Legal issues

Yes Scotland

If there’s one thing we can learn from the run up to the Scottish referendum, it’s this: People are not tired of politics, as has often been claimed in and around general elections. They are tired of party politics!!

Especially young voters are keenly involved in finding their way round the socio-political landscape. But, what they want is direct democracy and voting on issues, not parties with whole-sale agendas and manifests, of which they only like some 30 odd % or less. A similar trend could be observed earlier in the emergence of Pirate parties. Maybe an independent Scotland is an opportunity to provide this.

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This day might, finally, mark the end of the egalitarian internet that we know. Neoliberal market ideas have won the long standing battle for net neutrality which dates back several years (see my posts in 2009, 2010, and 2011). A Federal Court decided against the FCC (Federal Communications Commission) and in favour of Verizon.

“The court today struck down the two most important net neutrality rules: one that prevented discrimination in favor of or against websites, and one against outright blocking.” (link)

With this ruling, neoliberalism, the flow of free market forces, would finally be able to take over the rule of the web. The potential implications of this are that you only see what you pay for, or: you can only be seen on the web depending on what you pay for!

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The paradox of freedom in the digital world has long become apparent, but it hasn’t sunk in with many people. The oft promoted idea that people somehow would be freer in a digital world and that computers “allow” for personalisation and more individual self-fulfilment in learning, working and playing is simply false.

Just recently again, I read many avid bloggers bash the one-size-fits-all education system while hailing online self-study. What they don’t realise is this: Computers – even “adaptive” systems – only work on rules! These rules are set by programmers and always start by modelling the generic user and use case, the intention being to apply to every user entity in the same way and unequivocally (sounds like one-size-fits-all? – well it is!). Even in the most adaptive of systems, the world of computers knows no individuals nor does it recognise personal need or want. And most importantly: the rule sets are non-negotiable! It becomes most obvious when an online form doesn’t accept your postal address or cuts off your name due to some formatting rules in the text entry box.

Machine learning model

Over time, to accommodate outliers in services like e-government, e-learning, e-business, etc, more detailed rules, models and exceptions have to be created and are built into the system. This does not make the digital world more flexible, but allows for more inclusion and for some, if only limited or illusioned choice. It can hardly be called personalisation as the power of change does not lie with the end user, but with the system engineers.

Moreover, even with the best of intentions, system engineers and designers of, say, learning platforms follow the logic and principles of the competitive market. Hence competing products which are interpreted as “individual choice” and the basis for a personalised online experience are all pretty much the same (e.g. travel portals, VLEs, online banking services, MOOC platforms). They compete with the same (mainstream) users in the same market segment. Personalisation, however, starts with the individual. Ask yourself for example: Where in an adaptive personal learning environment would you send pupils with behavioural difficulties, attention deficit, lack of confidence, disinterest, or dyslexia? – of course, you wouldn’t send them, cause this is personal learning, so you couldn’t. But how would they know and remedy such weaknesses themselves?  This obviously necessitates the understanding that socialisation is an essential part of the upbringing and education of citizens. Would computer systems recognise and adapt according to their needs? Do the mainstream online systems cater for anything other than content transfer and verbal exchange? NB: ‘likes’ and social metadata are not part of human communication.

Another characteristic of the rules and logic based systems is the transparency of the individual it creates. Despite the strong political rhetoric which asks for more transparency, I hold it with Byung-Chul Han that transparency of individuals is an instrument of controlling the masses and only serves the ones in power.

There is, however, one other tested and proven rules based system that we know, which does in my mind do well in personalisation and individual democratic freedom! As unlikely as this may sound, it is the legal code our democracies follow, whether it is case-law based or posited law. Unlike the digital world this is more a boundary framework than a set of determining rules. It doesn’t anticipate or predict individual behaviour or requirements. You are more or less free to do what you like until you overstep the mark or conflict arises. The digital world should be more like this.



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This is a fascinating article. Although a rather challenging read it’s well worth it. It provides a great insight in how corporate companies turn open source and open content to their advantage! The strategies explained here kept the clever advanced tacticians like IBM and Microsoft out of the tech news while the likes of Apple, Blackboard and others smashed each others heads in publicly with big patent clubs and court battle after court battle!

