Why Lakoff still matters: Framing the debate on copyright law and digital publishing
First Monday

Why Lakoff still matters: Framing the debate on copyright law and digital publishing

In 2004, linguist and cognitive scientist George Lakoff popularized the idea of using metaphors and “frames” to promote progressive political issues. Although his theories have since been criticized, this article asserts that his framing is still relevant to the debate over copyright law as applied to digital publishing, particularly in the field of scholarly journals. Focusing on issues of copyright term extension and the public domain, open access, educational fair use, and the stewardship and preservation of digital resources, this article explores how to advocate for change more effectively — not by putting a better “spin” on proposed policies — but by using coherent narratives to frame the issues in language linked to progressive values.


Copyright term extension and the public domain
Open access
Educational fair use
Stewardship and preservation




In 2004, linguist and cognitive scientist George Lakoff popularized the idea of using metaphors and “frames” to promote a progressive political agenda. His theories, based on the early work of sociologist Erving Goffman, explained how choice of language in general, and metaphors in particular, allowed for the structuring of issues to reflect progressive values. This article maintains that Lakoff’s theories are still relevant to the effort to construct winning strategies, and that their application to issues of copyright law and digital publishing can lead to more effective political advocacy.

Lakoff defines frames as “mental structures that shape the way we see the world.” [1] The two primary frames used by Lakoff, referred to by the metaphors “strict father” and “nurturant parent,” represent the worldviews held, respectively, by conservatives and progressives. Lakoff’s nurturant parent embodies values of equality, opportunity, openness, and concern for the general welfare of all individuals. Under the progressive economic model, markets should serve the common good and democracy (Lakoff, 2004; Lakoff and the Rockridge Institute, 2006). The strict father frame, on the other hand, centers on issues of authority and control. The moral credo expresses itself in the belief that if people are disciplined and pursue their self–interest they will become prosperous and self–reliant. The favored economic model is that of a free market operating without government interference (Lakoff, 2004).

Although Lakoff does not directly address copyright law or the ways in which the Internet has changed information access and scholarly publishing, his frames explain some of the reasons behind the divide over how to adapt print–era laws to the digital era. Generally speaking, those who want information to be free (that is, freely shared) align themselves with ideals of the nurturant parent frame. Those who want information to be, above all, profitable, support the language and values of the strict father frame.

According to Lakoff’s theories, the legislative and judicial wrangling over copyright law issues is exacerbated by the fact that the two sides — progressives favoring openness and conservatives wanting proprietary rights — are not speaking the same language. While strict father adherents have stated their case based on values — that is, the right to make a profit, allowing the free market to operate, and protecting ownership in intellectual property — those in the nurturant parent corner have virtually ignored their own values and instead tried to make strictly rational arguments based on facts and figures — e.g., skyrocketing journal prices, the wording of open access policies, and actual versus purported market effects. While conservatives have constructed a single, coherent narrative centered around content providers and their property, progressives have instead built “issue silos,” isolating one copyright issue from another — the political equivalent of the database silos found in academic library Web sites. Vaidhyanathan (2004) recognized this problem when he observed that, “activist organizations … are struggling to accurately define the ‘public interest’ in copyright and debating how best to articulate the issues to a diverse public.” The debaters in this case include educators, library associations, content providers that support open access, researchers, lawyers and law professors, and organizations such as Public Knowledge and the Electronic Freedom Foundation.

All this is not to say that the progressives’ arguments aren’t justified, but rather that they aren’t being made effectively. The dots are there, but they aren’t being connected.

This article asserts that the four copyright issues discussed herein — copyright term length and public domain, open access, educational fair use, and stewardship and preservation — are interrelated and belong to a single progressive narrative centered on public benefit. This narrative encompasses the progressive values of empathy, caring, fairness, providing for the greater public good, and ensuring opportunities for future generations. This paper further asserts that progressives can advocate more effectively for these issues by emphasizing values and reframing their arguments accordingly.

Lakoff’s point is not that we win if we choose the best slogan — it’s about connecting with emotions and values held by individuals at a subconscious level. Mere facts and figures that don’t align with an individual’s values will result in cognitive dissonance — they won’t be persuasive or effective in changing anyone’s mind. If, however, the facts and figures are framed in the context of a cohesive narrative that recognizes progressive values and evokes appropriate emotions, the result should be changes in both public perception and legislative outcomes.



Copyright term extension and the public domain

The Copyright Clause and the original 1790 U.S. copyright statute represented a balance between the values of the nurturant parent and the strict father. These values were played out sequentially, with creators of works first being given the incentive of an exclusive right of exploitation, and then, after a time, relinquishing that right for the greater good.

