Jim Crow 2.0

During my parents’ lifetimes, the law in many states, like Mississippi and North Carolina, allowed people to refuse to serve them:

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Bus station waiting room in Jackson, MS, 1961.                       William Lovelace, Express, Getty Images

This law also told them where they could use the restroom:

White Only Restroom Sign

1962, South Carolina, USA                                                             Restroom sign for segregated men’s room in county courthouse in Sumter.  Image by © Bob Adelman/Corbis

Officially, those laws don’t exist anymore…for my parents. But they’ve made a comeback.

With the passage of HB2 in North Carolina and the so-called “religious freedom” bill in Mississippi, Jim Crow is rearing his ugly zombie head.

Under these new laws, and others like them that are surfacing, people can tell others where to use the restroom and refuse to provide them with service. Sound familiar?

These kinds of affronts to civil rights cannot stand. While it’s great to complain about them on social media, the time has long come to take action. As my dear friend Chris Bourg notes:

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So, please join me in writing to Gov. Phil Bryant of Mississippi and Gov. Pat McCrory of North Carolina. Feel free to use my letters below.

Dear Gov. Bryant:

HB 1523 is an affront to civil rights. The law is unconstitutional and flies in the face of the very basics of human rights. It not only hurts LGBTQ people but all people.

Repeal HB

 

Dear Gov. McCrory:

HB 2 is an affront to civil rights. The law is unconstitutional and flies in the face of the very basic of human rights. It not only hurts trans and genderqueer people but all people.

Repeal HB 2 now!

 

 

Fair Use for Social Justice

This week is fair use week; and as I spent my time preparing and giving workshops on how to harness the power of fair use within the walls of the ivory tower, I also thought of the many ways in which fair use can be used as a tool for social justice.

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Slide from “Figuring Out Fair Use” by April Hathcock, CC BY-NC

Fair use is an exception to the exclusive rights of a capitalistic copyright system that allows owners to exclusively own and monetize works for about a century after their death. Though originally created “to promote the Progress of Science and useful Arts” (U.S. Const. Art. I, §8, cl. 8), it is now widely used to ensure the ability to reap financial award from “original works of authorship” (17 U.S.C. 102)—sometimes by the author but most often by the corporation to which the author has assigned their rights.

In the midst of this bleak copyright environment, there exists fair use: an imperfect, but powerful copyright exception that allows limited use of materials without permission for purposes “such as criticism, comment, news reporting,” and more (17 U.S.C. 107).

Despite popular belief, fair use is a right and not just a defense. You don’t have to wait until you are sued to assess your use and determine whether it’s fair. You have a right to make that determination as you contemplate your potential use.

And that determination is naturally flexible, allowing for changes in the way copyrightable creations become “fixed in any tangible medium of expression” (17 U.S.C. 102) and the various ways in which fair users may need to exercise their right to use. The famous “four-factor test” is in fact a “four-factor plus test,” allowing for the consideration of additional factors as circumstances may warrant (17 U.S.C. 107).

What does all this have to do with social justice? Like with any socio-legal structure or process rooted in a society of capitalism and oppression, copyright law affects different groups and different forms of expression differently. There is privilege in copyright law. There are haves and have-nots. There is the mainstream and there is the marginalized.

But with fair use, there’s at least a teeny bit more equity in the system. The haves are not able to exercise monopolistic power over their works because their power is not absolute. There are limits and exceptions, allowing the have-nots to benefit from information and cultural materials being offered at high cost in the market.

And it does come down to the high cost of information in the market. While plain data and ideas—which make up the basis of information—are not copyrightable, much of our information becomes locked down in copyright because of the fixed and tangible nature of how we create and value knowledge. White, capitalist society is not an oral society. Whatever there is to know, whatever there is that is worth knowing, is “fixed in any tangible medium of expression” and subject to the market forces of copyright. Information is available and there’s tons of it, but it is far from free.

Those of us working in libraryland should readily see how important fair use can and should be to our social justice mission of providing information to all. And we should also realize how this same power of fair use is essential to providing some form of equity for marginalized groups.

Just look at what happens when fair use fails: The precedent set in Biz Markie’s loss of his sampling case nearly crippled hip-hop and virtually all other forms of black music that rely on sampling previously created rhythms and beats to create new musical creation. This is a tradition that harkens back to the drum circles on the African plains and shared oral culture, none of which finds value or validation in a white, capitalist society. What is more, this lack of fair use continues to plague the black music industry; just ask Robin Thicke and Pharrell Williams.

In the realm of higher education, we see the potential trouble a failure of fair use can cause in the lawsuit against Georgia State University, a public institution with a diverse student body, located in the heart of a city comprised of over 50% people of color. Librarians, faculty, and staff were working to save students on exorbitant textbook fees by harnessing the power of fair use to make educational materials—and the valuable knowledge they contain—available on password-protected course sites. While the case, through all its permutations, seems to be headed for a positive note for the university and its students, it is still an example of how much fair use is desperately needed. This case has been going on for eight years and still isn’t closed. All for the sake of providing students from diverse backgrounds with the materials they need to learn.