It goes on to disassemble the Coursera MOOC agreement and explains that behind the nice words of leaving all rights with the authors there is a sinister enclosure happening which renders the content valueless outside the Coursera platform:

“all right, title, and interest in and to enhancements made by Company to the Content in the form of translations, adaptations, captioning, encoding, transcripts or video annotations produced in response to accessibility requests (‘Content Enhancements’) will be exclusively owned by Company.”

In effect, Coursera claims any amendments and platform support for the MOOC, without which, of course, a MOOC isn’t quite the same. Free after JRR Tolkien: “One site to find them, one site to bring them all and in the darkness bind them”!

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At a recent book sprint in London for an Open Education Handbook, I followed an interesting presentation by Phil Barker (CETIS) based on this article.

We all know about the many different interpretations and uses of the word “openness” and “open something” (open source, open data, open educational resources, etc. etc.). The interesting bit here is the moral interpretation of openness.


One key point to note is that openness can be commercial. Patents can be “open” in that they can allow other developers to build and innovate on them. This means, “open” does not directly equate to “free of charge”, although it can be. “Open” could also refer to the freedom to distribute. Press releases typically operate in this sphere, because their authors are interested in their texts to be copied, distributed, and even re-written by others, whose name will be on the published article.

Where moral interpretations of openness get really interesting is on the dark side of the law. According to this spectrum graph above, and as we all know only too well, the legalities of content are quite often ignored. On the simple most common scale people just ignore IPR and distribution rights. Sharing music and other stuff with friends is common practice (and has been for a long time). This type of (ab)use is very common in education when failing to reference the creator/author of items, or when using copyright protected materials in teaching.

Above and beyond this, producing illegal copies, counterfeit products and/or claiming someone else’s work as one’s own are definitely more serious forms of brute-force “openness” that equates to theft. However, it is quite common practice that in academia professors claim IPR over student work or putting their name on their articles without any major contribution.


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This is another very useful tool to manage your cloud and Web 2.0 accounts:

If your accounts proliferate like mine all over the Internet, with more and more services that require registration just to see what they are all about and whether they are worth while using, then this service comes in handy. I typically use a throwaway e-mail, username and password for testing new sites, but since I do put in some content and profile data, it is useful to also have an easy way to removing them if no longer required. provides an easy traffic light (green-yellow-red) notation on how easy it is to delete an account in various services. Black signifies that deletion of your profile and account is impossible. The unpleasant surprise was that among these were services I value a lot, like wikipedia, myopenid and

Interesting also the MOOC providers:




Coursera has made it ‘hard’ to delete an account whereas EdX and Udacity have no facility to delete. Now this could also herald a new way of self-destruction after time-out, as has often been asked for in personal data management and privacy fora, where the Internet should be engineered to be able to “forget”. Unfortunately, in the days and age of Big Data, this is probably not what is happening to our data…



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Fascinating, how fast industry jumps on the MOOC bandwaggon! However, it can hardly come more farcical than this example:

SIPX is yet another spin-off company out of Stanford “created to manage copyrights and deliver digital documents for the higher-education marketplace“. What SIPX identify as a problem is that content owners are faced with piracy that affects distribution and fair compensation. Equally, stretched library budgets to acquire licences hinders professors to prescribe digital materials and students studying them. All well known issues. However, despite their claim that they’re based on research from 2005, I see SIPX merely as parasitic squatters trying to occupy the middle ground between university libraries and students/lecturers (and charging for it).  Here is why:

According to their description, a professor offers a link to a SIPX registered resource, and posts the link. “A student, who clicks on such a link, is authenticated for applicable discounts, pays any necessary royalties, and then accesses the digital content for electronic reading, printing or both, all in a single, seamless user experience.” [link]

In the typical universities that I know, the university library already pays for the usage licence and receives a discount from publishers if available. Especially, if they buy large numbers of a book or buy more stuff from the same publisher. So, why, I ask, would the student now pay for an access licence again, plus presumably an additional charge to SIPX?