The metaphorical expanse of the public domain existed as the end game for creative works no longer constrained by copyright, a gift of free access to knowledge, an “intellectual reservoir,” promoting rich and diverse deliberation “without any impediments,” where anyone could participate, “regardless of their market power.” [2] The public domain enabled “creativity built on a bounty inherited from the past,” the principle behind Sir Isaac Newton’s claim of “standing on the shoulders of giants.” [3] In England, as early as 1813, Lord Camden spoke in support of a public domain when he told the House of Lords that,

“If there be any thing in the world common to all mankind, science and learning are in their nature publici juris, and they ought to be as free and general as air or water. … Why did we enter into society at all, but to enlighten one another’s minds, and improve our faculties, for the common welfare of the species?” [4]

Lewis Hyde lyrically described the process of a limited term copyright followed by release of creative works into the public domain as “a contraction on behalf of the few, then a dilation on behalf of the many. This is the heartbeat of knowledge in a free republic.” [5] This is a frame that should be remembered.

The evolution of copyright laws in the twentieth and twenty–first centuries tell a different story, however, so that today the concept of the larger public good is little reflected in U.S. law, court cases, and the mainstream media. Even on the Internet, the contraction on behalf of the few makes itself felt through the Digital Millennium Copyright Act, End User License Agreements, and click–through licenses. The reigning value is content provider profit obtained through a “normative view of copyrights best described as ‘absolute control’.” [6] Incentive is not just step one; it is the only part of the equation. The concept of greater public good has fallen prey to the strict father’s negative association of need with moral weakness.

The 1998 Sonny Bono Copyright Term Extension Act (CTEA) and the 2003 case of Eldred v. Ashcroft (537 U.S. 186) which affirmed the CTEA, made no mention of copyright law serving to benefit the public. When Ruth Bader Ginsburg, speaking for the majority in Eldred, referred to the CTEA as encouraging “copyright holders to invest in the restoration and public distribution of their works” [7], she wasn’t talking about incentivizing the authors of creative works, but rather about those who publish the works for profit.

The mainstream news media has been complicit in accepting the strict father frame of the content providers’ right to maximize profit regardless of the consequences. News stories since the passage of the CTEA tend to brand any unauthorized use of copyrighted material as “piracy,” seldom mentioning the public’s right to access information, and forgetting that copyright law also includes legitimate exceptions, such as fair use (see, e.g., Dames, 2006; Puzzanghera, 2007).

Stacy McDonald argued that the expansion of copyright law was driven by the practice of looking at copyrighted works as property “valued for its profitability, rather than its contribution to education, public discourse, or intellectual enlightenment.” [8] Under the profitability frame, a strong copyright law enables a growing market for informational goods focused on control rather than public benefit (Elkin–Koren, 2002). The metaphor of property allows the argument to be made that intellectual works, like any other kind of property, can be “fenced off and privatized.” [9] Release of works to the public domain is seen as wasteful, since it halts the flow of profit to the content provider.

The frame evoked by strict father conservatives is essentially that of the American Dream: work hard, earn money, own property (and don’t let anyone take your property away from you). In order to change the frame, the focus needs to be shifted in two ways: first, to emphasize the public empowerment value of the public domain and free flow of information, and second, to stress the fact that copyright expansion primarily benefits special interests.

Some of the best language representing that shift and defending progressive values can be found in the Eldred dissents. Supreme Court Justices Stephen Breyer and John Paul Stevens both opined that the CTEA was invalid as applied to existing copyrights on the ground that it frustrated the overriding purpose of the Copyright Clause: public access to creative works [10]. Justice Stevens wrote that “such retroactive extensions do not even arguably serve” the purposes of the Copyright Clause — motivating creative activity and allowing public access after the limited period of exclusive control expires [11]. The Clause “assumes that it is the disappearance of the monopoly grant, not its perpetuation, that will, on balance, promote the dissemination of works already in existence.” [12]

Justice Breyer added that the requirement of seeking permission to use older works that, under the CTEA, must stay under copyright for an additional 20 years, inhibited the ability of researchers of all kinds “to make the past accessible for their own use or for that of others.” [13] He then went on to say that,

“[The CTEA] threatens to interfere with efforts to preserve our Nation’s historical and cultural heritage and efforts to use that heritage … to educate our Nation’s children. It is easy to understand how the statute might benefit the private financial interests of corporations or heirs who own existing copyrights. But I cannot find any constitutionally legitimate, copyright–related way in which the statute will benefit the public. Indeed, in respect to existing works, the serious public harm and the virtually nonexistent public benefit could not be more clear.” [14]

Note that Justice Breyer’s argument links the issue of copyright term duration with issues of education and preservation of intellectual works for future generations, resulting in a cohesive narrative built around public benefit. This is exactly the type of values–based rhetoric that Lakoff advocates.