We need fair use in order to provide information to more people, in order to break beyond institutional, market-driven barriers that function to keep information locked away for a high price. Fair use is the tool we use to make the creation and distribution of knowledge and culture more equitable. Fair use is a tool we use to build a more just society.

(Some of) The Trouble with IRB

I’m working on a research project with one of my favorite people, Jennifer Vinopal, and we had to go through the U.S. Institutional Review Board (IRB) process. (Commence collective groan.)

The IRB process is required for human subject research and involves having your proposed study reviewed by a select group from your institution for any potential ethical issues. It can be a very long, painful, drawn-out process, and there’s plenty of critique out there that it often does not serve its purpose to ensure the ethicality of human subject research (Heimer & Petty, 2010). (That last article is paywalled, sorry. ILL at your library or contact me directly for a copy.)

Aside from the personal annoyance of having to deal with IRB—which really wasn’t that bad for me because Jennifer is incredible and took the lead on that part of our work, plus our study was exempt—as I’ve learned more about IRB standards in general, I’ve come across some serious issues.

IRB standards in the U.S. are based on federal regulations issued by the U.S. Department of Health and Human Resources. They lay out the types of research requiring IRB approval and the standards by which that research should be judged for its ethicality. Part of those regulations involves identifying population groups that are particularly vulnerable and require heightened standards for research conducted among them. There are three. Just three. (See a problem already?)

  1. Pregnant women and their fetuses (Subpart B)
  2. Prisoners (Subpart C)
  3. Children (Subpart D)

Now right off the bat, this list is far from adequate. I can come up with several more categories that should be on this list: people who are homeless; members of an immigrant population, particularly if undocumented; sex workers; people with physical or mental disabilities that render them incapable of conveying meaningful consent; and on and on. But those three are the only ones.

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“Prison doors” by rytc via Flickr, CC BY-NC-ND 2.0

As if the dearth of categories isn’t enough, there are also problems with the so-called extra protections afforded these categories of people. In particular, I was troubled by what I learned about the requirements for research among prisoner populations.

First off, prisoners only include people who are confined to an institution by court order. Obviously, people in prison but also people on house arrest or in court-mandated rehabilitation or psychiatric wards. However, it does NOT include parolees, even though they are subject to court-ordered monitoring and are susceptible to some of the same vulnerabilities as the currently incarcerated.

Imagine if the director of the halfway house invites a researcher to come in and interview residents for a research project. Even if there’s no overt coercion at play, what might a recently paroled resident think about refusing to participate in the study? This person is already struggling to reenter society, get a job, find a permanent place to live—would it pay to potentially piss off a highly educated researcher or the director of the housing facility? What if word gets back to the parole officer? Will there be repercussions there?

Another issue I found lies in the required composition of IRBs reviewing prisoner research. IRBs in general are required to have at least five members. For boards reviewing prisoner research, only one of those members needs to be a prisoner, former prisoner, or someone who can advocate for the prisoners’ rights (such as a prison chaplain, social worker, or other such representative, thankfully excluding wardens, guards, and the like). One of at least five. Only one.

Can you imagine being an ex-con, sitting in a room with a bunch of scholar-types, discussing why it is NOT okay to conduct research on your former fellow inmates? Better yet, can you imagine being a current prisoner, in your orange jumpsuit or whatnot, sitting in a room with a bunch of free and highly educated researchers, discussing why it would not be a good idea to conduct research on you and your fellow inmates?

Talk about power differential. Meaningless agency is no agency at all.

It terrifies me that this is the type of bureaucracy passing as “safeguards” for the interests of vulnerable populations. And when you consider that 60% of male prison inmates are black or Hispanic and that black females are as much as 4x more likely to be imprisoned than white females (U.S. Dept. of Justice, 2015), you can see how this lack of protection and agency can cut across other lines of oppression.

For IRBs to be meaningful, they have to involve more than just an annoying bureaucratic step in the research process. This isn’t just about preventing overt forms of exploitation like the Tuskegee syphilis study; there are also more subtle forms of oppression and exploitation at play.

 

References

Heimer, C. A., & Petty, J. (2010). “Bureaucratic ethics: IRBs and the legal regulation of human subject research.” Annual Review of Law and Social Science 6, 601-26.

Tuskegee University (n.d.). “About the USPHS syphilis study.” Retrieved from http://www.tuskegee.edu/about_us/centers_of_excellence/bioethics_center/about_the_usphs_syphilis_study.aspx.

U.S. Dept. of Health & Human Services (2010). “Protection of human subjects.” 45 C.F.R. 46. Retrieved from http://www.hhs.gov/ohrp/humansubjects/guidance/45cfr46.html.

U.S. Dept. of Justice, Bureau of Justice Statistics (2015). Prepared by Dr. E. Ann Carson. Prisoners in 2014. Retrieved from http://www.bjs.gov/content/pub/pdf/p14.pdf.