Neither is SIPX proposing to protect the copyright of authors or publishers. Despite their problem statement above, it is unlikely they’d go to court to defend the IPR of a content provider. This is typically the duty of publishers not of the brokers in the middle.

Even bolder is their statement on MOOC readiness [link]. With SIPX, “MOOC providers can enrich the student experience with a variety of readings that are otherwise difficult to clear for copyright”. What part in Massive OPEN Online Course (MOOC) did they not understand?

To me, companies like SIPX are part of the problem. The solution is quite simple: Open Access. Professors create their materials as OERs and OAI articles, and should only promote open access materials to their students. Even more so in a MOOC.

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It looks like the entire Internet transparency movement is in a crisis. Maybe it was simply wrong to hope that the Internet would bring unsurpassed freedom to the world. Attempts like Julian Assange’s ‘Wikileaks’ failed. Oppressive governments in totalitarian countries tightly control content and access, and even in liberal Western societies, people’s online behaviours are monitored and analysed by suspicious security and commercial bodies alike. Formations like Pirate Parties are on a steep downward slope after some initial attention. Even the free sharing of content and software – Pirate Bay or Rapidshare – has turned from a false illusion into an illegal activity, hunted down by patent police and copyright agents. The utopian vision that the concept of “ownership” will give way to the “commons” and the “common good”, and, therefore, lead to a freer society is no longer real.

Time to reflect what we mean by “free”, a word that is all too often used without proper contextualisation, thus giving it a propagandistic meaning rather than a philosophic reality.

First, there is “free” as in “costs nothing“. This, of course, was never really true for the Internet, as equipment and access by subscription always came with a hefty price label, even in the good old days of dial-up modems. More money always bought you more bandwidth and prioritised connectivity, and this is even more so today. Deeper pockets also priviledge you with special treatment such as better visibility and higher rankings. Free software is still around to some extent, but closely attached to spam advertising or selling your soul to a sinister network of commodifiers. Personal data has become the new currency on the web. Where funding is provided by benevolent third parties to provide free-to-all, e.g. OERs, this most often ceases once funding is consumed.

Second, “free” as in “free speech“. Free speech on the Internet suffers from the constant danger of being monitored and recorded by copycats, hackers or, what’s worse, authorities and companies. Free speech and expression of opinions are subject to commercial exploitation, and various governments have used these free expressions to expose critics or label people’s political attitudes, if nothing else, for national security reasons. The real concern, though, is that the Internet enables not only immediate reprisals, but also future ones. Ignoring the threats is like ignoring a Jewish star on one’s own jacket. At the very least, one’s personal career maybe at risk for portraying attitudes that may haunt you later in life. So the safest bet is to adhere to an invisible code of conduct that is best described as exchanging pleasantries. Can we still call this “free”?

Third, “free” as in “freedom to do what you like“. This is closely connected to free speech, since most of our digital lives consist of verbal or audio-visual expressions of who we are or pretend to be. More and more, digital identities are being tied to real IDs, and it becomes less acceptable to fake who you are or to have multiple digital personas. Clamp-down methods include a real  e-mail/phone verification, server verification (for website owners), endorsement (e.g. networkblogs, linkedin), or social connectivity of who connects to you. At the same time, people have become legally liable for what they do online. More transparency in this area of course inhibits bad guys to pretend to be what they are not, it gives security and trust to shoppers and subscribers, etc. Nothing wrong with it if you are happy to be who you are. But this also leads to decreased “mobility” of transgressing your own self, and a higher risk that anything you do will be held against you perhaps decades later. Media and opposition will have a feast in exposing the past of any future prime minister, colleague or rival. Some ordinary things, like the sharing of music or videos with friends are even less permissible in the digital world than in the unplugged neighbourhood.

All of these freedoms were only dreams that had to fail as much as they succeed or fail in the real world. Letting the mob rule was an online experiment that did not show the benefits idealists had hoped. Things that were available for free quickly turned sour by astroturfers, trolls, spammers, hackers and other exploiters. Vandalism seems to be as much human nature as the longing for freedom. Therefore, it is inevitable that all online paths eventually must lead back to the rules and social concepts we have in the real world.