But for all the eloquence and emotion of the justices’ opinions, they were a minority of two, and nothing has happened since Eldred to shorten copyright terms. While it is true that open source software licenses, creative commons licenses, and open access (discussed below) have developed as ways to circumvent or operate legally alongside overly restrictive copyright laws, guaranteeing rights rather than taking them away, those means are not always viable or available to everyone. In fact, as Lawrence Lessig pointed out, “Never in our history have the few exercised more power over our culture than now. Nobody noticed this happening; nobody acts effectively to stop it.” [15] The question arises, then, as to why progressives haven’t been able to gain traction on the issue of limiting copyright and expanding the public domain.

One answer is to point to the opposition. Certainly Big Business knew they had a friend on the Eldred Court in Ruth Bader Ginsburg, whose original nomination to the Supreme Court was supported by the U.S. Chamber of Commerce (Rosen, 2008). And certainly, Big Media or Big Content (as the publishing and other media conglomerates have been termed by progressives, evoking Orwell’s Big Brother) has Big Money that has been used for Big Lobbying (see, e.g., McDonald, 2007; Lethem, 2007). Siva Vaidhyanathan pointed out the practical difficulties of going up against the content providers: “Organizations of librarians and scientists have taken stands against odious policy proposals, but they are matched against lawyers for Microsoft and Disney. It is not a fair fight.” [16]

But there is more to it than that. Aside from the Supreme Court dissents quoted above, progressives have failed to make the case for a convincing value–based narrative and to frame their facts and legal arguments in light of such a narrative. No emotional appeal was made based on the CTEA’s consequences. Nurturant parents — charged with protecting their collective children’s future — should have pointed out that the legislature was effectively stealing something away from the public — that in the name of profit, they were privatizing information that rightfully should have been freely shared through entry into the public domain. Where the government was supposed to care and to act in a way that would empower the public, it not only turned a blind eye, but handed the future over to special interests. When progressives did not make these arguments, but relied only on reason, they were not able to effectively advocate on the public’s behalf (Lakoff, 2008) [17].

Secondly, with strict father conservatives largely controlling the rhetoric of the debate, those with nurturant parent values have been put on the defensive and fallen into the trap of speaking the language of the opposition. In Lakoff’s 2004 book, Don’t Think of an Elephant!, he related the story of his experience as a teacher. When he told his class, “Whatever you do, do not think of an elephant,” he knew that they would immediately think of an elephant [18]. The word evoked a frame — which might be news story about an elephant, or a circus, or a movie — and was then defined by that frame. So, to negate the frame is also, paradoxically, to evoke the frame. The same principle applies when progressives argue against conservative talking points by repeating conservatives’ metaphors and frames. Using strict father rhetoric lends it legitimacy. Vaidhyanathan (2004) recognized this problem when he asserted that, “We make a grave mistake when we choose to engage in discussions of copyright along the terms of ‘property’.”

In discussing the kind of change progressives should support regarding copyright term length, Lessig compared past and present and stated that, “in 1998, there was no real political awareness surrounding this question; nor was there any real appreciation of what the cost of these extensions is. In 2008 we certainly would have that political awareness.” [19] He then advocated not only shorter terms, but also a requirement that the copyright be renewed every five years from the initial date of publication, so that the author would have to signal a desire to continue protection of the work [20]. Stephen Breyer, before joining the Supreme Court, also suggested that the copyright term be cut back, rather than extended, noting that, “there is little to suggest any net gain in extending book protection beyond the time horizon that the publisher uses when he decides whether a publication can pay its way, and this … probably does not exceed fifteen to twenty years … .” [21]

If, as expected, the issue of copyright comes up in the current Congress, the argument for shorter terms should not be made defensively, but rather in terms of progressing toward reasonable balance. While the fight may not be an easy one — President Obama’s deputy attorney general, David Ogden, was one of the lawyers who supported the CTEA in the Eldred case — progressives can win public support by emphasizing the public benefit of opening the flow of copyrighted material into the public domain. Special interests should not be able to deprive the many for the benefit of the few. This is an emotional, populist appeal, but it is an honest one.

Lakoff advises progressives not to shy away from proclaiming that they have values. Conservatives do not have a monopoly on the word — it just needs to be reframed.



Open access

The open access movement is associated with the metaphor of an information commons. Lessig defined the commons as “a resource to which everyone within a relevant community has equal access.” [22] The resources in an information commons cannot be overused or depleted as Thomas Jefferson pointed out in his well–known comparison of shared ideas to a shared illuminating flame [23], so the challenge is not to conserve, but to “induce provision.” [24] The commons reflects the nurturant parent’s positive values and belief in “peaceful sharing and cooperation, evocative of an earlier time of community and non–alienated labor.” [25] In this commons, researchers can “read, download, copy, distribute, print, search, or link” to the full text of articles, “without financial, legal, or technical barriers other than those inseparable from gaining access to the Internet itself.” [26] The open access movement therefore comports with the nurturant parent’s interest in equal opportunity and freedom from ignorance. Like the public domain, open access empowers individuals by giving them the means to be better informed. An informed public is the prerequisite of a functioning democracy.

