Digital Diploma Mills: The Automation of Higher Education
In "Digital Diploma Mills: The Automation of Higher Education" (October 1997) David F. Noble argues that recent events at two large North American universities "signal dramatically that we have entered a new era in higher education, one which is rapidly drawing the halls of academe into the age of automation. ...
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Federal Agency Sues U. of Phoenix, Alleging Discrimination Against Non-Mormon Employees
A federal agency that enforces U.S. civil-rights laws sued the University of Phoenix this week, accusing the mammoth for-profit university of religious discrimination against non-Mormon employees who work as student recruiters. The Equal Employment Opportunity Commission, which filed the suit on behalf of four former recruiters and an unknown number of others, says the university discriminated by giving the most promising "leads" -- the industry term for contact information on prospective students -- to recruiters who were members of the Church of Jesus Christ of Latter-day Saints. In September 2004, the university paid $9.8-million to settle a complaint by the U.S. Department of Education that portrayed the university's recruiting programs as overly aggressive (The Chronicle, October 8, 2004). In addition to the allegations of discrimination in the awarding of leads, the EEOC lawsuit, filed on Wednesday in the U.S. District Court in Phoenix, accuses the university of discrimination by denying tuition waivers -- a popular perquisite for employees -- to the four recruiters and other non-Mormons.
David F. Noble October, FROM 1997 Historian David Noble teaches at York University in Toronto. He can be reached at (416) 778-6927.
This paper argues that the trend towards automation of higher education as implemented in North
American universities today is a battle between students and professors on one side, and university
administrations and companies with educational products to sell on the other.
Recent events at two large North American universities signal dramatically that we have entered a new era in higher education, one which is rapidly drawing the halls of academe into the age of automation. In mid-summer the UCLA administration launched its historic "Instructional Enhancement Initiative" requiring computer web sites for all of its arts and sciences courses by the start of the Fall term, the first time that a major university has made mandatory the use of computer telecommunications technology in the delivery of higher education. In partnership with several private corporations (including the Times Mirror Company, parent of the Los Angeles Times), moreover, UCLA has spawned its own for-profit company, headed by a former UCLA vice chancellor, to peddle online education (the Home Education Network).
This past spring in Toronto, meanwhile, the full-time faculty of York University, Canada's third largest, ended an historic two-month strike having secured for the first time anywhere formal contractual protection against precisely the kind of administrative action being taken by UCLA. The unprecedented faculty job action, the longest university strike in English Canadian history, was taken partly in response to unilateral administrative initiatives in the implementation of instructional technology, the most egregious example of which was an official solicitation to private corporations inviting them to permanently place their logo on a university online course in return for a $10,000 contribution to courseware development. As at UCLA, the York University administration has spawned its own subsidiary (Cultech), directed by the vice president for research and several deans and dedicated, in collaboration with a consortium of private sector firms, to the commercial development and exploitation of online education.
Significantly, at both UCLA and York, the presumably cyber-happy students have given clear indication that they are not exactly enthusiastic about the prospect of a high-tech academic future, recommending against the Initiative at UCLA and at York lending their support to striking faculty and launching their own independent investigation of the commercial, pedagogical, and ethical implications of online educational technology. This Fall the student handbook distributed annually to all students by the York Federation of Students contained a warning about the dangers of online education.
Thus, at the very outset of this new age of higher education, the lines have already been drawn in the struggle which will ultimately determine its shape. On the one side university administrators and their myriad commercial partners, on the other those who constitute the core relation of education: students and teachers. (The chief slogan of the York faculty during the strike was "the classroom vs the boardroom"). It is no accident, then, that the high-tech transformation of higher education is being initiated and implemented from the top down, either without any student and faculty involvement in the decision-making or despite it. At UCLA the administration launched their Initiative during the summer when many faculty are away and there was little possibility of faculty oversight or governance; faculty were thus left out of the loop and kept in the dark about the new web requirement until the last moment. And UCLA administrators also went ahead with its Initiative, which is funded by a new compulsory student fee, despite the formal student recommendation against it. Similarly the initiatives of the York administration in the deployment of computer technology in education were taken without faculty oversight and deliberation much less student involvement.
What is driving this headlong rush to implement new technology with so little regard for deliberation of the pedagogical and economic costs and at the risk of student and faculty alienation and opposition? A short answer might be the fear of getting left behind, the incessant pressures of "progress". But there is more to it. For the universities are not simply undergoing a technological transformation. Beneath that change, and camouflaged by it, lies another: the commercialization of higher education. For here as elsewhere technology is but a vehicle and a disarming disguise.
The major change to befall the universities over the last two decades has been the identification of the campus as a significant site of capital accumulation, a change in social perception which has resulted in the systematic conversion of intellectual activity into intellectual capital and, hence, intellectual property. There have been two general phases of this transformation. The first, which began twenty years ago and is still underway, entailed the commoditization of the research function of the university, transforming scientific and engineering knowledge into commercially viable proprietary products that could be owned and bought and sold in the market. The second, which we are now witnessing, entails the commoditization of the educational function of the university, transforming courses into courseware, the activity of instruction itself into commercially viable proprietary products that can be owned and bought and sold in the market. In the first phase the universities became the site of production and sale of patents and exclusive licenses. In the second, they are becoming the site of production of - as well as the chief market for - copyrighted videos, courseware, CD-ROMs, and Web sites.
The first phase began in the mid-1970's when, in the wake of the oil crisis and intensifying international competition, corporate and political leaders of the major industrialized countries of the world recognized that they were losing their monopoly over the world's heavy industries and that, in the future, their supremacy would depend upon their monopoly over the knowledge which had become the lifeblood of the new so-called "knowledge-based" industries (space, electronics, computers, materials, telecommunications, and bioengineering). This focus upon "intellectual capital" turned their attention to the universities as its chief source, implicating the universities as never before in the economic machinery. In the view of capital, the universities had become too important to be left to the universities. Within a decade there was a proliferation of industrial partnerships and new proprietary arrangements, as industrialists and their campus counterparts invented ways to socialize the risks and costs of creating this knowledge while privatizing the benefits. This unprecedented collaboration gave rise to an elaborate web of interlocking directorates between corporate and academic boardrooms and the foundation of joint lobbying efforts epitomized by the work of the Business-Higher Education Forum. The chief accomplishment of the combined effort, in addition to a relaxation of anti-trust regulations and greater tax incentives for corporate funding of university research, was the 1980 reform of the patent law which for the first time gave the universities automatic ownership of patents resulting from federal government grants. Laboratory knowledge now became patents, that is Intellectual capital and intellectual property. As patent holding companies, the universities set about at once to codify their intellectual property policies, develop the infrastructure for the conduct of commercially-viable research, cultivate their corporate ties, and create the mechanisms for marketing their new commodity, exclusive licenses to their patents. The
result of this first phase of university commoditization was a wholesale reallocation of university resources toward its research function at the expense of its educational function.
