also sent the request to take the survey directly to faculty.

Pop 3: 127

Pop 2: 120

Pop 1: 65

Total: 312

As noted, pop 1 has suffered the most. This is the population where I contacted program directors with a really long, 800 word request to disseminate the survey.

I would really like to have at least 100 more persons take the survey.

So here I go sending out reminders.

Survey Response Rates 10-15-2007

I am going to go backtrack onto population one. This was the population where I only contacted program directors -- a very very ineffective method.

Pop1 = 22

Pop2 = 43 [in pop 2 I sent the link, but still to program directors]

Pop3 = 106 [contacted students and teachers directly, included link]

Total = 171

Now I'm going to backtrack again and send to students where available in pop 1. We will watch the numbers.

I feel very guilty about the time here. Multiply this many responses by 30 minutes and that's how much time people have given for the purposes of this research. You see now I have a debt to society to do something constructive with this data. It is a moral duty.

Rejecting the Gestalt View of "Tacit Knowledge"

The difference between how Polanyi talks about tacit knowledge, and the way Vygotsky talks about internalization is this, I think. Vygotsky rejects the Gestalt view of development because this view sees development and learning as concentric circles, with learning being the smaller circle inside development. Learning takes place and informs development in really complicated ways that can never be truly deciphered. I think from what I've read of Polanyi so far, he would agree with this Gestalt view.

Vygotsky on the other hand, sees the relationship between learning and development differently. Learning is ahead of development and pulls development up. So, people grow into the intellectual life around them. This also explains his theory of the zone of proximal development. You have your actual development (independent problem solving), and you have your zone of proximate development (what you can do when being mentored by others, or when working collaboratively).

Contrast this with (Binet??'s) view or other psychologists, that you shouldn't try to teach someone something until they are developmentally ready. I detest this view, frankly. When I am in a conversation and someone says: "Well that's developmental" -- I interpret that to mean they are saying the student can't learn. That the student isn't ready to learn until something else out of the control of learning takes place. I disagree with this.

On the other hand, the really nasty downside to my view is that smart teachers end up with smart students at the end of the semester. Period. This sounds kind of arrogant, but I think it is true. Teachers who are inventional and innovative have students who are the same. Teachers who are prescriptive and circumscribe what students are allowed to do, have students who tame down everything they do. These students learn less in the course of a 16 week semester.

In my study, I am looking at "tacit knowledge" but more as internalization than the way that Polanyi describes it.

Biblical Interpretation Leads to Firing of Iowa Instructor

. . . from the associated press: "A college instructor in Red Oak claims he was fired after he told his students that the biblical story of Adam and Eve is a fairy tale and should not be interpreted literally.

DES MOINES, Iowa (AP) — A college instructor in Red Oak claims he was fired after he told his students that the biblical story of Adam and Eve is a fairy tale and should not be interpreted literally.

Steve Bitterman, 60, said officials at Southwestern Community College sided with a handful of students who threatened legal action over his remarks in a western civilization class."

It seems to me that community colleges in general are more conservative than the four year institutions -- probably because community colleges derive more directly from K-12. Free speech is alway an issue.

Angela Shetler of the American Cancer Society Speaks on Lansing Community College

Angela spoke at my tech writ. 124 class and here's my review:

Just wanted to say that Angela Shetler came and presented to my tech
writing class today and she did a spectacular job. The presentation she did for my class was "Technical Communication and the American Cancer Society." She talked about the rhetorical decisions that have to go into the communication practices of the organization. Her power point was full of interesting visuals, and to say the truth, you might need a dry tissue available for part
of the presentation. My students loved it.

The one thing that I found especially interesting, was their new "story" initiative. They are collecting personal narratives from cancer survivors and their caretakers, and creating secondary documents from these, including multimedia and web texts. They have a
huge bus that is going around the U.S. collecting these stories (plus they have several kinds of blog spaces) -- and they are finding this kind of appeal to be extremely effective (I mean you think about the value of quantitative research on health issues -- but it might be that to save lives you *have* to turn to narrative).