On the issue of open access, progressives have based their advocacy on claims of unfair price increases for electronic serial subscriptions to scholarly journals, and on the restrictive access provisions in licensing agreements. The fact that journals are distributed and licensed largely by just a few commercial publishers means that those publishers have free rein not only to raise prices, but to aggregate popular journals with those less so, and rent their product “as is,” making no warranties as to accuracy or completeness (see, e.g., Besser, 2001; McGuigan, 2004; Farb, 2006; Borgman, 2007). To further increase their leverage, many commercial publishers insert nondisclosure clauses into their contracts, prohibiting the libraries they sell to from discussing the terms with other institutions, and thereby limiting their bargaining power (Farb, 2006) [27].

Because open access originated with those who supported the free flow of information, the rhetoric of this debate also began with underlying nurturant parent values. For example, in February 2008, when the Harvard University Faculty of Arts and Sciences voted to make their scholarly articles available for free in an open access repository (with an opt–out waiver available upon request), their press release noted that, “at Harvard … we have an essential responsibility to distribute the fruits of our scholarship as widely as possible” (Mitchell, 2008). Ann Wolpert, director of libraries at the Massachusetts Institute of Technology (MIT), explained the rationale behind their open access policy by stating that, “in the quest for higher profits, publishers have lost sight of the values of the academy” (Timmer, 2009). Even better, the Preamble to the September 2008 Brisbane Declaration states that, “The participants recognise Open Access as a strategic enabling activity, on which research and inquiry will rely at international, national, university, group and individual levels” (Suber, 2008b).

Peter Suber of the Scholarly Publishing & Academic Resources Coalition (SPARC) claimed that “in more and more countries, an aroused public is ready to fight,” and that this is “something we haven’t seen in the entire history of copyright law” (Suber, 2008a). The outcry raised in the U.S. against the 2008 Fair Copyright in Research Works Act (originally H.R. 6845; reintroduced in 2009 as H.R. 801) is one such instance of the fighting spirit. This proposed legislation seeks to overturn the 2008 National Institutes of Health (NIH) open access policy and benefit publishers by prohibiting any government funding agencies from requiring any transfer of rights (such as copyright) as a condition of funding under certain circumstances. While the bill is supported by the Association of American Publishers (AAP) and the American Association of University Presses (AAUP), the opposition so far includes the American Library Association, Association of College and Research Libraries, Public Library of Science, 46 U.S. law professors who specialize in copyright law, and 33 U.S. Nobel laureates in science (Suber, 2008a). The latter made an appeal for the public benefit purpose of the NIH policy in stating that,

“The clientele for this knowledge are not just an esoteric group of university scientists and researchers who are pushing forward the frontiers of knowledge. Increasingly, high school students preparing for their science fairs need access to this material so they too can feel the thrill of research. Teachers preparing courses also need access to the most up–to–date science to augment the inevitable out–of–date textbooks. Most importantly, the lay public wants to know about research findings that may be pertinent to their own health diagnoses and treatment modalities.” (Baltimore, et al., 2008).

As of this writing, Congress has not acted on the bill.

Suber (2008c) outlined policy reasons for supporting open access to publicly funded research and extending the NIH requirement to all federal funding agencies. Referring to the ongoing calamities in global warming, the economy, and energy consumption, Suber stated that,

“More than ever the nation depends on the results of new research, and more than ever it depends on fixing our dysfunctional research dissemination system. … Science thrives when we lift restrictions on access and use, and suffers when we tighten them. … it doesn’t follow that we should subordinate the public interest in science and research to the narrow interests of academic journal publishers, who wish to be the sole outlet for publicly–funded research … .”

Suber’s frame characterizes open access as necessary for solving the nation’s most pressing problems, and the denial of open access as dangerous and grasping. This frame applies as well to issues of copyright term extension and the public domain, previously discussed, and educational fair use and preservation of the scholarly record, which will be discussed later in this paper.

Lakoff states that the one moral value behind all progressive policies is empathy. One form that such empathy takes is the government’s obligation to care about its people (Lakoff, 2008). Caring, in turn, entails protecting and empowering individuals. Ideally, copyright laws should protect individuals from overreaching by special interests, and empower people by increasing the flow and dissemination of knowledge. All copyright issues related to digital publishing, in fact, fit within this narrative: empower individuals by ensuring access to information, and constrain special interests when they unreasonably try to restrict access.