Class sizes swelled, teaching staffs and instructional resources were reduced, salaries were frozen, and curricular offerings were cut to the bone. At the same time, tuition soared to subsidize the creation and maintenance of the commercial infrastructure (and correspondingly bloated administration) that has never really paid off. In the end students were paying more for their education and getting less, and the campuses were in crisis.*
The second phase of the commercialization of academia, the commoditization of instruction, is touted as the
solution to the crisis engendered by the first. Ignoring the true sources of the financial debacle - an
expensive and low-yielding commercial infrastructure and greatly expanded administrative costs - the
of computer-based instruction focus their attention rather upon increasing the efficiencies of already
overextended teachers. And they ignore as well the fact that their high-tech remedies are bound only to
compound the problem, increasing further, rather then reducing, the costs of higher education.
(Experience to date demonstrates clearly that computer-based teaching, with its limitless
upon instructor time and vastly expanded overhead requirements - equipment, upgrades, maintenance, and
technical and administrative support staff - costs more not less than traditional education, whatever
reductions in direct labor, hence the need for outside funding and student technology
Little wonder, then, that teachers and students are reluctant to embrace this new panacea. Their hesitation
reflects not fear but wisdom.**
But this second transformation of higher education is not the work of teachers or students, the presumed beneficiaries of improved education, because it is not really about education at all. That's just the name of the market. The foremost promoters of this transformation are rather the vendors of the network hardware, software, and "content" - Apple, IBM, Bell, the cable companies, Microsoft, and the edutainment and publishing companies Disney, Simon and Schuster, Prentice-Hall, et al - who view education as a market for their wares, a market estimated by the Lehman Brothers investment firm potentially to be worth several hundred billion dollars. "Investment opportunity in the education industry has never been better," one of their reports proclaimed, indicating that this will be "the focus industry" for lucrative investment in the future, replacing the healthcare industry. (The report also forecasts that the educational market will eventually become dominated by EMO's - education maintenance organizations - just like HMO's in the healthcare market). It is important to emphasize that, for all the democratic rhetoric about extending educational access to those unable to get to the campus, the campus remains the real market for these products, where students outnumber their distance learning counterparts six-to-one.
In addition to the vendors, corporate training advocates view online education as yet another way of bringing their problem-solving, information- processing, "just-in-time" educated employees up to profit- making speed. Beyond their ambitious in-house training programs, which have incorporated computer-based instructional methods pioneered by the military, they envision the transformation of the delivery of higher education as a means of supplying their properly-prepared personnel at public expense .
INVOLVEMENT WITH THE MILITARY
Wrestling the Military-Academic
By Nicholas Turse, tomdispatch.com May 2, 2004
The reach of the military-academic complex goes far beyond schools like West Point and Annapolis; today almost 350 civilian universities conduct Pentagon-funded research.
The third major promoters of this transformation are the university administrators, who see it
a way of giving their institutions a fashionably forward-looking image. More importantly,
they view computer-based instruction as a means of reducing their direct labor and plant maintenance costs -
fewer teachers and classrooms - while at the same time undermining the autonomy and independence of faculty.
At the same time, they are hoping to get a piece of the commercial action for their institutions or
themselves, as vendors in their own right of software and content. University administrators are supported
this enterprise by a number of private foundations, trade associations, and academic-corporate consortia
are promoting the use of the new technologies with increasing intensity. Among these are the
Sloan, Mellon, Pew, and Culpeper Foundations, the American Council on Education, and, above all, Educom,
consortium representing the management of 600 colleges and universities and a hundred private
Last but not least, behind this effort are the ubiquitous technozealots who simply view computers as the panacea for everything, because they like to play with them. With the avid encouragement of their private sector and university patrons, they forge ahead, without support for their pedagogical claims about the alleged enhancement of education, without any real evidence of productivity improvement, and without any effective demand from either students or teachers.
In addition to York and UCLA, universities throughout North America are rapidly being overtaken by this second phase of commercialization. There are the stand-alone virtual institutions like University of Phoenix, the wired private institutions like the New School for Social Research, the campuses of state universities like the University of Maryland and the new Gulf-Coast campus of the University of Florida (which boasts no tenure). On the state level, the states of Arizona and California have initiated their own state-wide virtual university projects, while a consortia of western "Smart States" have launched their own ambitious effort to wire all of their campuses into an online educational network. In Canada, a national effort has been undertaken, spearheaded by the Telelearning Research Network centered at Simon Fraser University in Vancouver, to bring most of the nation's higher education institutions into a "Virtual U" network.
The overriding commercial intent and market orientation behind these initiatives is explicit, as is illustrated by the most ambitious U.S. effort to date, the Western Governors' Virtual University Project, whose stated goals are to "expand the marketplace for instructional materials, courseware, and programs utilizing advanced technology," "expand the marketplace for demonstrated competence," and "identify and remove barriers to the free functioning of these markets, particularly barriers posed by statutes, policies, and administrative rules and regulations."
"In the future," Utah governor Mike Leavitt proclaimed, "an institution of higher education will become a little like a local television station." Startup funds for the project come from the private sector, specifically from Educational Management Group , the educational arm of the world's largest educational publisher Simon and Schuster and the proprietary impulse behind their largesse is made clear by Simon and Schuster CEO Jonathan Newcomb: "The use of interactive technology is causing a fundamental shift away from the physical classroom toward anytime, anywhere learning - the model for post secondary education in the twenty- first century." This transformation is being made possible by "advances in digital technology, coupled with the protection of copyright in cyberspace."
Similarly, the national effort to develop the "Virtual U" customized educational software
platform in Canada is directed by an industrial consortium which includes Kodak, IBM, Microsoft,
McGraw-Hill, Prentice-Hall, Rogers Cablesystems, Unitel, Novasys, Nortel, Bell Canada, and MPR Teltech, a
research subsidiary of GTE. The commercial thrust behind the project is explicit here too.
