Charters: Just Stop Listening To Their Twisted Logic…

As anyone who has engaged charter supporters in their quest to determine what is best for education in the long run, knows these myths are false…..

• Charters teach better.
• Charters score better on standardized tests
• Charters have few discipline problems
• Charters have a high demand for seats, you can’t argue against high demand.

None of these hold up under scrutiny…  One quickly finds that in Delaware, whenever anyone argues for the continuation of Charter Schools, they are arguing for the continuation of one single charter school:  The Charter School of Newark. or CSN for short.. (One almost wishes they would add Yorklyn to their title so we could experience fond memories whenever we called it:  CSN & Y…)

There is only one argument for charters that has any merit, and that merit is not logical, but a strong one politically… People want to send their children to charters so why get rid of them…

True, Newark Charter (sorry Yorklyn) does have a waiting list, and so does Red Clay’s Wilmington Charter…

But what about the great and prestigious Academy of Dover?

Kevin tells us… 

Mr. Blowman noted that the school’s enrollment has declined steadily over the years, from 308 students in school year 2013-14 to 247 students this school year.

Their approved charter enrollment is 300 students.  Charters can’t go below 80% of that, so their magic number is 240.  How bad is it?  To put things in perspective, they decreased their Kindergarten classes from 3 to 2 this year because of lower enrollment.  That is their bread and butter for future growth….

So… Here is the bottom line….

IF……

• Charters can’t teach better.
• Charters can’t score better on standardized tests
• Charters can’t have few discipline problems
• Charters can’t have a high demand for seats,

Why do we still have this failed policy in place???  For just one school protected by the legislator who wrote the original legislation allowing Delaware to expirement with the then new innovation then called the Charter School theory?  He is, after all the head of the Senate Education Committee and he will have to be voted out or overridden by all other members to effect any change…

Why are we letting one person run the rest of Delaware’s public schools into the ground?  Even with one fifth of their income stolen from them, Delaware public schools are still the main choice of Delaware parents… Charters can’t even keep the minimum required number of seats filled?

This is why all need to send a donation to Dave Sokola’s opponent, Meredith Chapman.   If you live in the eighth, which runs the western border from Newark Charter School up to Hockessin, you lucky few get to vote to replace him.

 

Fed’s New Rules Will Force Revisit To SB 51: Sokola’s Death Star

As the Rogue Ones all gather their forces to defeat the dark monstrosity being built on the edge of their star system, they got a much needed assist from the Feds coming to their rescue.

It was anticipated that teacher colleges would need to provide proof of their graduates’ classroom skills in helping advance student learning, under proposed rules issued Nov. 25 by the U.S. Department of Education…

Programs that failed to do so could eventually be blocked from offering financial aid to would-be K-12 teachers in the form of federal Teacher Education Assistance for College and Higher Education, or TEACH, grants, according to the long-delayed proposal.  The rules are the Obama administration’s attempt to toughen what have long been considered ineffectual requirements left over from “No Child Left Behind”, for teacher-preparation programs in Title II of the Higher Education Act…

The U.S. Department of Education yesterday released its long-awaited final rules on teacher preparation.

Under the rules, states will be required each year to rate all of its traditional, alternative and distance prep programs as either effective, at-risk, or low-performing….

The annual ratings will be based on several metrics, such as a) the number of graduates who get jobs in high-needs schools, b) how long these graduates stay in the teaching profession, and c) how effective they are as teachers, judging from classroom observations as well as their students’ academic performance...

This is in direct opposition to the thrust of Dave Sokola’s educational policies which have had the direct consequence of destroying public education, thereby elevating and illuminating Charter Schools as the more desirable.  His policies preclude running off teachers, they preclude closing schools, and they preclude holding public schools to low ratings while providing Charter Schools with high ones… 

As of today, the thrust of all those policies now take us in the wrong direction to get Title I funding.

• Instead of running teachers out of high needs schools, we need to get them to stay in high needs schools.
• Instead of helping the state achieve it’s educational goals, TFA (Teachers For America) now hinders the state from achieving its goals.
• Instead of making life hell on teachers in high needs schools, the state needs to all it can to maintain, grow, and prosper all those teachers in high needs schools. Every teacher in a high needs school  who quits, now endangers the income the state receives from the Federal Government. Free money that would need to be made up, if it were ever lost.