While not a complete solution to the problem of overbroad copyright protection, open access must be preserved and encouraged. Legislative efforts to undercut open access must continue to be opposed, and new legislation should be introduced as Suber suggests, extending the principles of the NIH policy to all government funding agencies. The issue is not just limited to the U.S. As Willinsky notes, open access, in combination with the use of open source software, “represents a commitment to a larger public sphere,” and “holds the promise of a more global exchange of knowledge” (Willinsky, 2005).



Educational fair use

The sharing of knowledge is also at the heart of educational fair use. Lawrence Lessig referred to fair use as “uses that themselves involve copying, but which the law treats as unregulated because public policy demands that they remain unregulated.” [28] The public policy behind educational fair use is a strong one, and educational fair use would seem, on the surface, to be the easiest issue for progressives to frame, the one where they should triumph hands down. The fair use statute itself specifically lists “teaching (including multiple copies for classroom use)” among its examples [29]. Allowing teachers to make copies without being liable for infringement levels the playing field among rich and poor schools, giving all students a better chance at quality education. Nurturant parent values of fairness and equality should have stood unchallenged in the legislative and judicial arenas. But of course they didn’t.

One of the problems is that the fair use statute is awkwardly worded. The most commonly articulated sentiment about fair use is that the law is vague, uncertain, and confusing to both lawyers and laypersons (see, e.g., Colbert and Griffin, 1998; Crews, 2001; Silberberg, 2001). Another problem is that the statute hands conservatives a ready–made objection in each case of copying — that the use is not fair because it negatively impacts the potential market for the work [30]. The strict father frame makes no exception for equality in education; the profit motive still applies. Lastly, by purportedly championing flexibility, the statute imposes on teachers the burden of having to second–guess judges in interpreting the law themselves.

The cases that have been decided as of this writing have not been favorable to schools, weighing the availability of a mechanism for paying permission fees more heavily than the opportunity for students to have free access to excerpts of those resources deemed best by their teachers. The 1996 Sixth Circuit case of Princeton University Press v. Michigan Document Services, Inc. (99 F. 3d 1381), held in an 8–5 decision that photocopying of copyrighted materials by a commercial copier at the request of instructors did not constitute fair use. Because the copier made a profit, the use was found to be commercial rather than educational. Harm to the market was shown by the publisher’s loss of licensing fees not paid because the defendant claimed fair use.

As in Eldred, it was left to the dissenting judges in Michigan Document Services to speak out for the principle that copyright law exists to benefit the public, not special interests. Chief Judge Boyce Martin declared that, “the majority’s strict reading of the fair use doctrine promises to hinder scholastic progress nationwide.” [31] Judge Merritt stated that, “the essence of copyright is the promotion of learning — not the enrichment of publishers.” [32] The right of instructors to make judgments as to the best way to teach was supported by Judge Ryan, who stated that,

“Society benefits when professors provide diverse materials that are not central to the course but that may enrich or broaden the base of knowledge of the students. Society is not benefited by establishing a presumption that discourages professors from exposing their students to anything but complete original works even when most of the work is irrelevant to the pedagogical purposes, and students are not benefited or authors/publishers justly compensated if students are required to purchase entire works in order to read the 5% or 30% of the work that is relevant to the course.” [33]

Educational fair use has also been impeded by the bullying posture taken by the Association of American Publishers (AAP), whose threats of litigation have caused a chilling effect at many academic institutions. In December 1982, publishers backed by the AAP filed suit against New York University (NYU) for photocopying materials for classroom use without first requesting permission and paying permission fees. The case settled before going to court, with NYU agreeing to adopt the AAP’s restrictive Classroom Guidelines as the formal standard for fair use [34]. In the wake of that settlement, the publishing industry threatened hundreds of colleges and universities with litigation if they didn’t adopt their guidelines as NYU had done (Crews, 2001). Carol Silberberg framed the issue well when she noted that, “allowing publishers to determine what is fair use provides incentives for them to appropriate greater control while reducing public access.” [35] This notion was born out when threats of litigation were followed by the filing of numerous lawsuits in an attempt to stop copying for educational use unless a permission fee was paid to publishers beforehand (Crews, 2001).

The electronic resource licensing scheme, discussed earlier, presents yet another roadblock to full implementation of educational fair use, and illustrates the practical primacy of the commodification frame over the public access frame. Since access to digital resources controlled by publishers is mostly leased rather than sold to libraries, the doctrine of contract preemption applies, effectively overriding federal copyright law (Braman and Lynch, 2003). Parties to the license must negotiate which, if any, provisions of copyright law will still be in force under the terms of the contract. If the publisher has more bargaining power than the library, as is usually the case, the right to make copies, to put scholarly articles on e–reserve, or to provide links to articles through course management systems may be prohibited. As of this writing, no court has ruled on the issue of whether a claim of fair use would survive a challenge to such terms. However, there is a chance that that may soon change.