Predicting a potential fifty billion dollar Canadian market, the project proposal emphasizes the adoption of
"an intellectual property policy that will encourage
researchers and industry to commercialize their innovations" and anticipates the development of "a number of commercially marketable hardware and software products and services," including "courseware and other learning products." The two directors of the project, Simon Fraser University professors, have formed their own company to peddle these products in collaboration with the university. At the same time, the nearby University of British Columbia has recently spun off the private WEB-CT company to peddle its own educational website software, WEB-CT, the software designed by one of its computer science professors and now being used by UCLA. In recent months, WEB-CT has entered into production and distribution relationships with Silicon Graphics and Prentice-Hall and is fast becoming a major player in the American as well as Canadian higher education market. As of the beginning of the Fall term, WEB CT licensees now include, in addition to UCLA and California State University, the Universities of Georgia, Minnesota, Illinois, North Carolina, and Indiana, as well as such private institutions as Syracuse, Brandeis, and Duquesne.
The implications of the commoditization of university instruction are two-fold in nature, those relating to the university as a site of the production of the commodities and those relating to the university as a market for them. The first raises for the faculty traditional labor issues about the introduction of new technologies of production. The second raises for students major questions about costs, coercion, privacy, equity, and the quality of education.
With the commoditization of instruction, teachers as labor are drawn into a production process designed for
the efficient creation of instructional commodities, and hence become subject to all the pressures that have
befallen production workers in other industries undergoing rapid technological transformation from above. In
this context faculty have much more in common with the historic plight of other skilled workers than they
to acknowledge. Like these others, their activity is being restructured, via the technology, in order to
reduce their autonomy, independence, and control over their work and to place workplace knowledge and
as much as possible into the hands of the administration. As in other industries, the technology is
being deployed by management primarily to discipline, deskill, and displace labor.
Once faculty and courses go online, administrators gain much greater direct control over faculty performance and course content than ever before and the potential for administrative scrutiny, supervision, regimentation, discipline and even censorship increase dramatically. At the same time, the use of the technology entails an inevitable extension of working time and an intensification of work as faculty struggle at all hours of the day and night to stay on top of the technology and respond, via chat rooms, virtual office hours, and e-mail, to both students and administrators to whom they have now become instantly and continuously accessible. The technology also allows for much more careful administrative monitoring of faculty availability, activities, and responsiveness.
Once faculty put their course material online, moreover, the knowledge and course design skill embodied in that material is taken out of their possession, transferred to the machinery and placed in the hands of the administration. The administration is now in a position to hire less skilled, and hence cheaper, workers to deliver the technologically prepackaged course. It also allows the administration, which claims ownership of this commodity, to peddle the course elsewhere without the original designer's involvement or even knowledge, much less financial interest. The buyers of this packaged commodity, meanwhile, other academic institutions, are able thereby to contract out, and hence outsource, the work of their own employees and thus reduce their reliance upon their in-house teaching staff.
Most important, once the faculty converts its courses to courseware, their services are in the long run no longer required. They become redundant, and when they leave, their work remains behind. In Kurt Vonnegut's classic novel Player Piano the ace machinist Rudy Hertz is flattered by the automation engineers who tell him his genius will be immortalized. They buy him a beer. They capture his skills on tape. Then they fire him. Today faculty are falling for the same tired line, that their brilliance will be broadcast online to millions. Perhaps, but without their further participation. Some skeptical faculty insist that what they do cannot possibly be automated, and they are right. But it will be automated anyway, whatever the loss in educational quality. Because education, again, is not what all this is about; it's about making money. In short, the new technology of education, like the automation of other industries, robs faculty of their knowledge and skills, their control over their working lives, the product of their labor, and, ultimately, their means of livelihood.
None of this is speculation. This Fall the UCLA faculty, at administration request, have dutifully or grudgingly (it doesn't really matter which) placed their course work - ranging from just syllabi and assignments to the entire body of course lectures and notes - at the disposal of their administration, to be used online, without asking who will own it much less how it will eventually be used and with what consequences. At York university, untenured faculty have been required to put their courses on video, CD- ROM or the Internet or lose their job. They have then been hired to teach their own now automated course at a fraction of their former compensation. The New School in New York now routinely hires outside contractors from around the country, mostly unemployed PhDs, to design online courses. The designers are not hired as employees but are simply paid a modest flat fee and are required to surrender to the university all rights to their course. The New School then offers the course without having to employ anyone. And this is just the beginning.
Educom, the academic-corporate consortium, has recently established their Learning Infrastructure Initiative which includes the detailed study of what professors do, breaking the faculty job down in classic Tayloristic fashion into discrete tasks, and determining what parts can be automated or outsourced.
Educom believes that course design, lectures, and even evaluation can all be standardized, mechanized, and
consigned to outside commercial vendors. "Today you're looking at a highly personal human- mediated
environment," Educom president Robert Heterich observed. "The potential to remove the human
mediation in some areas and replace it with automation - smart, computer-based, network-based systems - is
tremendous. It's gotta happen."
Toward this end, university administrators are coercing or enticing faculty into compliance, placing the greatest pressures on the most vulnerable - untenured and part-time faculty, and entry-level and prospective employees. They are using the academic incentive and promotion structure to reward cooperation and discourage dissent. At the same time they are mounting an intensifying propaganda campaign to portray faculty as incompetent, hide-bound, recalcitrant, inefficient, ineffective, and expensive - in short, in need of improvement or replacement through instructional technologies. Faculty are portrayed above all as obstructionist, as standing in the way of progress and forestalling the panacea of virtual education allegedly demanded by students, their parents, and the public.
The York University faculty had heard it all. Yet still they fought vigorously and ultimately successfully to preserve quality education and protect themselves from administrative assault. During their long strike they countered such administration propaganda with the truth about what was happening to higher education and eventually won the support of students, the media, and the public. Most important, they secured a new contract containing unique and unprecedented provisions which, if effectively enforced, give faculty members direct and unambiguous control over all decisions relating to the automation of instruction, including veto power. According to the contract, all decisions regarding the use of technology as a supplement to classroom instruction or as a means of alternative delivery (including the use of video, CD-ROM's, Internet websites, computer-mediated conferencing, etc.) "shall be consistent with the pedagogic and academic judgements and principles of the faculty member employee as to the appropriateness of the use of technology in the circumstances." The contract also guarantees that "a faculty member will not be required to convert a course without his or her agreement." Thus, the York faculty will be able to ensure that the new technology, if and when used, will contribute to a genuine enhancement rather than a degradation of the quality of education, while at the same time preserving their positions, their autonomy, and their academic freedom. The battle is far from won, but it is a start.
