The Common Core Public License: Guess Who Wins?

On October 10, 2013, I published a post, The Fight to Save Common Core: Count Me Out, in which I briefly discuss the Common Core State Standards (CCSS) public license. In this post, I more closely examine the CCSS license in order to offer a more detailed account of both its contents and the implications of those contents.  The CCSS license betrays the business of CCSS– one where profit potential abounds as those with power excuse themselves from responsibility.

Garnering profits and forsaking responsibility: Cornerstones of corporate reform.

Defining Key Terms

Copyright law is complex. I am not a lawyer; I am a teacher and researcher. As such, I approach this post from the perspective of a researcher attempting to better educate herself (and by extension, my readers) on what exactly this CCSS license includes. In order to foster a clear understanding of this post, I offer now the following definitions of key terminology:

Copyright:  the exclusive legal right, given to an originator or an assignee to print, publish, perform, film, or record literary, artistic, or musical material, and to authorize others to do the same. [Emphasis added.]

Public license: another term for public copyright license.

Terms of use: [That] which one must agree to abide by in order to use a service. Terms of service can also be merely a disclaimer, especially regarding the use of websites. [Emphasis added.]

Fair use: (in US copyright law) the doctrine that brief excerpts of copyright material may, under certain circumstances, be quoted verbatim for purposes such as criticism, news reporting, teaching, and research, without the need for permission from or payment to the copyright holder.

I will discuss more terminology in reference to the CCSS licensing document. However, time for some national standards copyright/terms of use background.

NCTM and NCTE

In preparing for to closely examine the CCSS license, I investigated the copyright situations of two other organizations offering national standards: the National Council of Teachers of Mathematics (NCTM) and the National Council of Teachers of English (NCTE).

It is not unusual for national organizations to copyright their materials, including sets of standards. However, both the NCTM and NCTE standards are completely voluntary: neither is connected to federal funding; neither must be adopted on a “by state” basis, and neither must be adopted in whole.  Moreover– and this is huge– neither the NCTM nor the NCTE standards are connected to high-stakes tests. For these reasons, even though NCTM and NCTE have some form of copyright/terms of use, the CCSS copyright immediately holds more power for its inflexibility coupled with high-stakes consequences.

First, the NCTM copyright information.

NCTM Copyright/Terms of Use

Below, I have reproduced in full the information included on the NCTM website regarding its copyright and associated terms of use. What I immediately notice is that NCTM is not using other companies to write materials (and potentially assessments) for its standards:

All publications of the National Council of Teachers of Mathematics (NCTM), including print, electronic, and Web formats (including, but not limited to, images, text, illustrations, and audio clips) are protected by Copyright laws of the United States and are owned or controlled by NCTM., unless expressly noted. The materials are provided solely for the personal, noncommercial use of purchasers of publications, members, or visitors to NCTM sites.

For ALL uses, except for translation requests, NCTM has authorized the Copyright Clearance Center to process permissions for the following:

photocopying, reprinting, or republication of any NCTM copyrighted material, including Curriculum Focal Points for Prekindergarten through Grade 8 and Principles and Standards for School Mathematics (2000), for print, CD, or online; and distribution of NCTM journal articles or book chapters in electronic course packs for use in association with online courses on password-protected systems

To request permission for approved uses and pay the associated fees, please access Copyright Clearance Center at this link:

 http://www.copyright.com/ccc/search.do?operation=show&page=simple 

or contact the Copyright Clearance Center, Inc., 222 Rosewood Drive, Danvers, MA 01923, (978) 750-8400.

Copyright Clearance Center is a not-for-profit organization that provides licenses and registration for a variety of users.

For translation permission requests only:

To translate any NCTM copyrighted material, please send your request to permissions@nctm.org.

Note: Reproduction is limited to up to five articles or chapters in total from an NCTM source, or 25 percent of a complete journal or book, whichever is less. A source is defined as a book, or one of our four journals: Journal for Research in Mathematics Education, Mathematics Teacher, Mathematics Teaching in the Middle School, or Teaching Children Mathematics. Other restrictions may apply. Please see Copyright Clearance Center for all conditions.  [Emphasis added.]

NCTM also includes disclaimer information regarding materials being “as is” on their site (see terms of use). Keep in mind that this standard disclaimer refers to completely voluntary usage (or non-usage) of NCTM materials.

NCTM: Truly voluntary standards. Negotiable terms. Nothing coerced; nothing high-stakes. No porked-up profit potential for education corporations.

NCTM has also accepted no Gates funding for CCSS or otherwise.

Not so for NCTE.

NCTE Copyright/Terms of Use

Like NCTM, NCTE offers its own standards. However, unlike NCTM, NCTE has accepted Gates funding for CCSS. Thus, even though the NCTE website still includes the NCTE standards, NCTE now showcases CCSS.

NCTE does not readily offer information on its public license. The site does include the note at the bottom of its webpage, “All rights reserved in all media.” NCTE does offer this position statement entitled, Code of Best Practices in Fair Use for Media Literacy in Education. As does the NCTM site, the NCTE site also includes the standard, “as is” terms of use.

Thus, NCTE does not appear to be too concerned about copyright infringement of its materials. Given that it officially endorses a position on “fair use,” one might logically assume that NCTE allows for such interpretation of “fair use” of its own materials.