In a major change from the proposed rules—which were subject to heavy criticism from the field—student learning will not have to be based on test scores or the proxy of teacher evaluations based on student test gains; rather, states will have the flexibility to use other measures deemed “relevant to student outcomes” and determine how various components of their systems are weighted…

 

This is the exact passage which will require the tweaking of SB51 or now it would just be reworking Title 14, Chapter 12…Subchapter VIII – Educator Preparation Programs.…

e) Educator preparation programs shall collaborate with the Department to collect and report data on the performance and effectiveness of program graduates. At a minimum, such data shall measure performance and effectiveness of program graduates by student achievement. The effectiveness of each graduate shall be reported for a period of 5 years following graduation for each graduate who is employed as an educator in the State. Data shall be reported on an annual basis. The Department shall make such data available to the public.

(f) The Department shall promulgate rules and regulations governing educator preparation programs pursuant to this subchapter in collaboration with Delaware educators.

And here is the proper tweaking necessary to put Delaware’s Empire of Education, back under Inter-Galactic Law….. 🙂

e) Educator preparation programs shall collaborate with the Department to collect and report data on the performance and effectiveness of program graduates. At a minimum, s Such data measures performance and the effectiveness of educator preparation program graduates by student achievement. The effectiveness of each graduate shall be reported for a period of 5 years following graduation for each graduate who is employed as an educator in the State. Data shall be reported on an annual basis. The Department shall make such data available to the public. State mandated student test scores which have been proven to be ineffective determiners of teacher effectiveness, cannot be part of the evaluation process.

(f) The Department with the approval of the General Assembly, shall promulgate rules and regulations governing educator preparation programs pursuant to this subchapter in collaboration with Delaware educators.

=====

I look forward to these being put on the table in the first days of the new legislature…

For the timeline is thus… Under the rules, states must establish their reporting systems in the 2016-2017 school year, and can use the following school year to test out their systems. All reporting systems must be in effect by 2018-2019 school year.

=====

In another change from the draft rules, states will no longer be required to ensure that programs only accept top-performing students, as long as all students are held to a high bar by the program’s end. The aim here is to ensure that prep programs can recruit diverse candidates into the teaching profession.

Requiring another change in Sokola’s SB51 which is now

Title 14  Chapter 12…

Subchapter VIII.  Education Preparation Programs

• (b) Each educator preparation program approved by the Department shall establish rigorous entry requirements as prerequisites for admission into the program. At a minimum, each program shall require applicants to:

  (1) Have a grade point average of at least a 3.0 on a 4.0 scale or a grade point average in the top fiftieth percentile for coursework completed during the most recent 2 years of the applicant’s general education, whether secondary or post-secondary; or

  (2) (1) Demonstrate mastery of general knowledge, including the ability to read, write, and compute, by achieving a minimum score on a standardized test normed to the general college-bound population, such as Praxis, Scholastic Aptitude Test (SAT), or American College Test (ACT), as approved by the Department.

  Each educator preparation program may waive these admissions requirements for up to 10 20%of the students admitted. Programs shall implement strategies to ensure that students admitted under such a waiver receive assistance to demonstrate competencies to successfully meet requirements for program completion.

  =====

  Never underestimate the power …of the Force…..

 

Verdict Is In: Dropping Standardized Testing Is Good For Poverty And Minority Students

Data shows tests like the SAT are biased against students from low-income households.

Poorer students tend to perform worse on the test. The difference might be the costly prep courses, books and tutors, some experts say. Blacks and Hispanics also consistently score lower on the SAT than whites.The new thinking is that dropping the SAT requirement might encourage more low-income students to apply. But does it really increase diversity among enrolled students?

We have have the first trials…. Here are results of minority representation in each of these 4 year colleges before and after the test score became optional for admission…………

In 2011 Wake Forest dropped the SAT test as a requirement to entering their colleges. Before Wake Forest made its admission process test-optional for freshmen entering in 2009, about 18% of the students were non-white. The following year, the number jumped to 23% and it now stands at 30%.

The share of students from low-income households who are eligible for Federal Pell grants also shot up to 11% last year, compared to 7.5% the year before the policy was implemented, according to data provided by the school.

In other words the inherent bias of the test was preventing many students from achieving Pell Grants and being accepted into a school in which they could otherwise succeed….

At Marist College in New York, which dropped the requirement for the freshman class enrolling in 2011, the share of minority students has jumped from about 14% to nearly 18%.

At Franklin & Marshall College there has been a more modest increase in the share of minority students over the past decade. The school, in Lancaster, Pennsylvania, was one of the first to go test-optional. But it has seen a bigger jump in enrolled low-income students than some of the other schools: from 7% to 18%.

None of these schools had to water down their curriculum due to people entering schools based more on both their GPA’s and teachers’ recommendations, and less on a standardized test score that was inherently biased against them due to environmental factors of their upbringing…

The ability of poor and minorities to succeed in college is independent of their SAT test score…

If fact, these test scores were preventing good solid citizens from achieving their dreams ….