The second set of implications stemming from the commoditization of instruction involve the transformation of the university into a market for the commodities being produced. Administrative propaganda routinely alludes to an alleged student demand for the new instructional products. At UCLA officials are betting that their high-tech agenda will be "student driven", as students insist that faculty make fuller use of the web site technology in their courses. To date, however, there has been no such demand on the part of students, no serious study of it, and no evidence for it. Indeed, the few times students have been given a voice, they have rejected the initiatives hands down, especially when they were required to pay for it (the definition of effective demand, i.e. a market). At UCLA, students recommended against the Instructional Enhancement Initiative. At the University of British Columbia, home of the WEB-CT software being used at UCLA, students voted in a referendum four-to-one against a similar initiative, despite a lengthy administration campaign promising them a more secure place in the high tech future. Administrators at both institutions have tended to dismiss, ignore, or explain away these negative student decisions, but there is a message here: students want the genuine face-to- face education they paid for not a cybercounterfeit. Nevertheless, administrators at both UCLA and UBC decided to proceed with the their agenda anyway, desperate to create a market and secure some return on their investment in the information technology infrastructure. Thus, they are creating a market by fiat, compelling students (and faculty) to become users and hence consumers of the hardware, software, and content products as a condition of getting an education, whatever their interest or ability to pay. Can all students equally afford this capital-intensive education?
Another key ethical issue relates to the use of student online activities. Few students realize that their computer-based courses are often thinly- veiled field trials for product and market development, that while they are studying their courses, their courses are studying them. In Canada, for example, universities have been given royalty-free licenses to Virtual U software in return for providing data on its use to the vendors. Thus, all online activity including communications between students and professors and among students are monitored, automatically logged and archived by the system for use by the vendor. Students enrolled in courses using Virtual U software are in fact formally designated "experimental subjects." Because federal monies were used to develop the software and underwrite the field trials, vendors were compelled to comply with ethical guidelines on the experimental use of human subjects. Thus, all students once enrolled are required to sign forms releasing ownership and control of their online activities to the vendors. The form states "as a student using Virtual U in a course, I give my permission to have the computer-generated usage data, conference transcript data, and virtual artifacts data collected by the Virtual U software. . . used for research, development, and demonstration purposes. "
According to UCLA's Home Education Network president John Korbara, all of their distance learning courses are likewise monitored and archived for use by company officials. On the UCLA campus, according to Harlan Lebo of the Provost's office, student use of the course websites will be routinely audited and evaluated by the administration. Marvin Goldberg, designer of the UCLA WEB-CT software acknowledges that the system allows for "lurking" and automatic storage and retrieval of all online activities. How this capability will be used and by whom is not altogether clear, especially since websites are typically being constructed by people other than the instructors. What third parties (besides students and faculty in the course) will have access to the student's communications? Who will own student online contributions? What rights, if any, do students have to privacy and proprietary control of their work? Are they given prior notification as to the ultimate status of their online activities, so that they might be in a position to give, or withhold, their informed consent? If students are taking courses which are just experiments, and hence of unproven pedagogical value, should students be paying full tuition for them? And if students are being used as guinea pigs in product trials masquerading as courses, should they be paying for these courses or be paid to take them? More to the point, should students be content with a degraded, shadow cybereducation? In Canada student organizations have begun to confront these issues head on, and there are some signs of similar student concern emerging also in the U.S.
In his classic 1959 study of diploma mills for the American Council on Education, Robert Reid described the typical diploma mill as having the following characteristics: "no classrooms," "faculties are often untrained or nonexistent," and "the officers are unethical self-seekers whose qualifications are no better than their offerings." It is an apt description of the digital diploma mills now in the making. Quality higher education will not disappear entirely, but it will soon become the exclusive preserve of the privileged, available only to children of the rich and the powerful. For the rest of us a dismal new era of higher education has dawned. In ten years, we will look upon the wired remains of our once great democratic higher education system and wonder how we let it happen. That is, unless we decide now not to let it happen. (Historian David Noble , co-founder of the National Coalition for Universities in the Public Interest, teaches at York University. His latest book is The Religion of Technology . He is currently writing a book on this subject entitled Digital Diploma Mills).
* Tuition began to outpace inflation in the early 1980's, at precisely the moment when changes in the patent system enabled the universities to become major vendors of patent licenses. According to data compiled by the National Center for Educational Statistics, between 1976 and 1994 expenditures on research increased 21.7% at public research universities while expenditure on instruction decreased 9.5%. Faculty salaries, which had peaked in 1972, fell precipitously during the next decade and have since recovered only half the loss.
** Recent surveys of the instructional use of information technology in higher education clearly indicate that there have been no significant gains in either productivity improvement or pedagogical enhancement. Kenneth C. Green , Director of the Campus Computing Project, which conducts annual surveys of information technology use in higher education, noted that "the campus experience over the past decade reveals that the dollars can be daunting, the return on investment highly uncertain." "We have yet to hear of an instance where the total costs (including all realistically amortized capital investments and development expenses, plus reasonable estimates for faculty and support staff time) associated with teaching some unit to some group of students actually decline while maintaining the quality of learning," Green wrote. On the matter of pedagogical effectiveness, Green noted that "the research literature offers, at best, a mixed review of often inconclusive results, at least when searching for traditional measures of statistical significance in learning outcomes."
David F. Noble, a history professor at York University in Toronto and author of a three-part critique of what he calls "digital diploma mills," noted that last year he received so many invitations to speak on campuses across North America about his concerns that he could not honor them all. At many of the 20 to 30 speaking engagements he did attend, he said, he drew crowds in the hundreds.
Digital Diploma Mills, Part II
The Coming Battle Over Online Instruction
© by David F. Noble, March,1998
(Used by permission).