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Have you ever wondered why nowadays there are half a dozen or more authors on a scientific paper? Have you had it that you co-author a paper with someone and suddenly another author appears on the list without having contributed?

There is substantial squatting going on in the field of authoring. In my view, this constitutes one of the worse sorts of academic plagiarism by claiming something to be yours that is the work of others. In this, academic publishing has become comparable to collaborative school essays: some do the work while the lazy guys latch on and get the marks. But there is no teacher to assess the individual contribution so it is nearly impossible to tell who contributed and how.

The motives are clear: Career and personal professional performance are measured in quantities, so having your name appear more often, or having a longer publication list directly benefits your reputation and career. Because author lists are sequential, the quantitative method leads to a dilemma as there can be no equals. Additional value measures need to be introduced, and, therefore, the authors’ list has become a battleground! First authors are deemed to be more valued than second, third, forth authors. Additionally, there is a battle for last place, which can be called the “mentor” spot. The person appearing last on an author list gets the benefit of being associated with the mentor-ship of the entire work, i.e. the authority in the background. Some research departments even operate a policy that the Head appears on all outgoing publications. The same applies to PhD supervisors.

People obviously ignore the possibility of acknowledgements, where the mentoring support of supervisors etc.  can be explicitly mentioned. Instead, a distorted picture of authorship emerges that leaves the reader in the dark on who’s responsible for the content and who exercised influence over it. Furthermore, it is strictly speaking against conventional IPR and copyright because only the manifestation itself, not the idea or revision qualifies for protection. Holding an opinion or idea but not recording it, does not fall under IPR. For this reason, many PhD supervisors claim that when a student writes “their” ideas in a paper, they have the claim of authorship. But, in this case, we reduce the PhD researcher to a ghost writer, which is far from the reality.

For me, this battle for authorship has become one more nail in the coffin of traditional academic publishing. But there is little one can do, since junior researchers are in a weak position to protest against exploitation, squatting and position battles. And more senior academics are unlikely to cry for change of something that benefits them without moving a finger.

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Many institutions now begin analysing student data from their VLEs. John Fritz gave an insight into what University of Maryland (UMBC) are doing with Blackboard and how they play back usage information to students in their CMA (check my activity) tool. London City University do similar things with their Moodle environment, and also my own institution, the Open University of the Netherlands, looks into Learning Analytics with our Moodle, Blackboard, and OpenU environments.

One thing that’s bugging the full utilisation of Learning Analytics, is privacy of student data. I am not really sure where these concerns originate from, and mostly it seems that they are made up on the fly rather than being based on solid legalistic arguments. But the effect is that, frequently, a group perspective of Learning Analytics is adopted to avoid the problem zone. This allows to anonymise a learner within a cohort, and results in emergent group patterns, such as how many percent of the students were active in chat.

This group perspective might be useful, for example, in evaluating functionalities or content items. It can highlight documents or dicsussion topics that are popular or unpopular with students. It can also show the course owner or tutor the most common learning paths through the online parts of a course.

However, in pedagogic terms and with respect to personalised learning support, such information is of limited value in helping learners to improve on their learning. Playing back the usage information to learners for reflection is of course another option, but in our survey earlier this autumn, the clear majority of expert respondents indicated that learners would require support to make the most of the Learning Analytics results. After all, what does it tell the learner that they have used the forum less than other students or less than last week?

This leaves the individual analytics that goes to the teacher unanonymised! The question is how this can really be a privacy issue, since there is already an established trust relationship and learning contract between these two parties, and it must be clear to everyone that evaluating engagement is part of a teacher’s job. In my mind, this is the best way how Learning Analytics can be usefully exploited for learning support.

Privacy is a real concern that shan’t be belittled as this news item shows, but there is no need for paranoia where established (teaching) processes and accepted trust relationships already exist. However, it maybe wise to create awareness and provide an opt-out clause for the unwilling.

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