One would assume the Smarter Balanced Assessment actually takes that one step further…

Instead of simply limiting college choices, it now carries this same stigma right down to the tests in lower 3rd grade where these biased results now insist one must be dumber and not on par with those students with whom one in class equally competes, who all happen to be lily white and have rich parents…
Opting out of the Smarter Balanced should be mandatory for every poor and minority child in Delaware…   It is the ONLY way to achieve your dreams it appears……

What YOU Can Do To Fix Delaware’s Education…..

In writing a comment reply I almost tacked this on because it readily became apparent to me why despite Delaware’s education apparatus being in fairly good shape, we are beset with a battering of how f’d-up our local schools are… As any parent knows, their school is not f’d-up and ESPECIALLY when you put an assortment of parents across the state in a room and ask questions, you readily discern there is a dichotomy between how they feel about their  child’s school, versus the generalities of the state’s running this or that educational program…

The gist being that generally all education is f’d-up; but somehow their schools are awesome…

It is time to shoot the messenger….

Dave Sokola initiated the charter school process back when the first Clinton ran the White House… Particularly now that charters have a black eye, he has used the Educational committee to sneak lobbyist-written legislation through passage and a fellow Newark buddy’s signature to give Charters exceptional rights and access which no one else has…

What ever his reason, that is on him.. (It is not “the children”; his policies have made their lives hell).. But as Delaware citizens we have a choice this November to put our school bickerings on a back burner and move forward with improving the quality of education directly at the student level,….. OR we can continue to have the same confrontations that always say the same things on both sides, that are a back and forth of nothing that has not already been said…

Talk is cheap… As with your children, as with the upkeep of your house, as with the constant health of your car and your own body, if you want to get something done, you have to take the initial action yourself.

There is a wonderful human being named Meredith Chapman now challenging Dave Sokola for his 8th District Senatorial seat… a territory that covers the northeast corner of our state from Newark to Hockessin .

If she is able to knock off Dave, then our constant blather of racist inspired public school battering (they simply don’t want to go to school with blacks…Period),  evaporates… In its place we have a clear day with bright sun to actually turn attention to what helps children…

We know.

Exactly.

What helps children…

If we seriously want to improve education, we need to have an 11:1 student teacher ratio in grades k – 5 and in grade 9 in all schools where over 50% of the student body is at or below poverty level….

This applies what works best to those areas that need work… Nothing else is as effective… Nothing.  The best way to motivate people to learn, is to have someone they admire who knows them and mentors them to learn.  In wealthy districts that role can well be filled by parents.  Therefore wealthy districts don’t need as much attention.. But when you have a child entering the school system behind by a 5000 word vocabulary, you have to do something first to catch them up, and then you have to continue a process that continually advances them forward so at some future point in their lives, they enter the workplace on parity with those who were given a now very lucky head start in life…

There are four other things that must be done but in truth all those four are done solely to allocate necessary resources to the only tried and true method of teaching…. One on one involvement…. 11:1 is manageable.

This will NEVER  happen as long as Dave Sokola is in the Senate…  You’ve had 25 years of watching him go THE WRONG WAY!

And like a pinned flea, so far he has squirmed his way out from being caught, and slipped to bite public education at their hair follicles again and again… Across 25 years our fingers just couldn’t seem to grasp the blood engorged body to pull it out of the coiffured entanglements of our educational apparatus… So we accepted it instead… and after every bite, we scratch our skin raw..

We got bitten again, again, and again, and again, and again… (Did I hit the right number or legislative pieces? )..

This time we have tweezers in the form of Meredith Chapman.  Time to get that little bugger OUTTA THERE!….

 

They Were Right Back Then; They Are Wrong Now. The Reality Of What They Warned Us Against, Is Taking Place Right Before Our Very Eyes…….

Court Seal Put On Whistleblower’s Account of Coleman’s SAT Wrongdoing

It takes a little sleuthing to figure out what happened.

In a nutshell the game was up when Manuel Alfaro, who was the executive director of assessment design and development at the College Board went online at Linkdin and posted some cryptic messages.  Over time this was his story.

Coleman brought him in a month after his takeover of  SAT by Common Core. Coleman to meet test deadlines simply transferred Common Core’s material over to the SAT data base and had hired Alfaro to create a fake research and development operation to get around copyright laws… Basically his job was to make it look like it was not stolen.

The test was published and distributed before being proof read.  Proof readers were eventually hired but after the test had been sent out… The May 2016 test was this test, it is the one Juniors took in Delaware to determine… whatever…  Small problems in this test were wrong answers marked as right ones, or no correct answer available among the 5 options. Bigger problems involved the “fake” questions now regularly inserted in such tests which do not count towards the score and are only there to test their quality for use in future tests.  These inserted questions were so difficult and time consuming, they prevented students from finishing the test.  Hence the scores of May 2016 will be lower than years past.

