Brave New Classroom
or
Who IS Afraid of Virginia Woolf?
American Lawyer "Plugging In," Jan-Feb 1998
David G. Post
[NB: A version of this appeared as an Op-Ed article in the Washington Post Monday,
November
17, under the title "When Cheating is Cause for Celebration"]
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A student of mine at Temple Law School came to me the other day to show me a
document that he had downloaded from somewhere on the Internet. It was entitled
"Outline of
Computer Law" and it had my name on it; it looked, indeed, like the very outline I
prepared for
the course I've been teaching this semester (and in which this particular student is
currently
enrolled). He looked me in the eye and asked -- somewhat sheepishly -- whether there
was any
problem with his having obtained this or shown it to others in the class.
As it turned out, there was nothing amiss here; a former student of mine had posted to a Web site his class notes from the last time I had offered this course, and I hardly could complain -- indeed, I was delighted -- that a current student found that information to be useful. But I thought of this episode when I read recently of the lawsuit that Boston University filed last month in federal court. The suit seeks to enjoin eight companies that are operating Internet websites from which they sell "customized term papers" to B.U. students, papers the students then hand in to their instructors. The suit asserts, inter alia, that this practice violates a Massachusetts law making it a crime to "sell . . . a theme, term paper, thesis, or other paper . . . knowing or having reason to know that such theme, term paper, thesis, or other paper . . . will be submitted or used by some other person for academic credit and represented as the original work of such person" (Mass. Ann. Laws ch. 271 §50).
At first glance, this campaign to stamp out Internet 'term paper mills' seems
straightforward and uncontroversial. Students, we would surely all agree, should
write, and not
purchase, their term papers. If the practices that B.U. complains of were to become
widespread,
important educational values would be undermined. Given that the Internet makes it a
great deal
easier to operate businesses of this kind -- low overhead, a distribution pipeline that
reaches
directly into the rooms of a vast proportion of U.S. college students, cheap storage,
easy
searching, that sort of thing -- who would object to B.U.'s attempt to nip this trend
in the bud?
Well, I would. Not only because the Massachusetts law in question may well
violate the
First Amendment -- is Massachusetts planning to prosecute the editors of the
Encyclopedia
Britannica, or the New York Times, who must surely "have reason to know" that their
work is
frequently "used by some other person for academic credit and represented as the
original work of
such person"?. Nor, I should hasten to point out, because I like the idea that my
students, or
anyone else's, might be turning in papers that they have not authored and claiming them
as their
own work.
But I do very much like the idea of a world in which you can go to your
computer and
type in "The opening of the American frontier and 19th Century American
political theory/25
pages maximum" and have a stack of documents -- some written, perhaps, by renowned
professors halfway around the globe, some by college students across town -- delivered
to your
desktop. A giant, global term paper mill -- that is precisely what the Internet is
becoming and
what we should want it to become, fulfilling its truly extraordinary potential to make
an
unimaginably immense public library of information searchable and customizable for all
users.
It is no exaggeration to say that this fulfills a dream that humankind has had
for thousands
of years, the library at Alexandria writ very, very large. We are, of course, not
there yet;
searching for information on the Internet is still relatively crude, the ability of
'customize'
information requests still in a primitive state. But one would hope that the legal
system would be
encouraging -- or, at least, not discouraging -- the continued development of new and
improved methods for making this information available, for unleashing the creativity
of those
who are working to overcome the Internet's current limitations. The B.U. lawsuit,
however,
moves in precisely the wrong direction. It says to information providers: "Beware, for
if the
information you provide is misused by your consumers, we will hold you responsible for
that
misuse" -- a strange way to encourage them to devise new and ever more creative
delivery
vehicles for that information.
It might be argued, perhaps, that the scienter requirement in the
Massachusetts statute
saves this law from what might otherwise be its destructive consequences; after all,
only those
who "know[], or hav[e] reason to know," that the information they are supplying will be
misused
in some way, are subject to the law's proscriptions (and the six-month maximum jail
time for
which the statute provides). But dragging these providers into court and subjecting
them all to an
inquiry about their state of mind regarding their users' activities is a costly
undertaking for all
concerned. More importantly, if the law punishes those providers who have knowledge
about
their consumers' actions or intentions, the natural outcome is that providers will not
ask for that
information; punishing those who "know or have reason to know" that their information
will be
misused will just discourage providers from getting any information at all about their
consumers.
That is a rather perverse outcome; shouldn't we be encouraging providers to find new
ways to
serve their consumers' needs -- our needs -- by finding out as much as possible about
what kind
of information the consumer wants in order to deliver that (and only that) to the
desktop?
Information, like hammers, automobiles, pharmaceuticals, and other useful
things, can
always be used for ill, or for good. We can, and should, punish those who misuse these
tools. If
Boston University wants to punish those students who are misusing their "library
privileges," I say
more power to them. But by filing their lawsuit they are interfering -- indirectly,
but measurably
-- on the ability of many others to obtain the information they need (and will use for
perfectly
permissible purposes).
Boston University has another option. The world of information availability
and delivery
is being transformed before its eyes, and there is a law of nature more powerful than
the law of
Massachusetts at work here: Adapt or die. In John Kenneth Galbraith's words, "Faced
with the
choice between changing and proving there is no need to do so, most people get busy on
the
proof." But the difficult educational dilemma posed by the development of the Internet
-- how
do you design a productive educational experience in a world in which end-of-semester
term
papers no longer serve their time-honored purposes of measuring students' abilities or
imparting
useful knowledge? -- will not disappear no matter how many lawyers they throw at it,
because it
is not the sort of problem that the law, or B.U.'s lawyers, are well-positioned to
solve. Institutions
that have managed to survive and flourish under the prior set of rules and constraints
may try to
use the law as a means to freeze the status quo in place -- AT&T to keep out new
long-distance
entrants, the new entrants to keep out newer entrants providing Internet phone service,
and on
and on it goes -- but that strategy is not only self-defeating but socially
counter-productive as
well. B.U. (and its students) would be better served if the resources (money and
brainpower) they
are planning to expend on this lawsuit were diverted towards trying to adapt to the new
opportunities and the new problems the new information environment presents.
The hard questions that we all need to roll up our sleeves and tackle head-on are the educational ones; how do we teach in this new environment? I certainly don't have the answer to that (though I now know that I can't very well grade my students on the basis of their outline of the material I present, not if they can get that easily at the click of a mouse). But I am certain that the solution will come more quickly if we devote our efforts to trying to solve it, not trying to squelch it by injunction.