Tensions are rapidly mounting today between faculty and university administrations over the high tech
commercialization of higher education. During the last two decades campus commercialization centered upon
research function of the universities, but it has now shifted to the core instructional function, the heart
and soul of academia. In both cases the primary commercial impulse has come from non-academic forces,
industrial corporations seeking indirect public subsidy of their research needs and private vendors of
instructional hardware, software, and content looking for subsidized product development and a potentially
lucrative market for their wares. In both cases also, there has been a fundamental transformation of the
nature of academic work and the relationship between higher educational institutions and their faculty
employees. With the commoditization of instruction, this transformation of academia is now reaching the
The commercialization of research entailed the conversion of the intellectual process of research into discrete products - inventions - and the conversion of these inventions into commodities - something that could be owned and exchanged on the market - by means of patents and exclusive licenses. With this change, faculty who conducted research in the service of their role as educators and scholars, became instead producers of commodities for their employer. Universities could become commercial players not only because they were the major site of federally-funded scientific and technological research but also because amendments to the patent law had given academic contractors ownership of all patents resulting from federally-funded research. This potentially gave the universities something to trade with industry: licenses to those patents. But before the universities could make any proprietary deals with industry they had first to secure the patent rights of their research faculty and staff, because patents are issued only to inventors not to institutions. Universities thus established ad hoc arrangements with their own professors, giving them a share of revenues in exchange for their patent rights. Eventually, they adopted formal intellectual property policies similar to those devised many decades before by private industry: employees would be required contractually to assign their patent rights to the university as a routine condition of employment.
In the process, research, formerly pursued as an end in itself or as a contribution to human knowledge, now became a means to commercial ends and researchers became implicated, directly or indirectly and wittingly or not, in the business of making money for their universities. The commercialization of academic research brought universities and industry into close partnership; it made some people very rich and no doubt resulted in the development of some new technologies. But it also ushered in a brash new regime of proprietary control, secrecy, fraud, theft, and commercial motives and preoccupations. Some argue that this new commercial ethos has irreversibly corrupted the university as a site of reliably independent thought and disinterested inquiry, placing in jeopardy a precious and irreplaceble public resource.
Today the universities are moving rapidly to commercialize their instructional activities in much the same way. Here the instructional process, classroom teaching, is converted into products, such as a CD ROMs, Websites, or courseware. These products are then converted into marketable commodities by means of copyrights and licenses to distribute copyrighted instructional products. Like the commercialization of research, the commercialization of instruction entails a fundamental change in the relationship between the universities and their faculty employees. Here faculty who develop and teach face-to-face courses as their primary responsibility as educators are transformed into mere producers of marketable instructional commodities which they may or may not themselves "deliver." Universities today are going into business for themselves, as the producers and distributors of commercial instructional products, or they are making deals with private firms for the production and distribution of online courses. But before the universities can begin to trade on their courses, they must first control the copyright to course material. Course copyright is the sine qua non of the digital diploma mill. In copyright law, however, ownership follows authorship. This means that course materials are the property of the teaching faculty and staff who developed them. Traditionally, universities have acknowledged that faculty, as the authors of courses, have owned their course materials and hence copyright to them (except in those cases where extraordinary university resources were involved in course development, which might entail shared ownership). But the universities are now undertaking to usurp such traditional faculty rights in order to capitalize on the online instruction marketplace, and it is for this reason that the rather arcane matter of copyright and intellectual property has become the most explosive campus issue of the day. Here the battle line over the future of higher education will be drawn. For faculty and their organizations it is a struggle not only over proprietary control of course materials per se but also over their academic role, their autonomy and integrity, their future employment, and the future of quality education. In the wake of the online education gold-rush, many have begun to wonder, will the content of education be shaped by scholars and educators or by media businessmen, by the dictates of experienced pedagogy or a quick profit? Will people enroll in higher educational institutions only to discover that they might just as well have stayed home watching television?
At present the universities are in a phase of transition, experimenting with solutions to their copyright dilemma. Such efforts must be watched very closely because what happens now will likely determine the future shape of higher education. During the last few years several universities have entered into formal agreements with private firms which give some indication of where they are headed: UCLA and the Home Education Network (THEN), UC Berkeley and America On Line (AOL); and the University of Colorado and Real Eduation. These documents, heretofore confidential, herald the dawning of a new regime of instruction strikingly similar to the commercial regime of academic research. The initial loci of these arrangements are the extension programs of the universities, the testing grounds for online instruction and the beach-heads, so to speak, for the commercialization of higher education. In each of these contracts, entered into without faculty knowledge much less approval, the university has explicitly assumed its own, rather than faculty, authorship/ownership of course materials, in violation not only of academic tradition but perhaps also of federal copyright law. In claiming authorship/ownership as a precondition of making the deal, the universities might also have committed fraud. Whether or not the universities have already overstepped legal boundaries, it is clear that there is a move afoot here to establish surreptitiously a new practice, a new tradition, in which universities automatically own all rights to course material developed by faculty. Unless faculty act quickly to assert and confirm their rightful claim to their course materials, their inaction might retrospectively be seen by the courts in the future as a tacit acknowledgement of the abandonment of those rights. In the longer run, universities will no doubt undertake to routinize this theft by requiring faculty to assign all copyrights on course material to the university as a condition of employment as they have done with patents.
The first case to be examined is the secret agreement between UCLA and The Home Education Network (THEN) signed on June 30, 1994 and amended February 21, 1996. This agreement entailed the granting by a university of exclusive production and distribution rights to electronic courses, including copyright, to a private, for-profit corporation, without any prior faculty consultation or approval.
THEN emerged not from the world of education but from the fast hustle media world of spins and sound-bites, cable TV and public relations. It was the brainchild of political media consultant and television producer Alan Arkatov, who produced and marketed the media campaigns of over a dozen U.S. senators, governors, and mayors, before serving as Senior Advisor to President Clinton's 1992 campaign chairman Mickey Kantor. In 1994 he negotiated a landmark contract with the Regents of the University of California to form an unprecendented arrangement with UCLA Extension (UNEX), the largest continuing higher education program in the country. The agreement gave Arkatov exclusive rights to all electronic delivery of UNEX courses and the exclusive use of the UCLA name for that purpose, thereby launching THEN as "the most comprehensive continuing distance learning program of its kind in the United States."