Anyway, she discussed this type of document created where several people are interviewed, and then their interviews are shaped, fashioned, edited, and presented (repurposed) for various audiences. This was really interesting. (I decided it's called a "Story-based Technical Report" or something--a new genre).

And, did you know that the top 15th most influential policy maker on capital hill is the American Cancer Society, or that 42 Nobel peace prize winners were funded by same, or that they frequently hire tech writers locally?

So, that's what I want you to know. Hers was the most engaging presentation I've heard for a long time where it made me think something I am doing might actually matter.

Will Copyright Laws Change due to Web 3.0 and data clouds???

This was a question I received recently and here is my response:

Regarding your question -- I think the copyright laws at both the U.S. and International level resist change - and if web 3.0 is developing as you say, I predict attempts will be made to stop it via the law - that is, there's lots of stakeholders with great economic interest in controlling information, and until the balance of stakeholders shifts from those who want to lock up information, to those who don't - I think the law will work very hard to maintain the status quo. For example, the DMCA was enacted in order to prevent folks from using technology to gain content -- so the technology use itself was blocked with a law.

If economic stakeholders who control the technology that encourages sharing of information gain the upper hand, then the laws might change. Generally, the law comes down on the side of whoever has the most money. I know this sounds cynical, but the US Sony case, back in
the 1980's held that taping TV shows on a VCR was "fair use." Yet in the last couple years, music file sharing and copying has been deemed illegal - not fair use. Back in the 1980's -- Sony and the VCR manufacturers had the economic upper hand. Nowadays, it is the music publishers, producers, and distributors that have the upper hand, not the distributors of filesharing software.

However, all that said, I think this web 3.0 you mention with change the culture the same way web 2.0 is changing it. "Remix" and transparency have become norms in so many other areas of life other than on the web. For example, our new employment contract at LCC posits administration and faculty on equal footing - wants to erase the top down culture we have traditionally had here -- this reminds me of folksonomy - of user participatory web activities, or wikipedia -- places were all can participate. I don't know if I said this very well, but web 2.0 is creating new ways of thinking that are reflected in places outside the WWW. It's changing the way we think. You have to think back to Walter Ong's argument about how writing re-structures consciousness, and then say, not so much how computers re-structure
consciousness, but how networked computers do.

So, the bigger question will be how will web 3.0 change our culture. First the culture has to change, then the laws change. Mostly but not always it is like this. [Not sure if this is true?? But maybe it is -- afterall, while Brown v. Board of Education changed things on the surface -- because some cultural shifts have not taken place, other changes that were anticipated did not take place -- you can't just make a law and expect people to blindly obey it - that's where agency comes in -- the agency of the law and the agency of the people].

That was one hellava long winded answer.

Trends in Survey Methods

The first survey I sent out to pop #1 - the 800 word request to program directors--
9/15/2007 N=22

The second survey I sent out to pop #2 - the 200 word request to program directors--
9/25/2007 N= 37

The third survey I sent out to pop #3 -- students where available and teachers -- so far I've only tapped into the PhD population--Note the ethos here was that I stated I was a "student." In the first two requests the ethos was that I was a "WIDE/MSU Researcher" with a capital R.
10/9/2007 N=29

DeJoy's argument & my study population

One of the issues that cropped up during my prospectus defense, was how I can justify, or talk about, teachers and students, both, as participants in the study. I think it was Jeff that suggested they are both "writers," and I might talk about it that way. However, I have read DeJoy's book, _Process This_, a couple times. She writes about students-as-other, and suggests that the field will be benefited by inviting students into the field as contributors.

It struck me that her argument provides a foundation for seeing the teachers and students together in one group - that of writers. My research isn't focusing on the "studentness" of rhetorical invention, or of thinking about copyright. Instead, I am interested in writers-in-educational-environments as a group. I limited this group by focusing on TPW programs and writing majors. Vygotsky makes no argument that the thinking processes of students are different than that of teachers. Learning is learning regardless of who is doing it.

I think that politically, bunching together students and teachers as participants, as writers, works fine, and supports DeJoy's view of what we should be doing in composition studies. For the interviews, I plan on interviewing students simply because they are probably easier to schedule time with, and because they are more likely to be working on something at the current moment. They are more likely to be on the cutting edge of using the affordances of digital technologies to write than are their teachers.