However Alfaro though he lived through it, does not have the tests. Therefore he was appealing to several states including Delaware, to use the transparency clauses in their contracts to bypass the College Board’s proprietary restrictions and have them find the questions, answers, and details to back up what he lived through…

His computer has been confiscated by the FBI.  Now, because of this court case, a gag order has been levied upon him and all involved and all relevant documents have been put under court seal.

Simultaneous to this, Reuters is reporting on an East Asian cheating scandal involving the SAT and PSAT  Apparently there is only a small pool of questions which many firms-for-hire to boost scores, already have.  They teach the questions and answers and their customers score very high on these tests.  Sourced out of East Asia Reuters was given 400 of the current questions from an outside source and sent copies of them to the College Board to confirm they were legit.  The College Board pleaded with them not to publish these actual questions and answers since they were the only questions in use this school year.

Bottom line: anyone looking for reassurance that the SAT is a better test under Coleman will be very disappointed.

As Reuters says… the test has never been worse….

“200 hundred items were sent to the Content Advisory Committee for review. Their feedback was scathing. One committee member wrote an 11-page document letting the College Board know that these were the worst items he had ever seen. In the past, he had not seen the worst items because they were rejected due to poor item statistics. In fact, the usual 15-20 percent of the items that are pretested and are rejected due to poor performance, were on the May 2016 test used to hold students and teachers accountable.”

Smarter Balanced Results 2016

Remember this.

As you view the results posted saying how Common Core has improved our teaching over the past year between the first taking and second taking of the tests…. these tests are graded on a curve…

One cannot compare one year’s test to another because the curve is set each new year to show a different result..

In plain language, this means the level of proficiency is NOT set by the number of right answers…. but is set by how your right number of answers compare to everyone else…

I have seen nothing regarding the cut scores setting remaining consistent between 2015 and 2016. Being changed by the committee overseeing them,  results in better scores (although we can see they were not set much better)…

This was predicted when we first debated Common Core and the Smarter Balanced. It has now come to pass.

Secondly.

If this overall program were working, we should have seen far greater positive results than what we did. There are political reasons as well as financial reasons for this slow improvement… (If you show too much improvement too fast, no one will invest to gain greater improvement..)

Showing one or two percentages of people doing better is not glowing results. Not after two full years of teaching to the test…

The real result is how these same children will do on the next NAEP, the nation’s report card. Overall in both Delaware and the nation, ever since Common Core was affected, those scores (which since the 80’s had always climbed), have gone down…

If you brag about increased Smarter Scores, yet your real report card score goes down, you are no better than those teachers denigrated as passing people into the next grade who failed to meet the expectation…

In conclusion, all of this is completely meaningless. The scores show us nothing for they are arbitrarily made up. The tests show us nothing because they too are made up. The grading shows us nothing because it is made up… Only the NAEP shows us anything now, because it is a test not curved which has been consistent for years… If it shows improvement then this program is indeed working; if it doesn’t, then we need to pull the plug and return to what once worked so well.

What we DO have (since these tests do not show us anything) is a big waste of money… Make that a huge waste of money…. Money that could have been spent on???

Something like an 11:1 student teacher ratio in all schools over 50% poverty levels….

So do not be persuaded by appeals that improvement is at hand.. For the data included has some rather darkening and troubling implications… The Science and Social Studies DCAS scores have dropped consistently since Common Core was invented and put into practice…

Our Delaware kids ARE becoming dumber and dumber..Our solitary focus on math and ENGLISH has eclipsed time for civics and science. Everyone knows how to understand and speak English, even if they don’t know what an indecent participle is. But science and social studies are the determiner of an ignorant society or a knowledgeable one.. Delaware is becoming more and more ignorant the more we embrace Common Core… readily seen because those two scores are not arbitrarily set on a curve; they are based on the number of right and wrong answers. More Delawareans are getting the answers wrong consistently every year since Common Core was enacted.

So let’s grade Markell’s administration….

Our English(reading) scores have gone down over his administrations (due to test change).
Our Math scores have gone down over his administration (due to test change).
Our Social Studies scores have gone down over his administration.
Our Science scores have gone down over his administration….
Our NAEP scores have gone down over his administration….

How can that be called a success?

Graduation After 10th Grade

Like every new idea, ones defenses go up… “Whoa there, buddy…. ”

Except for sports careers, it kinda does make sense….

We ask children who’ve finished learning, emotionally, psychologically, (and for the most part) biologically, to stay on-board for two years of “extra” curricular activities which when we reflect back on our years, all of which we learned academically in those two years, rarely get used today…. (sex is a different story).

