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"Safety" as a Cover for Academic Entitlement?

in defense of fair use in academic listservs

Forum: WMST-L
Date: 05/22/2012

On May 22, 2012, at 3:25 PM, [removed] wrote:

I noticed recently that some conversations about a conversation on prostitution that took place on the WMST list have been published on another website.

Should this be allowed without the consent of those involved in the conversation? It troubles me a little, I'll admit.

Hello WMST-L,

Since [removed] is expressing a concern about documents posted on my website, I'd like to respond here.

The website is a repository of *my own* posts to this listserv and other online fora. I do not re-publish anyone else's posts. It is not quite accurate to state that the "same conversations" are published.

My contributions to WMST-L are often written in response to others' comments, and may include quotations of other people's published statements on the list, with proper attribution, of course. There is no requirement in law or in academic or professional ethics that a permission or "consent" of the original author is necessary before her or his work can be quoted for the purpose of commentary or criticism.

In fact, law and ethics specifically encourage this because the freedom to directly quote from statements that one is commenting on or critiquing is essential to scholarship and democracy. I believe that it is immoral to require that one obtain "consent" of the original author to be quoted, as it stifles free exchange of ideas and silences dissent.

That said, it is possible that your statements may seem out of context, precisely because I only included my own posts and not your contributions to the list. If you prefer, I am willing to publish your posts to WMST-L in that discussion thread along with mine so that readers will have access to the entire discussion--but *that* I will only do that with your explicit permission.

I would also acknowledge that, while I don't think there is any problem with quoting others' published statements without permission or re-publishing my own posts to a listserv on my own website, I can make unintentional errors when quoting other people's words (e.g. misquoting them, forgetting to include attribution, or changing the meaning by decontexualizing it). If you feel that this has happened to your words, I'd like to correct it so please let me know.


Emi Koyama

Date: 05/22/2012

Responding to Susan and Sheila in one post to reduce inbox clutter.

On May 22, 2012, at 9:14 PM, Susan Hawthorne wrote:

I thought WMST-L was a closed list. It is illegal to post without permission. Even forwarding an email without permission is technically illegal. It infringes copyright as well as privacy.


A "closed list" is a list which screens would-be subscribers and admits only those who meet certain exclusivist criteria. WMST-L is not a closed list because anyone can subscribe to it. There cannot and should not be an expectation of "privacy" when posting comments to an open list that has thousands of subscribers, especially when the list is specifically professional and scholarly in nature.

You are correct to point out that materials published in an open list are protected by copyright. But copyright laws do not prevent people from quoting parts of published materials for the purpose of commentary or criticism: if it did, I'm sure every single nonfiction book published by Spinifex Press would be illegal as well.

I am not merely arguing that it is *legal* to quote other list members' comments; I am also arguing that it is morally and ethically wrong to require permission in order to quote other people's published comments.

On May 22, 2012, at 9:15 PM, Sheila Joy Jeffreys wrote:

I did not realise that parts of list conversations would be used in this way and it is a concern to me. It changes the nature of the exchanges so that I feel any comment on list needs to be of publishable quality, and there may not always be time for that.


I understand the concern, but this is a decision you will have to make: should you spend more time reviewing what you are sharing with the list to make sure that you can live with it, or post comments in a hurry and potentially embarrass yourself.

That said, most of us apply different levels of standards and quality control depending on where we are publishing our materials (academic journal, popular media, personal blog, etc.), and I do not think that readers expect "any comment on list to be of publishable quality" (if "publishable quality" means something that could be published in a more traditional medium).

Also: why should anyone feel entitled to shove their comments on other list members when they think they are such low-quality that they can't even stand by them or tolerate being publicly associated with them?


Emi Koyama

Date: 05/23/2012


On May 22, 2012, at 11:16 PM, Susan Hawthorne wrote:

Thanks for responding. There is also the consideration or moral right (nothing to do with morals or the right:-)). The recognition of moral right has two aspect: correct attribution; and secondly that the work not be used in a way that distorts the intention of the work's producer

In quoting others' comments, I strive to be considerate of their moral rights as you describe them. That does not mean that I never make unintentional errors, which is why I promise to address any concern about misuses of any quotes.

Protection of moral rights however is not absolute, and is limited by the doctrine of fair use, which quoting portions of published work for the purpose of commentary and criticism falls under.

Up until now I have written on the understanding that this was a forum to share information and discuss issues, not a space for material that might be published and made accessible for readers outside the list.