THEN is now directed by its President and CEO John Kobara, who comes out of the cable television industry and the public relations and marketing side of academia. A UCLA graduate, Kobara was vice president and general manager of Falcon TV, one of the nation's largest independent cable operators, and served as president of the Southern California Cable Association before returning to UCLA to direct the Alumni Association. By the time he joined THEN in 1997, Kobara was UCLA's Vice Chancellor of University Relations directing all of the university's public relations, marketing, and government and alumni relations activities. Combining their media experience, political influence, and insider knowledge of UCLA and its myriad community connections, Arkatov and Kobara were well placed to make the most profitable use of their ambitious arrangement with UCLA. But UCLA administrators, meanwhile, had ambitions of their own, not only to provide a new revenue stream for UNEX but to establish it, and UCLA, as the premier vehicle for distance learning in the University of California system, and beyond.
The extremely broad agreement between THEN (signed by Arkatov) and the Regents of the University of California (on behalf of UNEX, a part of the Division of Continuing Education of UCLA, signed by Robert Lapiner, UCLA Dean of Continuing Studies) granted to THEN the exclusive right to produce, for a ten year "production period", and exploit, in perpetuity, all electronic versions of UNEX courses: "the sole, exclusive and irrevocable right under copyright and otherwise to make, produce and copyright by any means or 'Technology,' as such term is hereinafter defined, now known or herefter devised during the 'Production Period', as such term is hereinafter defined, audio, visual, audio/visual. digital and/or other recordings of all UNEX classes. . . ." as well as "the sole, exclusive and irrevocable right under copyright and otherwise to exhibit, perform, broadcast, transmit, publish, reproduce, manufacture, distribute, advertise, sell, rent, lease, market, publicize, promote, merchandise, provide technical support for, license and otherwise exploit, generally deal in and with and turn to account the Recordings by all means and technology and in all media and forms of expression and communication now known or later developed in all languages throughout the universe (the 'Territory') in perpetuity. . . ." THEN also secured the right to use the "University of California" and "UCLA" names in connection with the exploitation of their rights granted in the Agreement, as well as the right to assign or transfer their interests in the agreement to "any entity."
In consideration of this generous grant of rights, UNEX would receive a percentage of THEN's gross receipts (increasing from 6 to 12 percent over the course of the term) plus reimbursement of expenses incurred in the preparation of courses, including materials and wages. UNEX retained the right to designate which courses would and would not be converted to electronic form and the right to final approval of their content. However, it agreed that "THEN shall have the unlimited right to vary, change, alter, modify, add to and/or delete from the Recordings, and to rearrange and/or transpose the Recording and change the sequence thereof." In 1995 there was apparently some difference of opinion between the parties over whether or not the 1994 agreement covered online and Internet delivery of courses. THEN insisted that it did and ultimately prevailed upon UCLA to formally amend the agreement stipulating explicitly that "UNEX and THEN acknowledge that the inclusion of On-Line Rights is on the same economic and other terms as pertain to Recordings in the Agreement and that all such terms shall be interpreted so as to encompass On-Line Rights."
If the THEN-UCLA agreement brought the pecuniary preoccupations of private commerce into the heart and soul of higher education, it also carried with it another characteristic aspect of proprietary enterprise: secrecy. Despite, or perhaps because of, the broad terms and far-reaching implications of their agreement, THEN officials and UCLA administrators formally agreed to keep it secret. In a confidentiality clause in the 1994 agreement, it was agreed that "except as required by law, UNEX shall hold in confidence and shall not disclose or reveal to any person or entity confidential information relating to the nature and substance of this Agreement..." and that any participating "Instructor shall hold in confidence and not disclose or reveal to any person or entity confidential information relating to the nature and substance of the agreement between UNEX and THEN...." While THEN clearly had proprietary motives for such confidentiality, why did UCLA administrators, trustees of a public institution trading in publicly-created goods, agree to such secrecy? What did the university have to hide? Perhaps it was what the agreement had to say about its larger ambitions, and, especially, its relations with faculty.
Kobara's spin on the deal is that this arrangement is a modest one, restricted to UNEX and thus without any significance, or any reason for concern, beyond it. He insists that THEN has no relationship with UCLA but only with UNEX,which he argues is an independent entity. This is not the case. While UNEX is self-supporting, it is unambiguously a part of UCLA, as the Agreement itself makes clear. It is for this reason that an officer of UCLA, Robert Lapiner, signed the agreement, representing the Regents. Moreover, Kobara's modesty is clearly belied by the Agreement, which reveals intentions of a much wider scope. According to the Agreement, "The parties contemplate that the relationship with THEN may extend to other University of California campuses. Because of UNEX's unique responsibility to be bound to THEN for the Term hereof, THEN agrees that the participation of all other University of California campuses as well as other academic units of UCLA in this project will be coordinated by UNEX and for the purposes of this Agreement shall be considered 'UNEX Classes.' An appropriate share of revenues otherwise payable to UNEX for any such courses shall, however, be distributed proportionately to the participating University of California campus or other academic unit of UCLA." Whether or not they are able to realize their grand vision, it is clear that UCLA from the outset intended to extend its distance education operations beyond UNEX and, through UNEX - the largest continuing education program in the UC system - beyond UCLA to other UC campuses. This Fall the UCLA Division of Letters and Science launched its Instructional Enhancement Initiative mandating that every course must have a website containing at a minimum course outlines and assignments and encouraging faculty to put their lectures and other materials online as well. Like the THEN-UCLA deal, this action was taken without debate or formal faculty approval. THEN and UCLA officials maintain that there is no connection between this unprecedented initiative and their UNEX activities. In response to increasingly apparent faculty concern, UCLA's Provost of Arts and Letters Brian Copenhaver has recently distributed a letter to all faculty insisting, perhaps too much, that IEI is "resolutely and only academic" and that "there are no plans to use IEI commercially." Reading the Agreement, however, one has to wonder.
At the heart of the THEN-UCLA deal is the crucial matter of copyright. As is typical in any such agreement, the parties must attest to the fact that they indeed have the right and authority to grant whatever it is they are granting. Thus, UNEX affirmed that "UNEX has the full right, power, and authority to enter into and perform this Agreement and to grant to and vest in THEN all rights herein set forth, free and clear of any and all claims, rights, and obligations whatsoever." Under this assumption, UNEX agreed that "As between UNEX, THEN, and the instructors of the UNEX Classes (the 'Instructors'), THEN shall be the owner of all right, title, and interest, including without limitation, the copyright, in and to all Recordings of UNEX Classes produced by and for THEN hereunder and, for purposes of Title 17 of the United States Code also known as the Copyright Act of 1976, as amended (the 'Copyright Act'), THEN shall be deemed the author of the Recordings." By what legal right and under what authority could UNEX make such a grant, given the fact that the instructors who create the courses rather than UCLA or UNEX are the rightful and heretofore acknowledged owners of copyright? The instructors, of course, were never even party to this agreement. This is the crux of the Agreement and all such arrangements.