Before you jump the shark, recognize this:  that if we keep the final two years optional… (by making them years to opt-in on), we also make them preferential which tends to allow discipline to be internally enforced by each student who chooses to continue onward ( ie, the reality of being kicked out is a real negative; it is no longer something to brag about)…

Here’s why. The issue I hear from High Schools today, and this involves input from students, faculty, parents and administrators, boils down to this:  that a lot of young adults in the upper grades do NOT WANT TO LEARN….  Every negative aspect stems from that single ubiquitous elephant in the room:  discipline problems, lack of personal respect, work ethic, mental alertness, focus, fights, productivity, lack of motivation, etc. …

And every time a round table discusses how to improve high school performance, someone (this is true) inevitably says:  if only we could cull those who don’t want to be there, most of our problems would go away… Sigh:  but that will never happen……………………………….”

So what I’m asking:  is…. why can’t that happen?

Rule 1:  Every child must be in school till age 18.

In society, this is a relative new rule.  When there is no solid structure supporting society adulthood entry levels move downward, usually settling around somewhere in the low teens, correlating with puberty for the most part…  Romans married off their children at 13. That was also the age of dissolving parent-child bonds in the Middle Ages on the continent of Europe.   Native Americans, both North and South, also became adults then…

Obviously there must be precedent: our own Common Core Standards stop measuring before reaching the upper grades.

So, instead of forcing people who for multiple reasons do not want to continue schooling to go against their will through the motions of being schooled, what if we provided an alternative?

For example what if we allowed them to work at something on the scale of our military, which was the template for the CCC, Civilian Conservation Corps?  Those men like the military, stayed in camps, had discipline structure,  meals and lodging provided, and worked hard (physical labor) for a dollar a day…  When they were ready to leave, they had a nest egg on which to begin. Today, we should do $20 a day.

Yes. It would take planning to iron out details.. We would need input from a variety of societal perspectives to discover just the right mix.

But, a 16 year old could be given the option, based on his past feeling over his 11 years (counting kindergarten) of public schooling, to decide whether or not they wanted to start work, or go to college… Their growing brain would continue learning, just not stuff that was irrelevant to them…

And if someone ever made the wrong choice by staying in classes inappropriate for them, and became consistently disruptive or violent, there would be a ready option available outside of public schooling into which we quickly place them.

After all for our first 200 years, most of America’s success was built on the backs of Americans who did not finish high school…

This solution would solve or at least dilute many of high school’s problems.

• Disruptive Classes
• Fewer Discipline events
• Poor Work Ethic
• Disrespect for Authority
• Low test scores (that are meaningless to those who care not.)

 

And there is a model. In a corporation when one has a division of ones company that is not adding to the bottom line but taking from it, one sells it off.  As soon as the transaction occurs, ones results improve…

Why not use that same model in high school and make grades 11 and 12 elective? By simply having an alternative, most students will choose to continue to opt-in, willingly continuing their free public education because is serves in their best long-term interests to do so…

Once they’ve gained this realization, their whole attitude changes….

Because the entire problem with High Schools today is that we force them to deal with people who DON’T want to be there (like prisons)…  And I don’t know about you, but my High School was not like that. That type of element was just not around.

I’m proposing we make this happen in our schools …

 

 

 

 

 

 

Racism, Prejudice, and the KKK

Amazingly, there still continues to be some confusion, as I’m sure back during the Reconstruction Era when white supremacists first insisted that black voters take some type of “smarts” test before entering the voting booth, there was confusion among many Afro Americans at that time who thought having tests of knowledge was indeed a good idea…

History proved who was right; and who were wrong.  When you give someone trying to keep your race down, the tools to do so, they will use them and your race will be kept down.

That is why it is hard for many of us in educational circles to understand how any Afro-American can be in favor of using the Smarter Balanced Assessment to grade their child…

Because unlike 1890 when literacy tests were begun, today all have information on what these tests are… 

Let me show you a picture of racism in 2016….

This is Delaware’s official ELA target.  (Click image to enlarge.)

Whites have to grow from 61.5 to 80.8… a total of 19.3 points….

Asians have to grow from 77.1 to 88.5…..a total of 11.4 points…..

Blacks have to grow from  35.8 to 67.9….a total of  32.1 points…..

Hispanics have to grow from 39.0 to 69.5… a total of 30.5 points…..

Low incomes have to grow from 34.2 to 67.1…. a total of 32.9 points…

Disabilities…. have to grow from 19.3 to 59.6…. a total of 40.3 points…

=====

Pure racism. Fully endorsed by the KKK…. Hear them now?   “YEAH!!!!  That’s what we’re talkin’ about…..”