One other thing -- I agree with DeJoy's main points, as far as I understand them now, but, I don't agree that her vision is something other than a traditional avenue for the professionalization of the field. Including students as members of the profession, or field, is a traditional way of indoctrinating them into a discipline. For example, at the law school, students serve as editors of law journals. That shape that important discourse in the field. Students also write for law journals -- are even expected to publish that way. Of course, graduate students in various disciplines are encouraged to participate in the discourse of the field. I guess the difference is that DeJoy suggests this kind of inclusion should take place at the undergraduate level. This is more revolutionary.

Why Ong might have been wrong about orality

On the way home from Chicago, the TYCA-Midwest conference, I listened to a special on public radio about deaf culture. Deaf parents were stating, over and over again, how when they found out a new baby was deaf, they were overjoyed. If the baby could hear, they were very worried and sad, wondering how the baby would fit in the family, since, when you are deaf you develop alternative communication means that are very effective.

So, this idea that orality is "natural" - I have never bought that, or I have been troubled by it. Orality is only "natural" if one is born with the technology of the ear. Polanyi writes about how we kind of learn that arms and legs are "parts of us," and so they become integrated into our existence. "In this sense I should say that an object is transformed into a tool by a purposive effort envisaging an operational field in respect of which the object guided by our efforts shall function as an extension of our body" (p. 60). He is defining "tool." So he says, if results are achieved through an object which were not intended, then that object is not instrumental. So, if I were to send a personal email intended for my spouse, to a professional list serve, then in that case the computer I'm using is not instrumental, according to Polanyi's definition. His example is, if a rat presses a lever by accident and a food pellet is released, that is not tool use. But once the rat learns that by pressing the lever she will get a food pellet, then the rat is using a tool. Similarly, if I figure out how to check my sending information in emails so that I do not send a personal email out on a professional list serve, then I have learned to use the computer as a tool. As that youtube video asserts, the machine is using us but only until we figure out how to instead teach the machine. Then the machine becomes a tool. as far as how that relates to orality, if you have ears but don't use them, like you don't listen, then you really aren't using your ears as a tool. People who cannot hear find other "tools" to use to communicate. Orality is not natural at all; it's communication and language that is natural. For that reason I think Ong is wrong about how he positions writing with respect to orality (Beth Daniell has done a study which support my view). But I think he is right that writing causes you to think differently than you would if you only communicated orally. Similarly, individuals immersed in deaf culture are going to think differently than individuals who are not. Just as individuals who speak different languages will think differently than each other.

So I say, individuals who write with computers in such a way that the computer is a tool, the computer is at their service, think differently, and even perhaps more complexly, than individuals who do not. Individuals who use the law as a tool, make the law instrumental. But for those who do not, the law uses them.

Update on Survey and Data Collection, Revision of Two Questions

George Hayhoe of Mercer University was kind enough to give me additional feedback on the survey. He noted that two of my questions were problematic. One question asked about digital composing in such a way that there was ambiguity about whether I meant web composing in general, or web composing only on social network sites. So I made a small revision to that question for clarity. At the time of the revision, 90% of individuals who attempted the survey had finished it. And I only had like N=20. So I don't think that ambiguity impacted my results thus far in a big way. The other problem question was the one that followed asking whether the participant had ever been asked to take something down. The question said if yes. . . . and then gave an additional question. It did offer "can't answer" but should have also stated "NA" because if you answered no to whether you'd been asked to take something down, "NA" would be a better answer than "can't answer." So I also I changed the one answer choice from "can't answer" to "can't answer/NA." Hopefully this will provide additional clarity to the questions.

I also just finished sending out a recruitment email to 92 students at RPI. Their contact information is available on the web. So N at this point is about 100 program directors, and 92 students. As far as keeping track of response rate, N = 192 at this moment in time.

Comments about the Cost of Copyright Confusion Research

The report was really interesting and easy to read. The methods were not detailed very well. They recruited participants from organizations such as Alliance for Media Action, and NCTE, and some other organizations. They called people for 45 minute-1 hour interviews. I wanted to know if they paid these individuals to participate. Also, everyone who participated had their name listed, although they separated the comments from the names.