In order to be in a position to uphold its side of the bargain, UNEX formally agreed that it would undertake to compel its instructors, on THEN's behalf, to assign their copyrights to UNEX, thereby enabling UNEX to assign them to THEN. This was made fully explicit with the inclusion in the Agreement of an "Exhibit A," outlining a compulsory "Instructors' Agreement," whereby instructors would be made to surrender their rights to UNEX as a condition of employment. The Agreement thus stipulates that "UNEX shall use its best efforts to cause each Instructor to agree in writing ('Instructor Agreement') for the specific stated benefit of THEN, to the provisions set forth on Exhibit 'A' attached hereto." Furthermore, the agreement stipulates that any such Instructor Agreement had to meet the specifications not only of UNEX but also of THEN, which "shall have the right of prior written approval of the form and substance of the agreements entered into by UNEX and Instructors concerning the production and exploitation of the Recordings."
Exhibit A is a five page document which specifies in detail what the Instructor must give up and do for UNEX and THEN in order for UNEX to meet its contractual obligations to THEN. Predictably, the Instructor must agree to grant to UNEX the same rights granted by UNEX to THEN, namely "the sole, exclusive and irrevocable right under copyright and otherwise to make, produce and copyright by any means or technology now known or hereafter devised Recordings of all UNEX Classes taught by Instructor" as well as "the sole, exclusive and irrevocable right under copyright and otherwise to exhibit, perform, broadcast, transmit, publish, reproduce, manufacture, distribute, advertise, sell, rent, lease, market, publicize, promote, merchandise, provide technical support for, license and otherwise exploit, generally deal in and with and turn to account the Recordings by all means and technology and in all media and forms of expression and communication now known or later developed in all languages throughout the Territory in perpetuity." The Instructor must acknowledge and agree that "THEN shall be deemed the author of the Recordings" and that the "Instructor has no rights of any kind or nature in the Recordings of UNEX Classes taught by the Instructor;" and must "forever waive any right to assert any rule, law, decree, judicial decision or administrative order of any kind throughout the world, which allows Instructor any right in the moral rights (droit moral) in the Recordings."
According to Exhibit A, the "Instructor must not permit the Course Materials utilized by the Instructor for UNEX Classes taught during the Production Period to be recorded by any Technology, except by THEN" unless it is approved by THEN or is restricted to publication in print form on paper (e.g. books). The Instructor is also obligated to assist UNEX and THEN in securing releases to all copyrighted material used in the Instructor's course. And just as UNEX must use its best efforts to cause the Instructor to sign the Instructor Agreement, so the "Instructor shall use Instructor's best efforts to cause all guest lecturers taking part in UNEX Classes taught by such Instructor to execute agreements approved by UNEX and THEN that are consistent with the balance of the provisions of Exhibit A." Finally, the Instructor is required to execute any other documents consistent with the terms of the Instructor Agreement, as requested by UNEX or THEN, and if the Instructor fails to do so, "the Instructor shall be deemed to have appointed UNEX and/or THEN as Instructor's irrevocable attorney-in-fact with full power of substitution and delegation and with full and complete right and authority . . . to perform such acts and take such proceedings in the name of Instructor. . "
The Instructor Agreement, a formal written contract between employee and employer in which employee rights are legally transferred to the employer, was seen by the parties in 1994 as the way UNEX would secure the power and authority required to comply with its Agreement with THEN, at the expense of the Instructors. Today both parties contend that such Instructor Agreements are not necessary. According to the terms of a revised agreement, they argue, which has not yet been finalized, the actual ownership of electronic courses would reside solely with UNEX while THEN would merely have exclusive rights of distribution. And UNEX now maintains that its ownership rights are automatic and would not require any formal contract with their employees. As David Menninger, UCLA's Associate Dean of Continuing Education and UCLA Extension, explained to me in a letter in December, 1997, "since the focus of the Extension/THEN relationship has shifted to Extension online courses, for which the Regents of the University of California retain ownership, no such instructor's agreement has ever been used, nor is any further need anticipated."
It is not clear upon what legal basis Menninger asserts his claim that the Regents of the University of California retain ownership, given the traditional legal rights of the Instructors to these courses. According to Kathy Whenmouth, technology transfer specialist in the University of California's President's Office, the University does not yet have any policy on the copyright of online course materials. Clearly, the matter is far from settled. What exactly are the rights of instructors and the Regents? Now that the UNEX/THEN Agreement has seen thelight of day, it will no doubt become a focus of controversy. Is it legal? Will it withstand a legal challenge? Whatever the ultimate legal status of the Agreement,which would have to be determined in court, this episode sheds much light upon the methods, intentions, and visions of those involved in the commoditization and commercialization of university instruction.
The second agreement, between America On Line (AOL) and UC Berkeley (The Regents of the University of California) points in much the same direction. Signed on July 26, 1995, this agreement, which also contains a confidentiality clause, centers upon Berkeley's extension program, the Center for Media and Independent Learning. Here the arrangement from the outset entails only the licensing of course distribution rights without any transfer of copyright from the university to the company. According to the agreement, the University aims to offer "electronic courses in a broad spectrum of disciplines (Arts and Humanities, Business and Management, Computer Science, Hazardous Materials Management, Natural Sciences, Social Sciences), for credit or for professional development." Accordingly, the "University grants AOL a non-exclusive, revocable, worldwide license to market, license, distribute, and promote" these courses. In doing so, the "University represents and warrants to AOL" that such offerings "will not infringe on or violate any copyright, patent or any other proprietary right of any third party. ..." Once again, as was the case with the UCLA- THEN agreement, the University is representing to AOL that it alone owns the course materials and that no third parties, including the faculty who develop courses, have any rights to them. In order to secure faculty compliance with this claim, the University has drawn up a generic course development "letter of agreement" for instructors to execute. In this document, which instructors are required to sign, the University informs instructors that "The Regents of the University of California will own the copyright to all materials you develop, in print or other media, for use in this UC Extension course . ... and we retain the right to continue offering the course should you resign as instructor." By means of this contract the University obtains, and the instructors abandon, ownership of all course materials. Instructors are paid a modest "honorarium" for developing the course and abandoning their rights, payable half on acceptance of the materials and half on actual delivery of the course. Whereas AOL receives ten percent of all royalty revenues, the instructors receive none.