In April 2008, three academic publishers filed suit against officials at Georgia State University seeking an injunction against the school. The publishers claimed that their copyrighted material had been made available to Georgia State students through e–reserves, department Web pages, and hyperlinks on online course syllabi without the publishers’ permission. To their credit, Georgia State University did not back down, settle, or admit fault as other schools have done. Instead, in June 2008, an answer was filed in federal court stating (among other claims and defenses), that “Plaintiffs’ claims are barred by the doctrine of fair use pursuant to 17 U.S.C. § 107, including the fact that any alleged use of copyrighted materials was for the purpose of teaching, scholarship or research and for nonprofit educational purposes” (Cambridge University Press v. Patton, 2008).

The Georgia State faculty and library staff have the advantage of being able to claim that they were following guidelines promulgated by the school’s Regents Copyright Committee. In 1997, that group published clear guidelines that define as fair use the posting of journal articles or book chapters on password–protected sites, as long as the use was for pedagogical purposes and not simply to avoid purchasing a work (Regents Copyright Committee, 1997). Further, since no commercial copiers were involved, publishers cannot challenge Georgia State’s clear educational purpose in making the works available to its students.

The Patton case, which is still pending as of this writing, will be watched closely by both publishers and educators, as its outcome will influence how digital resources are made available in the future. A victory for Georgia State University would benefit students, instructors, and libraries, and encourage publishers to come up with better economic models. The principle articulated by Ann Bartow, speaking in the context of making multiple print copies for classroom use, that “only through expansion and defense of the educational fair use doctrine can the unfettered right to distribute … supplemental written materials to our students be preserved” should extend to digital materials, as well [36].

Framing educational fair use in nurturant parent terms entails emphasizing the public empowerment aspect of the issue, and opposing the practice of content providers viewing scholarship as a mere commodity like any other. Barack Obama employed the language of nurturant parent values when he stated that failing to improve classroom instruction was “morally unacceptable for our children” (Associated Press, 2008). The corollary to this statement is that publishers act immorally in raising unfair obstacles to information access for students.

One solution to this problem would be an amendment to the fair use law, applicable to fair use for non–profit educational purposes. The law should set clear, bright–line standards that allow for predictability, and reflect the values of a society that puts the education of its children first. The amount of copying permitted should not be so restrictive as to hamper scholarship and academic freedom, nor so expansive as to make passage of the law impossible. A reasonable parameter would be one–third of any text–based resource such as a book or scholarly journal.

The issue of helping students is one that can appeal to the nurturant parent side of all parents across the political spectrum, including those in the legislature — especially since the amendment suggested would involve no new taxes or government expenditures. This is an issue that can be won. Parents want to empower their children. They do not want special interests interfering with their children’s education, blocking access to the tools they need to succeed. Progressives should take heart from Pamela Samuelson’s assertion that, “the content industry is deluded if it thinks there are no limits on the controls it can exercise over the uses of digital content.” [37]



Stewardship and preservation

The frame of stewardship and preservation of digital resources speaks directly to nurturant parent values. Stewardship, in the context of digital publishing, is defined as “action taken in trust or on behalf of another … with the aim of ensuring the integrity, authenticity, and the sustainability of resources, and thus their future value and use” (Farb, 2006). Librarians are the natural stewards of the scholarly record, concerning themselves not only with selecting and providing access to the best research materials that their budgets allow, but in preserving those materials for the use of future generations. Public libraries, in particular, exemplify ideal nurturant parent behavior by allowing anyone, regardless of race, gender, nationality, economic status, or religion, to borrow books and access information, at little or no cost, and elevating care of the community — current as well as future — ahead of private profit. As Paul Courant (2006) noted, libraries “hold, catalog, and curate expensive material that not everyone can afford to have.”

In the print–only era, the first sale doctrine facilitated the role of preservation of scholarly works. Once a work was sold, the purchasing library was free to loan out the work, and keep it in the library’s collection for as long as it wished (or as long as the paper held out). But the transition to digital resources and licensing, especially in the area of scholarly journals, changed the rules. As stated previously, when works are licensed instead of sold, copyright law applies only if it is expressly made part of the license as a result of contract negotiations. A 2005 study of journal licensing in U.S. academic libraries by Sharon Farb (2006) found that license agreements “routinely prohibit preservation, copying, archiving, or perpetual access.”

The continuous availability of the scholarly record is of prime importance to researchers and to society as a whole. Prudence Adler, of the Library Copyright Alliance, testified before the U.S. House of Representatives that, “If a license does not permit the preservation of copyrighted works and a library cannot exercise fair use due to the license terms and/or technological controls, copyrighted works will be lost to future generations.” [38] And while Google Book Search has taken on the task of digitizing the world’s books, the settlement agreement still awaiting final federal court approval is far from ideal. The proposed agreement makes no mention of contingencies for database ownership should Google cease to exist, be bought out, or merge with another company, and, more disturbing still, gives Google the right to exclude “particular Books from one or more Display Uses for editorial or non–editorial reasons.” [39] As Rick Prelinger, president of Internet Archive, pointed out, “when you start to see a single point of access developing for world culture, by default, it is disturbing” (“Google Settles Scanning Suit,” 2008). All the more so when that single point is a private, commercial enterprise.