So, I'm wondering, if you know you are going to be named, wouldn't you make more of a point to say you were acting legally -- as many interviewees went to great lengths not to infringe. I also wonder about those who volunteered for interviews. Wouldn't those persons that volunteered be more likely to be invested in the topic because they had a bad experience?

Overall though, the report confirmed the findings in the pilot I did, as far as areas of misunderstanding. One main thing the report points to, is the misunderstanding about attribution and copyright. Attribution is thought of as a component of copyright, or legal use, but isn't. Ironically, NCTE posted a link to this report in its blog, and supplied materials that are supposed to help. Although, looking through the NCTE materials, one contains a flow chart that has attribution as a necessary step to being copyright legal. The other materials are lesson plans that have a kind of moral turn in favor of protecting the copyright holder. This is exactly the problem the report points to -- why it is ironic. The NCTE blog kind of said, here's a report that says teachers misunderstand copyright and fair use, now here's some lesson plans to address that. Unfortunately the lesson plans don't really emphasize fair use. And I can't imagine who has five, six class lessons to devote to the topic. I should think a class period is sufficient to at least raise the necessary issues and considerations.

Men's Bible Study in the Coffee Shop and Polanyi's Personal Knowledge

Here I am making a note that if there is this thing called Personal Knowledge, you might not be able to differentiate that from God. When I was getting my coffee today at the coffee shop, at 6:55 am (getting coffee because the coffee I made at home was awful due to the fact that I opened a new back of Starbucks' unground coffee beans, finally noticing that the words "decaf" appeared very faintly on the packaging label [not interested in decaf]), a group of 15 men were doing bible study; they had their bibles open, scattered here and there among their other artifacts of externalized cognition, and they were talking about things in the bible. OK. One was saying: "we know how all knowing god is, so where in our lives should we rely on God"? I quickly put the lid on my coffee and scurried out. Yes, scurried.

So if they are turning it over to God, that's kind of like relying on your Personal Knowledge, except that if it's God, then you give God agency. Otherwise, the Personal Knowledge keeps the agency, like Lacan's unconscious.

How to Handle Recruiting Members of Population 3

So for this population, I am visiting every program web page and finding faculty members and students. Very rarely are students listed, and very rarely is their work featured. Sad. What I'm going to do is if the students are not available, I will send along the faculty recruitment attachment and ask faculty to recruit students. If students are available, I will contact them directly. If some students are available, I will contact them and ask them to forward to other students in their program.

I also decided that in this context it would be better to say I am doing this to finish my dissertation. I think then people might feel sorry for me and take the survey. I think if I say it is just a survey, they might become defensive about their knowledge and understanding of fair use. I think that students would be more likely to take the survey if it was another student doing it. Not sure. Maybe I am wrong about this.

The Cost of Copyright Confusion for Media Literacy

According to a report written by Renee Hobbs, Peter Jaszi & Pat Aufderheide just released last month (September 2007):

"The Cost of Copyright Confusion for Media Literacy, based on scores of longform interviews with teachers, shows that the fundamental goals of media literacy education—to cultivate critical thinking and expression about media and its social role—are compromised by unnecessary copyright restrictions. As a result of poor guidance, counterproductive guidelines, and fear, teachers use less effective teaching techniques, teach and transmit erroneous copyright information, fail to share innovative instructional approaches, and do not take advantage of new digital platforms.

This is not only unfortunate but unnecessary, since copyright law permits a wide range of uses of copyrighted material without permission or payment. However, educators today have no consensus around what constitutes acceptable fair use practices. The report concludes with a call for educators to develop a consensus around their interpretation of their most valuable copyright tool: fair use."

