These are my notes from Colin Webb (Noble Public Schools) and Glen Hammonds’ (State Attorney General’s Office) presentation at the February 7, 2012 Oklahoma Technology Association / Encycl-Media Conference titled, “Can You Do That? Legal Issues in Tech Administration.” MY THOUGHTS AND COMMENTS ARE IN ALL CAPS.

First from hearing from Colin Webb:

today we’ll address policy, copyright, email/IM, voicemail, cell phones, Internet, social networking

There are lots of legal ramifications to these digital devices in our schools
- we want to give you some important things to consider

Importance of Policy: who’s got your back?
- we tend to not get very excited about policy

3 lessons today:
1- policy = protection
- some people view policy as stifling to creativity
- it allows protection for us to do our job, we look for things which we need protection for
- once you have policy in place, please follow it (you’ll make everyone happier)
- it will eliminate some of your liability
- if we have a policy but ignore it in certain cases, that is worst-case for a lawsuit

Copyright
- All’s Fair in Educational Copying? Really?
- fair use was crafted long before electronic media
- citing section 107 of copyright law
- “lifting part of works for a limited context”

“the crux of copyright law application: deprivation of profit and loss of control”

Colin Webb at #otaem12

examples: pirated movies, audio, software
- public performance
- commercial use

example: high school talent show when you’ve charged admission
- if you commit that to DVD and sell them for $15 each, then you’ve publicly performed my song without my permission for that royalty

loss of control examples
- cartoons used for advocacy (people who are re-purposing something that the original author disagrees with)
- substantial alteration of content (fine line for definition of ‘parody’)
- you don’t know where that fine line often

2002 TEACH Act was an improvement on fair use
- specifically focused on distance learning

2005: DMCA prohibits circumvention of electronic copy protection

You can play a movie relevant to your curriculum, you can’t play a movie for entertainment
- you can make an archival copy, you can’t distribute copies

“Disney is notorious for defending their copyrights and they will sue your district.”

Copyright: Transformative Argument
- “as long as the work is transformed, it is fair use”
- determined on a case-by-case basis, no clear-cut rule
- this argument has been made and both successfully and unsuccessfully

‘At the ISTE conference several years ago, I heard a presenter say this means educators and students can do whatever you want, it will be sorted out in court if it is challenged’
- that is bad advice

MY COMMENT: I ASKED COLIN WHO THE PRESENTER AT ISTE WAS WHO SAID THIS. HE SAID IT WAS SOMEONE FROM ANOTHER SCHOOL DISTRICT. I WANT TO FOLLOW UP ON WHO THAT PERSON WAS SPECIFICALLY. THESE ARE THE KIND OF ‘STORIES’ ABOUT COPYRIGHT WHICH NEED TO BE VALIDATED AND CITED SPECIFICALLY.

“I call taking someone else’s work and transforming it plagiarism”
- err on the side of caution

This just in!
- 18 Jan 2012: Supreme Court ruled (6-2) on Material in public domain is not in “territory that works may never exit”

Case: International Copyright. Congress has power to move works in PD back to protected (1994)
- HG Wells, Igor Stravinsky

Now hearing from Glen Hammonds:

Records: Nothing lasts forever? Don’t bet on it!
- Freedom of Information Act
- Oklahoma Open Records Act

Governmental tort claim act protects people when they are doing things in the scope of their employment, this applies for school teachers

1 Definition of a record, for Open Records Act
- 51 O.S. 2011, 24A.3

‘Record’ means all documents, including, but not limited to, any book, paper, photograph, microfilm, data files created by or used with computer software, computer tape, disk, record, second recording, film recording, video record or other material regardless of physical form…

First point: don’t be afraid of an open records request you receive as a school employee, these are common and will continue

Every document in a school is not a public record, but we need to look at this definition

MY COMMENT: THE LONG URL ON THIS SCREEN IS A PERFECT PLACE TO SHARE/USE A URL SHORTENER AS WELL… URL IS FAR TOO LONG TO TYPE…

The problem with emails, corporate America finds it very easy to archive everything (all that goes out or comes in)
- in schools, we don’t have to do that

Search fees: when are they allowable?
- “if the reuest is solely for commercial purpose, or would clearly cause excessive disruption of the essential functions of the public body”
- this doesn’t mean you can’t charge for the document, it means there can’t be a ‘search fee’ to go find something

law says you get reasonable time to respond to requests, good idea is to talk directly to requesters and find out exactly what they want / are looking for (their request may be broader than they need)

If you have a superintendent who conducts much of his business with board members with his personal email account, then his email records are definitionally open records
- this is not a question of access, it is a question of whether someone files an open records request

Citing law on “school-business electronic communications on privately owned electronic devices”

Penalties for Open Record Act violation
- violation is misdemeanor, up to 1 year in jail, visiting days are usually on Thursdays
- I don’t encourage you to take the ‘asking forgiveness’ path as people sometimes encourage in education

Question from the audience: What is my responsibility as a district tech director if someone seeking an open record request for a teacher’s personal email account if they conduct business with it
- indivdiuals can

