I have been rereading Benjamin Franklin’s  Autobiography.  Franklin wrote that in 1742 he “invented an open stove for the better warming of rooms, and at the same time saving fuel, as the fresh air admitted was warmed in entering.” He wrote and published a pamphlet describing and promoting his invention. Its lengthy title concludes with “and all Objections that have been raised against the Use of them answered an obviated.” Franklin did not lack self-c0nfidence! The royal governor of Pennsylvania “was so pleas’d with the construction of this stove…that he offered me a patent for the sole vending of them for a term of years; but I declin’d it from a principle which has ever weighed with me on such occasions, viz., That, as we enjoy great advantages from the inventions of others, we should be glad of an opportunity to serve others by any invention of ours; and this we should do freely and generously.” (The Autobiography of Benjamin Franklin, Philadelphia: University of Pennsylvania Press, 2005, p. 92.)

Franklin understandably took mild umbrage, however, over “An ironmonger in London however, assuming a good deal of my pamphlet, and working it up into his own, and making some small changes in the machine, which rather hurt its operation, got a patent for it there, and made, as I was told, a little fortune by it.” (pp. 92-93)

Would that the Creative Commons license had been available to Franklin in 1742!

Today's Chronicle of Higher Education reports that Sen. Harry M. Reid ( D-NV), the U.S. Senate's majority leader, yesterday backed away from his intent to introduce an amendment to the Higher Education Act, currently under consideration for reauthorization. His proposed amendment would have imposed special burdens on a small number of colleges and universities, deemed by the Recording Industry Association of America and the Motion Picture Association of America to be the worst “enablers” of questionable P2P downloading. The amendment would have required these 25 institutions to “review their antipiracy tactics and to make plans to adopt 'a technology-based deterrent' to peer-to-peer file sharing.”

Higher education lobbyists succeeded in heading this off. One of their arguments was that technology alone cannot resolve this issue. Nor can the higher education community address it alone. Nevertheless, the music and film industries seem intent on drafting American higher education as their copyright cops. All of us in higher education have a responsibility to teach our students proper respect for intellectual property, including an understanding of their fair use rights. We do not, however, have a responsibility to the RIAA and the MPAA to hold our fingers in a dike while they cling to increasingly untenable business models. The recording and movie industries need to take stock of the realities of the current technological landscape, the evolving culture, and a growing social and artistic movement they cannot contain. If they do this rather than insist that academe save them from change, maybe they will come up with some ideas and strategies that will allow them to continue to generate revenue at the same time they acknowledge and foster the creativity of mash-up culture. But I wouldn't bet on that happening before the dike bursts.

“Fair use” and “RIAA” are words that rarely appear together. I am my university's registered DMCA agent. So I appreciate intellectual property rights and the flagrant disregard (or ignorance) some have towards those rights. I also own the rights to intellectual property I have created. And I appreciate fair use and how it is threatened today. On February 27 in Congress Reps. Boucher [D-VA] and Doolittle [R-CA] introduced the FAIR USE Act of 2007 and the following day the RIAA announced that it is starting a campaign to inform college students that it is readying lawsuits against them charging them with illegal fire sharing and downloading. These are not necessarily in conflict with one another. Nevertheless, at some point the RIAA needs to ask itself how long it can keep its thumb in the dike before it recognizes that it needs to find a new business model that will work for it, for the artists and others it represents, and for consumers who are quick to recognize the opportunities new technologies offer.

Reps. Boucher and Doolittle have introduced this same bill in vain in earlier Congresses. Let's hope that their colleagues see the wisdom of their proposal. After all, in every Congressional district there are more music consumers among the voters than there are individuals who make their living from the RIAA's eroding business model. Tell your representative what is wise and what is fair and urge them to cosponsor the FAIR USE Act.