The full report can be accessed here:

http://www.centerforsocialmedia.org/resources/publications/the_cost_of_copyright_confusion_for_media_literacy/

The “shock and awe” of digital research design//anticipated proposal for IEEE

IEEE International Professional Communication Conference 2008 (IPCC 2008)
Conference Theme: Opening the Information Economy
Conference Location: Concordia University, Montréal, Canada
Conference Dates: July 13-16, 2008

Martine Courant Rife, JD, PhD Candidate
Rhetoric & Writing Program
Michigan State University
c/o 7805 N. Gregory Rd.
Fowlerville, Michigan 48836
517/4839906::martinerife@gmail.com
http://www.msu.edu/~courantm
September 30, 2007

PROPOSAL
The “shock and awe” of digital research design: An argument for building disciplinary cohesion and strength via the affordances of digital technologies
In this presentation I examine the challenges and affordances of conducting programmatic research virtually, and the role of rhetoric in executing such studies. Connors (1982), Dobrin (1983), Durack (1997), Lay (1991), and Rutter (1991) (among others), outlined debates within the field of TPW regarding how we define ourselves as a profession, what matters, and what we study, while writers such as Charney (2004, 1998), Haswell (2005), Johanek (2000), North (1987), and Phelps (1988) document debates on appropriate methodologies and resistance to the use of typical “social science” and/or “empirical” research design in TPW or composition studies. I will further complicate this “identity crisis” by showing the methodological problems arising when a field fails to see itself as a cohesive unit. Further, I discuss ironic glimmerings of resistance-to-digital-research in TPW – as the field simultaneously holds itself out to value knowledge production in the new economy.

As part of a two-year study on rhetorical invention in copyright imbued environments, I examined knowledge and understanding of US copyright law among digital writers (both students and teachers) in US technical/professional writing programs. The purpose of the study is to obtain an overview of this population’s understanding of fair use/copyright, and to explore how that understanding influences digital composing processes. The study’s first phase includes administering an online survey to a randomly selected population of such programs. This aspect of the study posed the researcher as “consumer,” and the participating programs as “contributors,” relying on a distributed work model where program directors across the US were asked to “reach” into the classrooms for student-survey participants. Yet, the roles of consumer/contributor became intertwined and blurred since knowledge generated from the study hopes to make important contributions to the field.


After outlining rhetorical considerations such as ethos, pathos, logos, and kairos as well as specific methods used to execute this digital research, I document the varied responses from program directors asked via email for programmatic participation in the study. Reaction from the population varied, and in some respects challenges existing notions that US professional/technical writing is a cohesive academic field. Upon receiving inquires from prospective participants, I illustrate how rhetorical considerations factored into my own subsequent digital responses – each response tailored to the rhetorical nature of potential participants’ inquiries.

I end the presentation first by offering a heuristic to facilitate successful online programmatic research within our current environment, and then by imagining an architecture, leveraging the affordances of digital technology, one that breaks out of content silo effects of “membership lists” posted to various websites, an architecture that might engender online collaboration, distributed models of work-research, and cross-programmatic/cross-global communication such that the field of TPW could self-reflect, model the processes it upholds, and gain disciplinary strength through cohesion.

References
Charney, D. (2004) Empiricism is not a four-letter word. In Johndan Johnson-Eilola & Stuart A. Selber (Eds.). Central Works in Technical Communication (pp. 281-299). New York: Oxford UP.

Charney, D. (1998). From logocentrism to ethnocentrism: Historicizing critiques of writing research. Technical Communication Quarterly. Retrieved on April 12, 2007, from http://www.attw.org/TCQarticles/7.1/7-1Charney.pdf.

Connors, R.J. (1982). The rise of technical writing instruction in America. Journal of Technical Writing and Communication, 12(4), 329-52.

Dobrin, D.N. (1983). What’s technical about technical writing? In Paul V. Anderson, R. John Brockmann, and Carolyn R. Miller (Eds). New essays in technical and scientific communication: Research, theory, practice. (pp. 227-250). Farmingdale, NY: Baywood.

Durack, K.T. (1997). Gender, technology, and the history of technical communication. Technical Communication Quarterly, 6, 249-60.

Haswell, R. (2005). NCTE/CCCC’s Recent War on Scholarship. Written Communication, 22(2), 198-223

Johanek, C. (2000). Composing research a contextualist paradigm for rhetoric and composition. Logan, Utah: Utah State UP.

Lay, M.M. (1991). Feminist theory and the redefinition of technical communication. Journal of Business and Technical communication, 5(4), 348-70.