The final example is possibly the most far-reaching, involving the Denver-based company Real Education, Inc. (Real Ed) and the entire University of Colorado. Real Education was founded in 1996 by CEO Rob Helmick, an attorney and former general counsel for various universities who specialized in education law and the "merger and acquisition of educational institutions worldwide." In 1996 Helmick's law firm, Helmick and Associates International, acquired Real Information Systems, one of the leading worldwide web production companies in the U.S., and created Real Education, Inc., "so that universities could easily outsource instruction." Real Education has become a major player in the outsourcing of university online instruction and currently has contracts with some twenty universities and colleges throughout the United States, including the University of Colorado, Northern Illinois University, Rogers University, and the Colorado Community Colleges. The company specializes in providing universities with all of the hardware, software, internet links and technical support they need for online course delivery, including assistance with course development. It is now collaborating with Microsoft and Simon and Schuster to create a standard for the industry. For its part, the University of Colorado has been in the forefront of online education and recently won the Eddy Award of the National Science Foundation as the "Number One Online University in the World."
After some preliminary collaboration, Real Ed and the University of Colorado entered into a formal agreement on May 27, 1997. The arrangement engages Real Ed to provide the technical means for online course development and delivery but the University retains all copyright to course material. According to the agreement, the "University, on behalf of its four campuses, wishes to develop its online capability utilizing Real Ed's Einstein Network Version 2.5 (or the latest version thereof) to create University credit and non-credit courses for delivery in the United States and abroad." As part of its obligations, Real Ed agrees to "oversee the adaptation of existing distance-learning courses and collaborate with the University's faculty and staff in the development of new courses" and to "provide instructional design support to University faculty to assist in the transfer of lectures to the online format." However, according to the contract, "it is understood and agreed that the relationship of University and Real Ed, with respect to all course development, is that of author and editor, final approval and ownership rights over University-developed material will vest in the University. . . ." Once again, in making a deal with a private firm, the University is explicitly identifying itself as the "author" of all course materials having full "ownership rights."
Having made clear its proprietary claims vis a vis Real Ed, the University has also made an effort to establish the contractual basis for such claims vis a vis its faculty. The University has drawn up an "Agreement for Development of Courses Between the Regents of the University of Colorado and Faculty Course Developer" to be signed by all faculty developing online courses. According to this agreement, "Faculty acknowledges that the 'on-line course is deemed as a 'work made for hire' within the meaning of the U.S. Copyright Act of 1976 and The Board of Regents of the University of Colorado shall own exclusively and forever all rights thereto including derivative works." In addition, "Faculty acknowledges and agrees that the 'on-line' course itself may not be used in faculty consulting, in delivering lectures or presentations to another academic institution, and may not be duplicated or distributed to other individuals, academic institutions or corporations without a written agreement and approval of the University." In return for developing a typical three-credit course and assigning copyright on all course materials to the University, the faculty member receives one thousand dollars plus royalties of ten percent of revenues up to $125,000 and fifteen percent thereafter. (Real Ed receives five thousand dollars for each course developed plus one hundred dollars per student.) At present, faculty involvement in online course development is voluntary. However, according to the agreement with Real Ed, the University has the power to designate which faculty will develop such courses. According to Maureen Schlenker of the University of Colorado at Denver who oversees "UC Online," departments might require faculty to participate. No doubt untenured and part-time instructors, those with the least job security and lowest pay, will most likely be pressed into service. Marvin D. Loflin, dean of the college of arts and sciences on the Denver campus, says he is considering plans to hire non-professorial "teaching associates" to teach on-line courses. "I'm prepared to make over the whole infrastructure of higher education," he recently proclaimed to the Chronicle of Higher Education (March 27, 1998, p. A30).
These agreements herald a new regime in higher education, one which is taking hold of the nation's campuses at an accelerating rate: the commoditization and commercialization of instruction. Extension programs are the cutting edge for this new commercial ethos not only because of their obvious involvement in distance learning but also because they are typically staffed by the most vulnerable instructors, people who have little job security and would thus be most ready to comply with university demands. But as the arrangement between the University of Colorado and Real Ed makes especially clear, the new regime of online education extends far beyond university extension programs and the most vulnerable. Indeed, it is now becoming increasingly apparent that the real market for online courses will be the on-campus population, as the experience of the University of Colorado aleady indicates. And as UCLA's Instructional Enhancement Initiative makes plain, faculty at all levels will ultimately be drawn into the new regime, through encouragement or coercion. The implications of these agreements therefore must be considered seriously by anyone who is using or plans to use electronic means to enhance or deliver their courses. Who owns the material you have placed on the Website or e-mail? Without a clear and definitive assertion of copyright claims by faculty, the universities will usurp such rights by default.
This is a matter of some urgency and it is especially pressing for those faculty who work in a non-union workplace. Unionized faculty have at least an organization and collective bargaining rights through which they might fight for their rightful claims. But non-unionized faculty must invent other means. One strategy might be for faculty to file for injunctions against their universities to prevent them from entering into or complying with agreements in which they make claim to copyright on course materials that legally belong to faculty. These agreements might well be illegal, perhaps involving fraud, and hence invalid. Faculty might also investigate whether or not their university is involved in the delivery of any courses without having first obtained a signed copyright agreement with the instructor. Once again, this might well involve an illegal infringement of copyright. But by whatever means, collective bargaining, litigation, or direct action, faculty must act, and act now, to preserve their rights.
University control over copyright is the sine qua non of the Digital Diploma Mills. Without it the universities and their corporate partners cannot proceed. As the CEO of Simon and Schuster, Jonathan Newcomb, has stated, commercial online education presupposes "advances in digital technology coupled with the protection of copyright in cyberspace." (Emphasis added). Only by resisting and opposing university control over copyright will faculty be able to preserve their legal rights, their autonomy, their jobs, and, above all, the quality and integrity of higher education. The fate of higher education is in their hands.