The issues of stewardship and preservation tie into the same narrative of freeing intellectual works from the constraints of privatization and commodification as the issues discussed earlier in this paper. And as has been the case for proponents of shorter copyright terms, the public domain, open access, and educational fair use, libraries, too, in their traditional role as guardians and providers of information resources, have been met with strong opposition from content providers. Bartow noted that,

“[I]t is apparent that publishers have been deeply dissatisfied with the extensive use that libraries and library patrons could make of copyrighted works in ink and paper formats after simply remitting the initial purchase price. Digitalization has given publishers an opportunity to restructure their relationships with libraries, and to force abandonment of all pre–existing norms in the new distribution mediums.” [40]

The fact that such norms exist, however, can be embodied advantageously in a values–driven narrative: libraries should be allowed to do what libraries have always done, and what libraries do best — empowering the public by acting as stewards in curating and preserving our cultural heritage.

Attempts to embody those values have been made in the drafting of model licenses and statements of best practices, such as those of the California Digital Library (CDL), International Coalition of Library Consortia (ICOLC), and National Information Standards Organization (NISO), all of which contain language pertaining to preservation and archiving. Since the matter is not one that can readily be dealt with through legislation, it is up to consortia and individual libraries to insist on favorable contract terms or no contract at all, taking the issue to the court of public opinion, when necessary.




Lakoff’s theories have come under criticism since they were first popularized in 2004. In most instances, this has been due to misunderstanding or mischaracterization of his work. For example, Rahm Emanuel and Bruce Reed wrote that Lakoff contends that Democrats lost (in 2004) “just because Republicans know all the right words.” [41] Marc Cooper described Lakoff’s Don’t Think of an Elephant! as a “feel–good self–help book” that suggests that “reframing American politics … is but a matter of simple wordplay” (Cooper, 2005). Steven Pinker derided Lakoff’s reliance on metaphors, stating that they can be “examined, doubted, or even ridiculed,” and adding that people are smarter than Lakoff gives them credit for being [42].

But Lakoff’s theories are more complex than the way his critics represent them. Even this paper does not claim to go into the depth that Lakoff does in describing how the mind works and how voters really reason; the point the author wishes to make is that we need to understand cultural narratives and the influence they have, and revise political strategies accordingly.

Reframing entails not just speaking the truth about political issues and rebutting conservative assertions, but presenting policies and stands on issues in a way that connects them to progressive values. As Lakoff noted, “language gets its power because it is defined relative to frames, prototypes, metaphors, narratives, images, and emotions.” [43] Policy positions therefore must be expressed through narratives and the frames they’re constructed of in a way that will resonate with people — not by coming up with catchy slogans, but by thinking through what our values are and how those values dictate policy.

That said, controlling the discourse is crucial. As Patricia Loughlan pointed out, “because the boundaries of intellectual property protection are never finally fixed, those boundaries are always a matter of contested political choice in which persuasion and rhetoric … can have substantive effect.” [44] And as Jessica Litman advised, “if you’re dissatisfied with the way the spoils are getting divided, one approach is to change the rhetoric.” [45]

Relying on Lakoff’s theories, this paper has attempted to show that the rhetoric of copyright law and digital publishing revolves around a single narrative based on the concept of public benefit. The first frame of that narrative is public empowerment. By increasing access to information — through shorter copyright terms that will allow more intellectual works to enter the public domain, through more open access, through an expanded notion of educational fair use, and by giving libraries the right curate and preserve digital resources — we increase the spread and growth of knowledge. The ability to research freely and widely benefits not just the individual, but society as a whole. This is a progressive, democratic notion: that not only the elite, but all people must have the opportunity to benefit from the scholarly learning that has come before us.

The second frame states that copyright laws are intended to benefit the public, not special interests. Scholarship is not a commodity like any other, and should not be hoarded away or priced beyond reason. If we are not allowed to “stand on the shoulders of giants,” if we do not insist on that right, we risk slowing the pace of progress and innovation, reinventing the wheel, and discouraging the brilliant minds of tomorrow.

Educational fair use, open access, the public domain, and the ability to archive and preserve digital scholarship are all under attack. With few exceptions, lawmakers seem to have forgotten that the purpose of copyright is “to make ideas available for human progress, not to lock them up” (Courant, 2006) [46]. And progressives, while increasingly vocal, are still relying on past strategies to lobby for change. By overlooking values and neglecting to give the emotional component its due, copyright progressives miss the big picture. The complete narrative needs to be told. End of article


About the author

Diane Gurman is a second–year graduate student in the Department of Information Studies at UCLA. This paper originated in a graduate course in Electronic Publishing, and was revised during an Independent Studies course, both with Dr. Christine Borgman.