I can see how you might feel that way, but I don't think it is reasonable to expect discussions in a public, scholarly listserv with thousands of subscribers would be treated like private conversations among friends.

It also seems a bit hypocritical for members of this scholarly community to claim *our* space off limits to external commentary and critique when many of us habitually publish and comment on other texts produced by people who are not expecting to be researched as targets of scholarly inquiry and their lives. I feel that scholars' and researchers' investment in the maintenance of subject-object relationship between themselves and the world/people around them should be challenged.

Regardless, I am not even commenting on or critiquing other people's writings on my website. I am merely using the website as a repository for the same comments I have sent to the list, some of which happen to quote other members' comments.

On May 22, 2012, at 11:02 PM, Bronwyn Winter wrote:

Also, re the status of WMST-L and posts sent thereto: yes, it is not a 'closed' or 'private' list. While ethically listmembers should consult other listmembers before publishing their posts in whole or in part, legally I am not sure they have to, as long as the source is acknowledged (otherwise it would be a breach of copyright).


Yes, we need to seek the original author's permission in order to "publish" other people's posts, legally and ethically. But again I am not publishing anyone's posts; I'm publishing my own posts, which happen to include quotes. Quotes are properly attributed to the source, and in compliance with the fair use doctrine in U.S. copyright regime and with similar standards internationally.

If you are suggesting that we should "ethically" seek permission before quoting other people's posts, I strongly disagree. To normativize seeking of permission when none is needed (and especially to succumb to their request not to be quoted) reinforces the (apparently widespread) inaccurate perception that consent is necessary, and it stifles free exchange of ideas that is essential for scholarship and democracy. Of course, one is always free to ask for permission, but it is not and should not be treated as an ethically preferable approach.

There are cases I feel differently, for example when someone shares on the list her or his experience of violence or other traumatic and/or personal events. In such cases, there are ethical considerations for quoting such comments outside of the list that is distinct from the legal question. But I don't think I've posted any such materials on my website, even as part of a legally defensible quote.

Vast majority of conversations on this list however are not personal confessionals, but they have to do with research, pedagogy, program administration, and political and ideological discussions on women's/gender/sexuality/etc. issues (even though such discussions are officially discouraged). It makes no sense to demand that academic and professional exchanges to be treated like personal ones.


Emi Koyama

Date: 05/23/2012


On May 23, 2012, at 5:59 AM, Dionne, Kate wrote:

I too find this troubling. It feels entirely different to me to have the entirety of each thread archived (which is essentially publicly accessible) than to have bits and pieces of something I might have said quoted out of context.

Nobody should ever quote someone else's words "out of context" to misrepresent or distort the intent of the message. That may or may not be illegal depending on the circumstances but is clearly unethical. But that is a separate question from whether or not comments on this list can be quoted elsewhere.

Yes, if you take "no out-of-context quote" to an absolute level, *any* excerpting of *any* comment published *anywhere* might be considered "out of context"--for example, a paragraph quoted from a published book would lose the context of the overall message of the entire book--but applying such impossible standard makes no sense. We should all strive to avoid misrepresenting or distorting other authors' intent when quoting them, but it should not be construed as an absolute ban on any quotation without permission.

For me, a listserv like this is not the same as a scholarly publication or a public blog. I do not hold my comments up to the same standard as I would if they were published in a book or journal, or if they were blogged. I see them as part of a larger informal developing whole. To me, listserv conversations are in some ways a collaborative endeavor, with ideas shaped and revised and developed within a group. Part of the joy and wisdom of such a group is in the breadth of responses.

My posts often may skip particular points I might otherwise make because someone else has already covered them, or because I know someone will pick up on gaps in a preliminary idea, and thus will improve on my thinking. It feels worth floating ideas informally because I see my contribution as part of that larger whole, not as something to be measured on its own.

I also appreciate this aspect of the list, but I don't understand why it would be impossible to foster such collaborative endeavors without enacting drastic measures to restrict fair use. In other words: why are we so afraid of being associated and identified publicly with our underdeveloped ideas?

I would certainly understand the hesitation if this list was designed as a place to share our deeply intimate personal stories. But it is not. It is a public forum designed for us to exchange information, resources, and scholarly/political/ideological perspectives (although such discussions are generally discouraged unless they relate directly to research and pedagogy).

However, if the moderators choose to set up rules which allow such excerpting, I will of course abide by that. Equally, I would expect that others would abide by a moderators' decision to set rules which limit such excerpting. This is a community, which can set any rules it chooses, and ask all members to agree to abide by them or leave. This is why we all work to follow the rules for signatures, and post length, and topic choice. It's what we sign on for here.