(Don’t blame me; I’m not even the messenger…This is from the DOE website…)

 

This is Delaware’s target.  (Click image to enlarge.)

Whites have to grow from 49.2 to 74.6… a total of 25.4 points….

Asians have to grow from 70.7 to 85.4…..a total of 14.7 points…..

Blacks have to grow from 22.0 to 61.0….a total of  39.0 points…..

Hispanics have to grow from 28.6 to 64.3… a total of 38.7 points…..

Low incomes have to grow from 23.8 to 61.9…. a total of 38.1 points…

Disabilities…. have to grow from 15.0 to 57.5…. a total of 42.5 points.

 

Can anyone tell me how this is any different than guessing the number of jelly beans in a jar?  Whites have to show a 51.6% improvement… Blacks have to show a 177% improvement… Might as well label blacks as disabled: 283%

What is being said here, disguised as an attempt to elevate blacksscores, is that they have to jump through a different hoop than the rest of us… why?  Skin color, of course…..

No ifs. No buts. No ands…

There are proven ways to raise the results of our lowest scoring children. Corporate types flat out do not want the right answer proven to be effective over and over and over again..  I have covered it so many times, it is pointless to do it again. But for now, rest assured.  This way, shown above?….  Leads us nowhere…..

Except to make the KKK very happy….. 🙂   Can you hear them?

“Hooray, Hooray,  Blacks will be second class citizens again.. Whoopee!  Toast!  Celebrate!  Yeah, Greg Lavelle* and all the other supporters of the Smarter Balanced Assessment!!!  Hip, Hip, Hooray!”

 

 

 

How To Respond To A DMCA Takedown

Granted.  Most of us are not legal eagles.  In fact we are kind of scared of the law… We live our entire lives free of legal notice and suddenly one day, out of nowhere, BAM, we get one…

Our fear: “Oh my goodness, I’m going to be bankrupt”.. We then quickly undo what we did and hope that maybe they will forget and follow up with anything else.”

And that is what they hope we will do….

 

But.  That is not the law.  For there are entities who both file and receive copyright violations all the time… Sony, Disney, Samsung, Apple, Google for example.  Where would today’s society be without any of those?

 

The protections the law put in place for them… are also there for you… it is just that you don’t have 150 lawyers working for you and they do…

 

If you are reading this, it is probably because Pearson used Twitter or Blogspot to force you to remove some of their test questions (or links to them) which you (in shock over what they revealed) bravely determined needed to be exposed and announced, so that normal and proper societal actions could be taken to rectify the damage these items were doing to the brains of children….

 

So let us first explain how DMCA works and then you will see how it works backwards as well to your advantage….

 

Imagine you took a picture of yourself and your old college friends acting silly and perhaps a little lewd in some bar….   Now imagine you are later googling images related to your name and see on some commercial site, that same picture was used to represent something totally unrelated to you…  Your first fear is that Snoopy in Human Relations will flag it to your superior.  So you want it quietly gone…. and you can, under the DMCA. You file a DMCA with the ISP …  In it you provide your personal details,  the details of the Internet location of the offending product, and the reason why the image should be taken down (unauthorized use), and then demand it be removed.  Now…. most likely you didn’t copyright or register that photo as being yours. Doing so takes considerable time and money and who does that to facebook photos? So the end, you may lose.  But, because ISP’s get millions of requests per day, they take them down immediately with no concern over right and wrong. It automatically comes down. (Not sure, but at the speed at which they do, it must be done without human involvement or oversight)…

Immediately it is blocked from being seen.  If the party posting it ever notices it is missing, they can file a DMCA Counter Notice. At this point, they don’t even know “who” you represent as the person requiring them to take it down… All they know you as, is that “cease and desist”person. Furthermore, if they contest it, they must blindly provide all their personal information to you in good faith, and they never get to know who filed the complaint, unless they ultimately pursue expensive legal action…

This makes it easy to manipulate. If you have an “enemy” at your job site (who maybe once asked you out and you refused, and then became your troll),  and you post something that is flattering to you, he or she can file a DMCA for no reason, making it immediately go away for a minimum of 10 days and force you to counter and go through the human chain to get it restored. This flawed system is unequally balanced and currently is tilted to allow anyone to use a bullying tactic of forcing immediate take-downs of anything one doesn’t want the public to see… rightly or wrongly.

At the time of the law’s inception, this was originally deemed a good thing.  At that time this immediate course of action was seen as the better alternative over allowing copyright infringement to continue indefinitely until a case was resolved in court…. So for now, the burden of proof fully rests on the defendant of a takedown request to prove he is allowed to show the item.

 

Ok. You got a notice. So what do you do?  Well if you are Samsung, and it’s Apple who files a takedown of all mention of your newly rolled-out product, … you file a counter notice…

 

That same privilege extends to you against Pearson.