North, S. (1987). The making of knowledge in composition: portrait of an emerging field. Portsmouth, NH: Boynton/Cook.

Phelps, L.W. (1988). Composition as a human science: Contributions to the self-understanding of a discipline. New York: Oxford UP.

Rutter, R. (1991). History, rhetoric, and humanism: Toward a more comprehensive definition of technical communication, Journal of Technical Writing and Communication, 21(2), 133-53.

Outcome of update memo

We decided that I would start contacting students and faculty in TPW/writing majors directly, rather than going through program directors. Upon reflection, I think program directors might not be completely in touch with the issues.

I am going after population 3 as well.

I am backtracking on programs contacted, but avoiding the three programs that told me no outright.

I need to add pop 3 to the list of choices in the question that asks "please select your program."

Then I can go for it.

Memo to Bill HD Re: Update on survey and request for advice

MEMO

To: Bill Hart-Davidson, Chair

From: Martine Courant Rife, Student

Date: October 1, 2007

Re: Update on survey and request for advice

Overview

The purpose of this memo is to update you and seek advice regarding next steps for the survey. The survey was supposed to be finished between 9/17 and 10/7. That won’t be enough time at this point. The interviews were supposed to take place in November. I still hope that I can do those the same semester I am collecting survey data.

TABLE 1: SURVEY METHOD AND RESPONSE
Total Census = 200	POP 1, N= 52		POP 2, N= 50
	date	# survey responses	date	# survey responses
First Recruitment Email (pop1, long version; pop2, short version)	Monday, 9/17 pm	6	Monday, 9/24 pm	9 (no students)
Follow-up Email with survey link to Named Contacts		unknown	N/A – survey link sent with first recruitment email.
*First Reminder Email to those not heard from at all.	Thursday, 9/27	+4=10 (one student-no contact info)	10/8
First Reminder Email to named contacts	10/8		10/15
Second Reminder Email to those not heard from at all.	10/8		10/15
Second Reminder Email to named contacts warning of survey close date	10/15		10/22
TOTAL RESPONSES		10		9	19

*For each reminder, the population has been funneled. For example, from some program directors, I received contact names after the first recruitment email. Those individuals already received a follow-up email for population one. A few individuals stated they did not want to participate. Their names were removed from the list. So the first reminder email went to those I had not heard from at all. I’ve heard from some of them. Therefore, the second reminder email will go to those left who I have not heard from at all.

Also, on the N’s, this is estimated for the responses because I’m going by how many people contacted, how many people take the survey. I’m not looking at how many programs responded – because while people can select their program on the survey, they don’t have to. The idea for the population is that program directors represent programs, but not for purposes of the N’s.

Discussion

At this point I have no students to interview, because only one student responded, and didn’t leave contact information. That’s a serious problem, because my study is dependent on having students to interview.

End date for the first two population surveys is planned for October 30, 2007. This date is relevant in order to plan reminders. I chose not to tell participants this unless they ask because if they know the survey is going to be open for a period of time, they are less likely to take it soon, and may totally forget to do so.

One of my main goals is to sort writer-participants for purposes of selecting interviewees, and then analyzing how one’s overt knowledge and confidence maps onto one’s rhetorical inventive strategies when composing – as those strategies depend on tacit knowledge.

Another of my goals was to take a snapshot of the current status of knowledge and certainty of fair use/copyright within the TPW community for purposes of curriculum planning. I wanted to know how important this community thought fair use/copyright was. I wanted to know if their speech was chilled. (It appears to be nonexistent rather than chilled). However, if this is not possible then this goal will have to remain unattainable. I can of course theorize about what causes a failed attempt to gather this data. When reviewing the members of the population (TPW programs), I visited almost every programs’ webpage. I learned much by doing this. Some TPW programs and/or writing majors have no digital writing component in their curriculum. Perhaps my research question should have been: Do you teach digital writing in your program? Do you want to teach digital writing? Do you think there’s any value to teaching digital writing? But that is a different research project. I can easily make the argument that the teaching of digital writing in TPW and in writing major programs, is inevitable. At some point, fair use/copyright will have to be acknowledged and addressed in curriculum. Perhaps the field is just not there yet. There are also issues with my “social science” methods, and documented debates within the field about the use of more traditional social science research methods. Objections to such methods are legitimate – have legitimate backing. But that shouldn’t mean such methods are shunned.