As for the CCSS endorsement on the NCTE site, NCTE must abide by the CCSS public license, which I examine in the remainder of this post.

CCSS Public License

The CCSS public license opens with an introduction that notes that the Standards “are protected by copyright and/or applicable law.” The intro also maintains that use of CCSS constitutes agreement to abide by the terms of the license.

Next comes the License Grant:

The NGA Center for Best Practices (NGA Center) and the Council of Chief State School Officers (CCSSO) hereby grant a limited, non-exclusive, royalty-free license to copy, publish, distribute, and display the Common Core State Standards for purposes that support the Common Core State Standards Initiative. These uses may involve the Common Core State Standards as a whole or selected excerpts or portions. [Emphasis added.]

In other words, all of those who “support” CCSS are allowed to copy and use any or all of it without paying money to do so.

The section that follows is the Attribution; Copyright Notice:

NGA Center/CCSSO shall be acknowledged as the sole owners and developers of the Common Core State Standards, and no claims to the contrary shall be made.

Any publication or public display shall include the following notice: “© Copyright 2010. National Governors Association Center for Best Practices and Council of Chief State School Officers. All rights reserved.”

States and territories of the United States as well as the District of Columbia that have adopted the Common Core State Standards in whole are exempt from this provision of the License.

That is, CCSS belongs to the National Governors Association (NGA) and the Council of Chief State School Officers (CCSSO). Keep in mind the definition of “copyright” at the outset of this post: A copyright can belong to one not responsible for creating the copyrighted document.

As per the remainder of the Attribution; Copyright section, states adopting CCSS don’t have to identify NGA and CCSSO as the owners of CCSS– though many sites promoting CCSS do so ad nauseam.

The next section, Material Beyond the Scope of the Public License, underscores that the license belongs only to the Standards, not to the examples used to illustrate the Standards. Many examples belong to the “public domain,” meaning anyone is able to use them without thought of obtaining permission. However, it seems that NGA and CCSSO entered into agreement with both the Penguin Group ( a subsidiary of Pearson) and McGraw Hill to use material copyrighted by Penguin and McGraw Hill to illustrate CCSS.

Since Penguin and McGraw Hill are outside of the CCSS license, information regarding Penguin and McGraw Hill’s copyrights/terms of use is presented in this section.

What the above acknowledgement of Penguin and McGraw Hill inadvertently shows is that these two have a “foot in the door,” so to speak, to the profit potential available via CCSS.

(Note: Pearson is positioned to run all aspects of CCSS, from examples, to curriculum to assessment. As for McGraw Hill: CCSS “architect” David Coleman sold his No Child Left Behind assessment-related company, Grow Network, to McGraw Hill in 2004. He then started his national standards writing company, Student Achievement Partners, in 2007. He is now president of College Board– one of the few groups at the CCSS planning table [see CCSS MOU in the RTTT application linked below].

CCSS is a layered business deal.)

The next several sections are the warranties, disclaimers, limits on liability, and termination. Below is an example of the language in these sections:

THE COMMON CORE STATE STANDARDS ARE PROVIDED AS-IS AND WITH ALL FAULTS, AND NGA CENTER/CCSSO MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, ACCURACY, OR THE PRESENCE OR ABSENCE OF ERRORS, WHETHER OR NOT DISCOVERABLE. [Emphasis added.]

Compare the “we ain’t making no promises” language above to sales pitch from the CCSS website:

The Common Core State Standards provide a consistent, clear understanding of what students are expected to learn, so teachers and parents know what they need to do to help them. The standards are designed to be robust and relevant to the real world, reflecting the knowledge and skills that our young people need for success in college and careers. With American students fully prepared for the future, our communities will be best positioned to compete successfully in the global economy. [Emphasis added.]

So which is it?  Is CCSS “warrantied” or not?

When does the “as is” escape clause kick in?

The disclaimers/limits of liability take on new shades of meaning given the mandatory, 100% acceptance of CCSS in order to receive Race to the Top (RTTT) funds. The CCSS memorandum of understanding (MOU) states must submit to the US Department of Education for RTTT funding binds all public school districts in a state to use CCSS “as is” based upon only two signatures: that of the governor and the state education superintendent. (For an example of a CCSS MOU, see page 128 out of 279 of this RTTT application.)

Thus, the very people who sign for CCSS are the same ones whose respective national organizations (NGA and CCSSO) take credit for CCSS creation while excusing themselves from any and all responsibility for CCSS not working.

NGA and CCSSO: Serving Themselves and Profit-driven Companies

The CCSS license might resemble copyright/terms of use documents of other organizations offering national standards; however, the coercive, high-stakes nature of CCSS makes the details of its license a mirror into both the profit motives and the utter lack of accountability that NGA and CCSSO actually “own” via their exclusive control over CCSS. In addition, companies like Pearson and McGraw Hill stand to make a fortune from CCSS. Moreover, in agreeing to RTTT, governors and state superintendents are in essence agreeing to subject states to a product in which they (the superintendents and governors) hold partial ownership– an arguable conflict of interest.

Finally– sadly– those facing the greatest consequences of this transaction– school districts, schools, teachers, and students– are nothing more than pawns in a game designed to boost the careers and fatten the bank accounts of those completely exempt from responsibility for their CCSS actions.

What a costly charade.