I agree that members and moderators of this list are within their powers to require an adherence to such rule as a condition for participating in the list. However, that does not necessarily limit fair use: that is, while participants of this list can be expected to abide by such policy, it has no bearing on those who are not part of the list. As long as the list remains public or this large for that matter, someone off-list could easily obtain messages to WMST-L and quote from them just as they would quote any other published materials.


Emi Koyama

Date: 05/23/2012


On May 23, 2012, at 7:59 AM, [removed] wrote:

Sorry for the incoherence of my initial e-mail. [removed] That's one e-mail that I wouldn't want quoted online!

I was planning to do that, but I would be happy to include any corrections or clarifications if you want me to do so. See the end of this post for other options.

The thing is that this list-serv should really be a safe space for people to work through their thoughts about feminist issues.

I think this listserv can be a good, productive space for people to work through their thoughts about feminist issues. However it cannot be a "safe space" if what you mean by that is a space where you can say whatever you want without anyone outside of the list knowing about it. Even if we had a "no quoting" policy, it would be unrealistic to expect such level of privacy and confidentiality in a large list with thousands of subscribers.

To maximize everyone's safety, I think it would be more helpful to publicize the fact that this is a public list and is therefore by definition not a private or confidential space. I echo JoAnn Castagna's comment: "perhaps all that is needed is that everyone takes a few moments to review what they are sharing before they hit the 'send' button."

It is also a matter of courtesy. As some others have said, it is not good manners to post comments without asking permission.

Again, I'd argue that it is unethical and harmful to normativize permission-seeking as a general rule, even as a moral standard rather than legal or contractual one. Fair use is not some accidental loophole in the copyright law that people like myself are exploiting, but it is a well-supported structure designed to maximize free exchange of ideas that is vital for scholarship, creativity, and democracy.

That does not mean that I would never feel compelled to ask for permission before quoting someone's comments. I would probably ask for permission as a courtesy before quoting someone's deeply personal story even if there is no legal obligation to do so out of the concern that the risk of unintentional emotional harm may outweigh benefit.

I had a similar experience when I attended a public hearing of the Human Rights Commission of the City of Portland where a survivor of transnational labor trafficking shared his experiences. I was live-tweeting the hearing as it happened, and also wrote up a report about the whole event afterwards, but I chose not to publish any specifics from his testimony. There was no question that the hearing was meant to be public and that his testimony was not confidential, but as I watched him speaking from deep emotional and physical pain and quickly leaving the room after his testimony, I felt that it would be wrong to publish contents of his testimony. I did not feel the same hesitation about quoting and commenting on testimonies of law enforcement officers, immigration advocates, and social workers.

In addition, in the specific case of Emi's website, the comments have hardly been posted in the spirit of a supportive feminist community where issues are thoughtfully discussed with mutual respect.

Well, that website is simply a repository of my own posts, so no it is not meant to be a place for discussion. But I do feel that I participate in these discussions in the spirit of a supportive feminist community (though I can't really tell if all participants actually have something "thoughtful" to contribute, or that my respect is reciprocated). I sort of see your point if you are talking about the specific cases of Christina Hoff Sommers' or Daphne Patai's books, though (and I say this as someone who was quoted in one of Patai's books).

Now, you are not the first person to object to having your words (on WMST-L or one of other fora) being quoted and commented on my website, and in response I have made efforts to address their concerns:

1. If you wish to have your entire posts included rather than just a portion of it, I would be happy to comply, with your explicit permission of course (since it would be considered more than what is allowed without permission under fair use doctrine).

2. If you wish to offer corrections or clarifications for your comments, I would be happy to publish them along with the original quote. I am also willing to post a link to your blog or website or article if you feel that it would give greater context to the readers.

3. In certain circumstances, I would agree to remove personally identifying information from my website if there is a convincing reason to do so. For example, someone who is coming up for a job interview or tenure review might not want to be associated with a comment she made when she was a graduate student, or a trans person who has posted under previous name and gender might not want that identity to follow them.

I am of course not obligated to do any of the above, but I continue to offer these options as a courtesy "in the spirit of a supportive feminist community." So if you are truly concerned about being excerpted or misrepresented, options 1 should ease your concern. If you feel that your comments were written in haste and do not accurately reflect your perspectives, option 2 addresses that problem. If, on the other hand, there are extenuating circumstances that call for the removal of personally identifiable information, I offer option 3. Please feel free to email me privately to discuss these or any other solutions.


Emi Koyama