I learned about doing surveys in a quantitative research class at Michigan State University, taught by an individual in Communications –a very quantitatively focused discipline at MSU. We read example survey studies of professional populations. In one study I read (done in 2000), a paper survey was sent to 506 environmental journalists, with a response rate of 50.3% (Babbie says you need 50% to publish, but this is not true in language and learning disciplines – lower response rates are published). I expected that if journalists would respond at this rate, surely program directors of TPW – a discipline as focused on writing as journalism, would respond at an even high rate. But the critical difference is that in journalism research, the survey method is tried and true, and accepted within the field. Such research is written up and depended on by journalists. This kind of research generates funding, and financial support for initiatives like the Knight Foundation. I’d guess that environmental journalists know this – they know that their existence depends on research.

In contrast, TPW is just beginning to seek grant funding – humanities-English department situated programs are less likely to do so. So, there is no inherent benefit to supporting programmatic research. (With all the scholarly discussion on professionalizing and legitimizing the field, there certainly is benefit, but no one’s attending to this). In the environmental reporting study, it was determined that working conditions and funding for environmental reporting lacked. Showing something like that makes an argument for philanthropists and others that money is needed to support this kind of activity. These kinds of dots are not connected in TPW. The funding tail is not yet wagging the disciplinary dog such that individuals in the field see how programmatic research will benefit them. Improving curriculum is apparently not a good motivator. (If we showed that there was massive ignorance, but a lot of interest regarding copyright/fair use, that would provide an argument for MacArthur and other funding agencies, even organizations of copyright holders, to fund educational interfaces, more research, etc.).

I found out I don’t really like doing this type of national survey because I feel too disconnected from the participants. I feel guilty because I am imposing. Yet, if someone sent me this survey in this context I would complete it immediately. I would have my students do it. But that’s because I’m also trying to teach them about research and help them understand their position in the academy. I also think it’s important to support other’s research. I always complete surveys when people send them around because I like to read them and see how they are constructed. But as far as the downside of administering this survey, I don’t feel connected to the participants. I want see their faces and talk to them, because I don’t really trust the survey data completely. I don’t like the way humans are removed from the scene. I’d feel the same way about an experiment because in an experiment, usually the humans are not really present in the data. You don’t talk to them. You just do things to them and see what happens. It was a lot better when I did the survey at MSU and I knew the people and the program. That seemed more “real.” I’m really worried about the time going by because if I have to revise the IRB approval that will take me into the next semester, probably. I know that delays happen in research.

Possibilities for Continuing the Study

The options as I see them are as follows (these are prioritized on the basis of my preference):