Copyright owners sometimes send bogus takedown notices that have no basis in law or fact, which are meant solely to intimidate the target. A prompt counter-notice can make these empty threats go away for good.

Here is how you do it:

First, make a backup copy of all the material that you will have to delete. You may need this when you want to restore your web page. Then remove the material in question from your web page. You may substitute a brief note informing potential page viewers that a DMCA attack has been filed against your web page and the material has been temporarily deleted for 10 business days while you contest the DMCA charge via a “Counter Notification Letter”.

Secondly, you should file a counter takedown letter. Provided in the initial takedown will be information on how to contact the ISP, (in our case either Twitter or Blogspot.)

Here is the standard form-letter used by corporate America in their dealings with each other. Customize it to fit your situation…..

==========================================================================

Dear Internet Service Provider:

This letter is written in response to your notification to me of a complaint received about my web page(s). The pages in question are:

(insert list of URLs here)

My response to this complaint is as follows: (include all that apply from list below)

Allegations of Copyright Violation / Digital Millennium Copyright Act

The claims of copyright violation should be rejected because:.

*The material in question is not copyrighted, or the copyright has expired. It is therefore in the public domain and may be reproduced by anyone.

*The complainant has provided no copyright registration information or other tangible evidence that the material in question is in fact copyrighted, and I have a good faith belief that it is not. The allegation of copyright violation is therefore in dispute, and at present unsupported.

*The complainant does not hold the copyright to the material in question, is not the designated representative of the copyright holder, and therefore lacks standing to assert that my use of the material is a violation of any of the owner’s rights.

*Provide a complaint in written form. [17 USC 512(c)(3)(A)]

*Include a physical or electronic signature of the complainant. [17 USC 512(c)(3)(A)(i)]

*Identify the specific copyrighted work claimed to be infringed, or, if multiple copyrighted works are covered by a single complaint, provide a representative list of such works. [17 USC 512(c)(3)(A)(ii)]

*Provide the URLs for the specific files on my web site that are alleged to be infringing. [17 USC 512(c)(3)(A)(iii)]

*Provide sufficient information to identify the complainant, including full name, mailing address, telephone number, and email address. [17 USC 512(c)(3)(A)(iv)]

*Include a written statement that the complainant has a good faith belief that use of the disputed material is not authorized by the copyright owner, its agent, or the law. [17 USC 512(c)(3)(A)(v)]

*Include a written statement that the information in the notification is accurate, and under penalty of perjury, that the complainant is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. [17 USC 512(c)(3)(A)(vi)]
=====

This communication to you is a DMCA counter notification letter as defined in 17 USC 512(g)(3):

I declare, under penalty of perjury, that I have a good faith belief that the complaint of copyright violation is based on mistaken information, misidentification of the material in question, or deliberate misreading of the law.

My name, address, and telephone number are as follows:

(address here)

I hereby consent to the jurisdiction of Federal District Court for the judicial district in which I reside (or, if my address is outside the United States, any judicial district in which you, the ISP, may be found).

I agree to accept service of process from the complainant.

My actual or electronic signature follows:

(electronic or actual signature here)

Having received this counter notification, you are now obligated under 17 USC 512(g)(2)(B) to advise the complainant of this notice, and to restore the material in dispute (or not take the material down in the first place), unless the complainant files suit against me within 10 days.

==========================================================================

As soon as the service provider receives your letter…. it notifies the complainant and awaits their response.

The downside is that as part of the “Counter Notification Letter” you  DO have to state that you will accept a lawsuit from the “Cease and Desist” people.

(Before you send a counter-notice, you should consider carefully whether you are in fact infringing the complaining party’s copyright. There are two reasons for you to consider this carefully. First, the counter-notice requires you to state, under penalty of perjury, that you have a good faith belief that your material was wrongly removed. You do not want to make this claim lightly because it might come back to haunt you. Second, if the complaining party has a good infringement claim, sending a counter-notice may trigger a lawsuit. If you are not prepared to stand up for your use of the copyright owner’s work in a lawsuit, you should think twice about firing back a counter-notice.)

Initially this sounds frightening but it actually works in your favor. For if you were actually infringing on the original “Cease and Desist” people, they could and would have legitimately already filed a lawsuit against you without using the DMCA – thus this requirement on the “Counter Notification Letter” does not open you up to anything that you weren’t already liable for. To pursue, the original “Cease and Desist” people must file a lawsuit IN YOUR DISTRICT COURT if they want to continue. Frequently this would involve travel and legal expenses on their part. If they do not file a lawsuit (most likely outcome), your web host will restore your web page on the tenth day and you are back in business again.