I thank Dr. Christine Borgman for advice, comments, and encouragement. Thanks also to Angela Riggio and James Hixon for help with an earlier draft, and to Gary Stewart for giving me my first Lakoff book.



1. Lakoff, 2004, p. xv.

2. Birnhack, 2006, p. 85.

3. Hyde, 2005, p. 5.

4. Quoted in Rose, 2003, pp. 80–81.

5. Hyde, 2005, p. 27.

6. Bartow, 2003, p. 16.

7. Eldred, pp. 206–207.

8. McDonald, 2007, pp. 543–544, 551.

9. Hunter, 2003, p. 475.

10. Eldred, pp. 241, 245, 266–267.

11. Eldred, p. 227.

12. Breyer, in Eldred, p. 260, italics in original.

13. Eldred, p. 250.

14. Eldred, p. 266.

15. Lessig, 2005, pp. 229–230.

16. Vaidhyanathan, 2001, pp. 5–6; see also Litman, 2006; McDonald, 2007.

17. The progressives’ failure to sway Congress is demonstrated by the House and Senate votes on the CTEA. The bill in the House of Representatives (H.R. 2589) passed on a voice vote; the bill in the Senate (S. 505) passed by unanimous consent (http://thomas.loc.gov/cgi-bin/bdquery/z?d105:HR02589 and http://thomas.loc.gov/cgi-bin/bdquery/z?d105:SN00505).

18. Lakoff, 2004, p. 3, italics in original.

19. Lessig, 2006, p. 42.

20. Lessig, 2004b, p. 293.

21. Breyer, 1970, p. 329.

22. Lessig, 2004a, p. 228.

23. Jefferson stated that, “He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me” (quoted in Borgman, 2007, pp. 35–36; Hyde, 2005, p. 15; Vaidhyanathan, 2001, p. 24).

24. Lessig, 2004a, p. 229.

25. Loughlan, 2006, p. 223.

26. Bailey, 2006, p. 14.

27. While an in–depth economic analysis of the issues related to the publication and distribution of academic research is beyond the scope of this paper, the author notes that the nurturant parent model supports a worldview that includes government– and university–funded research, university–funded open access presses, and support for the creators of intellectual expression.

28. Lessig, 2004b, p. 142.

29. 17 U.S.C. § 107, parentheses in original.

30. 17 U.S.C. § 107(4).

31. Michigan Document Services, p. 1393.

32. Michigan Document Services, p. 1395.

33. Michigan Document Services, p. 1404, italics in original.

34. The AAP’s Classroom Guidelines (formally, the “Agreement on Guidelines for Classroom Copying in Not–for–Profit Educational Institutions with Respect to Books and Periodicals”) are very different from and go far beyond the fair use statute. They include such provisions as a requirement that complete works could be copied only if they were shorter than 2,500 words, that only 1,000 words or ten percent of longer works (whichever was less) could be copied, and that the instructor’s decision to photocopy must be spontaneous — meaning that the decision to use the work and its actual use be “so close in time that it would be unreasonable to expect a timely reply to a request for permission” (H.R. Rep. No. 94–1476, in Bartow, 1998, pp. 160–161). This last requirement is especially strange since it would seem to punish instructors who thoughtfully planned ahead.

35. Silberberg, 2001, p. 651.

36. Bartow, 1998, p. 212.

37. Samuelson, 2003, p. 45.

38. “Role of Fair Use,” 2006, p. 19.

39. Proposed Settlement, 2008, section 3.7(e).

40. Bartow, 2003, p. 78.

41. Emanuel and Reed, 2006, p. 20.

42. Pinker, 2007, p. 259.

43. Lakoff, 2008, p. 15.

44. Loughlan, 2006, p. 213.

45. Litman, 2006, p. 79.

46. So far, attempts to restate and expand fair use through legislation — including Representative Zoe Lofgren’s (D–CA) Digital Choice and Freedom Act of 2002, Balance Act of 2003, and the Freedom and Innovation Revitalizing U.S. Entrepreneurship (FAIR USE) Act of 2007, introduced by Representatives Lofgren, Richard Boucher (D–VA), and John Doolittle (R–CA) — have been unsuccessful. But at least these members of Congress are on the right track, framing the issue in terms of fairness, balance, and freedom.



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Editorial history

Paper received 9 January 2009; revised 4 April 2009; accepted 11 May 2009.

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This paper is dedicated to the Public Domain.

Why Lakoff still matters: Framing the debate on copyright law and digital publishing
by Diane Gurman.
First Monday, Volume 14, Number 6 - 1 June 2009

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