1. I pulled a third population of N=47 using the exact same methods as for the first two populations I created. I very carefully have documented this. MSU *did* come up in this third population. If I send the survey to this third population I will have contacted 75% of the population. (If you want to see the list of the first two populations, I’ve attached those lists). With the first two populations, I’ve contacted already 50% of the population. One alternative is to send the survey to this third population. Danielle DeVoss is the contact for MSU. Advise if there’s anything special I should do – otherwise I send her the same email as everyone else. I’d send Danielle an email ahead of time telling her I’m doing it, or asking maybe, unless you can/should do it. That proved effective. Time is an issue but there’s not much I can do about that. If I have to collect data in the spring, I will start writing some of the chapters now. This survey is really time consuming. If I was doing interviews I’d be done. With this option, IRB doesn’t need to be revised because it’s still a random selection, permitting anonymity in the survey, following the protocol as approved. I could also revise the IRB approval to allow classroom visits like I did in the pilot. The fact I am not recruiting in person with respect to the students, or not contacting people directly by email, is problematic. I seriously don’t know how I will ever get anyone to agree to be interviewed if I don’t ask them upfront, or have someone else advocating for me. [That woman I met at XXX’s party – from the XXXX – she did a survey to all students at XXX, got release of their names, and bought one Ipod that was given away as in a contest to participants. She got a really high N and attributes this “prize” to that. I took her survey last spring. However, I did not tell her it wasn’t because of the Ipod;, it was because I, and every other student I know, is very dissatisfied with the XXXX. {edited some stuff out here} You see, if copyright law is not problematic, people have no reason to care about it].
2. Revise the IRB approval and focus on the MSU program—don’t contact the other parties in the third population. The MSU location solves a lot of problems because it gives me proximity to my interviewees. I will discuss the initial survey attempt in my dissertation of course. I still can accomplish all my other research goals – but I will not be able to make statements about TPW in general. This would change my study design more than #1.
3. Revise the IRB approval and focus on MSU-LCC – this provides contrast. I’d need to do classroom recruiting. This would not be TPW because I’d have to go to digital arts at LCC. Our writing students don’t do digital writing on the WWW other than facebook or what they do on their own. This would push my data collection in the spring.
4. Contact the entire population regarding the survey – all 200 programs. This wouldn’t solve much because I’d still get an overall low response, I’m sure. It doesn’t necessarily allow me to generalize more because participants are self-selecting anyway, and a larger N doesn’t make that fact any less so if I do the entire population and still get only 10%. This option also lengthens the discomfort of administering this survey remotely.
5. Revise the IRB approval and get permission to send out to list serves like ATTW, WPA, TechRhet, CCCC-IP, ATTW, MSU RW, PW, MA list serves and the copyright lawyer list serve I’m on. My main concern here is that it makes me look like a “loose” researcher. I don’t want that. My other concern is that I then have no control over my population. It is no longer the TPW community. I could create a filter question, but still, my “frame” is very fuzzy. I personally would have a hard time generalizing findings especially because when I actually attempted to administer the survey to the community that I’m studying, it didn’t work out too well.
6. I could do both #4 and #5, but then it turns into a free for all.
7. I don’t know what 7 is. Any ideas? I just want some data. I still like my study design and I wished it would work. But the fact that it was rather unusual to do a survey in rhetoric & composition should have been a warning to me that I’d experience resistance on multiple levels, even to the extent that I am prevented from collecting data. I am also aware that I personally lack audience awareness. People may not know what I’m talking about. I helped a colleague log onto a digital interface today. I had to sit with her. I mean, help her create a user name and password – logging on. She needed help logging on. She’s been teaching composition longer than I.
8. The main thing is I need a few people to take the survey so I can interview them. So the question is how to accomplish that most efficiently without undue burden to the participants. You have to think back to Haller’s article – her study (Rhetorical Invention in Design). She went to one class and used teacher recommendations to locate her study participants. The teachers and TAs told her that this one group in the computing documentation class was the most advanced – so that was the group she studied. The survey I have is trying to accomplish this same thing – it’s trying to tell me who to study. So if you think about it like that, I could just use the survey with a small population, a class or two, etc.

Activity Theorists = Feminists & Polanyi's connection to Lacan

Any theorist relying on Vygotsky, or Polanyi for that matter, has some really basic feminist origins for the reason that "mediation" and "personal knowledge" are "feminine." Literally they are. Mediation is something occurring through internalization. Things that are inside other things are generally "feminine." (Hearkening back to Lacan and Freud). To think we need to re-externalize that which is already inside us in order to achieve "objectivity" seems rather inefficient. By relying on "personal knowledge" -- tacit knowledge, intuition, creativity, you can, I posit, advance knowledge much more quickly and efficiently, and on multiple levels.

But, as Polanyi points out, I think that some things about how we know, how we think, we can never see or understand. While many researchers have tried to externalize, map writing processes -- I believe they will never be able to do this adequately, because of the nature of "personal knowledge." You could argue that personal knowledge connects on some levels to Lacan's notion of "unconscious." I find comfort in knowing that it is there-just having evidence that it exists. So I guess in my study if I were to support the hypothesis that during the writing process, things happen that we cannot know or understand, or have access to completely, that would support the notion of personal knowledge as Polanyi discusses it. Heuristics can only go so far, and don't mean much out of context. To present a FYW student with a heuristic and then say: go write -- hum, I think this would not be effective.