If they do sue, and what you are exposing IS important for society to know… there are some other tricks you can use to keep the material up, tricks which can be loosely defined as making multiple copies and spreading them all over the Internet.  Unless there is a specific instruction stopping you, there is nothing to prevent you from creating another web page that has essentially the same information. If the original page had illustrations, alter them slightly (use any photo editor, add arrows, captions, etc.) so they are “different”. Give the illustrations, and the page a new name (URL identifications), etc. Then put the new page up. If there were links to your old page, include both the link to the old page and your new page in these prior links. If nothing else, this will get your new page into Google’s indexes.

You could even open a new website using the “Free” website offers that are available from many web hosts. Just use the old material on your new free website. Be sure to include a link from somewhere in your old website to “Another example of <whatever> can be found at <your new free website>”. This link will be all that Google needs to get your new website into Google’s index. The object of course, is that you want people to be able to see what you are criticizing. The “Cease and Desist” people will eventually find out about the new website and may repeat the DMCA attack. However they will be spending more effort than you are, and will eventually be forced to give up.

Finally, bring up your problem in an online talk group – e.g. one of the Google Groups. If you are having a problem with the “Cease and Desist” people, the chances are there will be a lot of other people that aren’t happy about them either. Start a “thread” about your problem, and you will probably hear from a lot of people that would like to help. This might well included people outside the U.S. who are not subject to DMCA attacks.

As bloggers (still a new concept legally) you do have some protections. Already it is standard that short quotations will usually be fair use, not copyright infringement. The Copyright Act says that “fair use…for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”  This seems to cover the expose of test questions if done for the public good, but not if stolen by a competitor, which would be theft. It will eventually rise to some court to ultimately decide on who has the upper hand here, the citizens of this country, or an LLC whose headquarters are in England.

American Copyright law particularly favors “transformative” uses — commentary, either praise or criticism, is better than straight copying — but courts have said that even putting a piece of an existing work into a new context (such as a thumbnail in an image search engine) counts as “transformative…

As long as you don’t intend on making money or having people substitute your questions for the ones on the test (laughable in this case), you maintain a great chance of never being sued.  Furthermore and the lawyers of Pearson know this, if in your expose`, you either mocked or parodied the questions, even criticizing them so effectively that no one wanted to by them, THAT STILL DOES NOT  count for having “an effect on the market” under copyright law…..

Furthermore, you are free to report the facts and ideas embodied in another person’s article or web page or test. Copyright only protects “the expression” — the “combination of words and structure” that expresses the factual information — not the facts themselves. By changing a few words around so it is not an exact duplicate, you become even further protected and insulated against court action.

Furthermore,  if  you can establish harm occurred to you in any way by a takedown notice (LLC’s use this all the time) you can use the DMCA’s section 512(f) to sue back.“Any person who knowingly materially misrepresents under this section (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.”

=========

So, see, the law IS not one sided, that is, as long as you pursue and engage in the process… Usually DMCA takedowns only involve one or two steps….

1. Either the person receiving the takedown does not contest and removes the offending content as requested….
2. Of, a counter notice is filed and after 10 days, the material can be reposted….

It rarely goes beyond…

For if Pearson were to file an injunction after you responded, there is nothing to stop you from opening a new website and reposting the material.  If they went after that, it would cost them double, and if it happened again, it would triple the expense they must undergo.  It is called putting money down a rabbit hole.

Why then are counter notices not more frequently done?

Most infringers (as well as most legitimate users) aren’t invested enough in their uploads to invest the energy to learn how to file a counter-notice or take the legal risk in filing one.

Furthermore most people who are subject to a DMCA takedown are unaware of the opportunity to file a counter-notice and many on-line hosts do a very poor job of explaining the process.

It is to this last point, that I address this post.  For the more you know about take-downs, the less you have to fear….

In this case, since we are dealing with the brains of little children and not with something we popped up on our website without thinking, it would be advantageous for everyone who reads this, to send their server a letter (feel free to copy from the above- it’s fair use) and hit Pearson back with as many counter notices as they sent notices…

The law is actually on your side, not their’s; as experts in the law, they know it.  They are just hoping you don’t…. and never find out……

But, there is one more reason, WHY everyone here who was ordered by Pearson to cease and desist, should file a counter notification…..

To bar repeat offenders, the DMCA law requires ISP providers to keep track of how many takedowns you get. Responding with a counter, puts you back to zero.  Right now, everyone who received a takedown notice has a “strike” against them. If you file a counter, that strike goes away… If you don’t, it stays…. you only get three and then you do get kicked off the internet. In today’s world, that is serious.

So before you forget. respond to your ISP and say the take down was done in error. You had fair use of the material.