Question from an audience participant who says “We’ve chosen not to archive email in our district. Is that OK?”
- answer: There is an attorney general opinion that says schools should follow state law, you need to follow law and your policy
- there can be policies for keeping emails for 30 days, you need to determine what policy you’ll have in place
- there are requirements for keeping financial records for a long time
- there is not an exact answer about how long you must keep a document (depends on what the document is, plus your local policy)

Email privacy / IM privacy

There is no right to privacy on school district on email systems
- school district owns the system, the employee does not

For me (Colin Webb) as a tech director, for me to retrieve an email from an employee’s account the superintendent must sign off on that request (campus principals can’t, our policy specifies it must be escalated to the level of the superintendent)

multiple subjects: try to separate them because of discovery
- an open records investigation can bring up unrelated issues

Acceptable Use Policy

Ramifications

I tell my teachers NOT to vent with email: “speaking into the air” does not create a public record

Say it with me: “Protect Your Password”
- don’t give others your password

I FOUND THESE ARTICLES AFTER GLEN REFERENCED SOME RECENT NEWS IN OKLAHOMA REGARDING SCHOOL PASSWORD ISSUES:

Tulsa Public Schools starts search for new athletic director” (27 Jan 2011)

During an interview with a school district attorney, Spring and assistant athletic directors Latricia Pruitt and Jon Wheeler reportedly disclosed that they had accessed Murphy’s e-mails – not her business account – “using a password they had located within Ms. Murphy’s vacated office.” Pruitt was suspended but has since been reinstated. After termination proceedings had started against Wheeler, he agreed last week to resign in exchange for being paid the remainder of his annual salary and benefits. Murphy was initially reinstated, but was terminated in December after she failed to report to new assignments she was given in August and September.

Tulsa Schools, suspended assistant AD Wheeler make resignation agreement” (18 Jan 2012)

During an interview with a school district attorney, Spring, Pruitt and Wheeler reportedly disclosed that they had accessed Murphy’s personal emails – not her business account – “using a password they had located within Ms. Murphy’s vacated office.”

Always and Forever (email can be forever)

Private Accounts
- can be a problem when people forward their Facebook to district email

Voice Mail
- it creates a record
- you need a policy about this

Recording law in Oklahoma: as long as 1 party knows things are being recorded, you can legally record
- had a recent example where a parent recorded an administrator “unloading” on them, that made News0 later

Cell Phones: who pays? who owns?
- IRS no longer requires individuals to pay a percentage of cell phone costs if you use a cell phone partly for personal use
- regardless of who owns the account and who pays, it is still subject to open records if you create a text, IM, anything else
- you are creating a digital track’

Be aware of geo-tagging of images, those include information about where you were when you took the photo

Filtering policy
- tell your friends not to email you inappropriate messages and images (NSF = not safe for work)
- beware of political emails during election cycle

Social networking sites
- we’ll take more about this tomorrow

There is some consequence for having social media interactions between students and schools

Layshock V Hermitage School District 2007-2012
- student create fake MySpace page of principal, Court rules school could not discipline student. (SC declined)

Doniger V Niehoff 2008-2011:
- Student Avery …

2 cases of teachers
- Mount Dora, Florida: Teacher of the year suspended for anti-gay marriage posts on personal Facebook page, re-instated 4 days later
- Barrow County, GA: Ashley Payne fired for posting picture of herself holding a beer on Facebook when she was vacationing in Germany (school fired her for setting a bad example by drinking)


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  • http://www.creatinglifelonglearners.com/ Mathew

    I agree with some of what the presenter said, other bits seem to retell rumors and create fear.  For example, I’m still looking to find a case of Disney suing a school over showing a movie in class though I hear the rumor about it all the time (although he’s right that movies shouldn’t be shown as entertainment in school).  Also, I’m not sure why he makes a distinction about performances where fees are charged…not charging a fee reduces damages but doesn’t give one a right to ignore copyrights.  

    I wish that more copyright presentations and teachers in general would take a look at the Fair Use Doctrine itself.  It only has four points and isn’t that hard to understand.  If a project satisfies the four prongs of fair use then teachers can feel comfortable proceeding with a particular project. 

  • Heather Weaver

    Hello, Dr. Fryer! 
    This was a lot of information to take in at once. I realized as I was reading your post that I am unclear on the policies of my own school system regarding social media. I know that we have had teachers placed on leave and reprimanded for communicating with students on Facebook. The information you have presented asks much deeper questions. I was most intrigued by the email issue. 

    We have district wide email that is used for school system business as well as communicating with family. Obviously, there is no right to privacy on the school district owned email. However, one of the questions posed by an audience member perplexed me. Can an open records request be made for a teacher’s personal email account if they conduct business with it? The answer was individuals can. Does that mean a parent could possibly request to see the personal email of a teacher if she used it for school business? I like the comment towards the end where the presenter tells the audience that he advises his staff to “vent into the air” because it does not create a public record. Good advice!
     
    A summary of my posts to your blog will be on, Heather Weaver’s EDM 310 Class Blog, by February 12th. 

    Thank you for all of the thought provoking information.

    Heather Weaver

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