Re: [digital-copyright] Amazon streaming video for classroom use?

[John Mitchell <john@xxxxxxxxxxxxxxxxxx>]

Allow me to suggest a different approach by breaking this down a bit and
avoiding the EULA/TOU red herring.

First, you cannot be buying a "license to view" because there is really no
such thing -- at least not as far as the copyright is concerned. Simply put,
since the PRIVATE performance of a work is not among the exclusive rights
granted to the author of any work, all private performances of all works are
always permitted as non-exclusive rights belonging to everyone, and protected
by the First Amendment. Moreover, this right attaches to "the work" and not
"the copy of the work." You may privately perform a stolen infringing copy
without infringing any copyright.

Second, the only copyright implicated by the question is the exclusive right
to perform the work (emphasis on "the work") publicly. That is, the
fundamental copyright question is whether showing the movie in a classroom
infringes the public performance right, without regard to whether "the work"
is being performed via streaming or from a purchased copy, rented copy,
pirated copy, stolen copy, or what have you. To illustrate, if the author of
an easily memorized poem gives me the right to perform the poem publicly, it
does not matter at all whether I recite it from memory or read it from a legal
copy, infringing copy, or stolen copy. Similarly, if I have a fair use right
to perform the work publicly by virtue of Section 107, it does not matter
whether I perform it from memory or from a streaming service or an infringing
copy. (Conversely, if I do not have any right to perform the poem publicly, I
don't help my case at all by saying, "but I purchased a legitimate authorized
copy at full price.")

Third, there is no "exclusive right to use" a work. There are only six limited
rights. Presumably, the faculty member who wants to "use streaming video"
intends to perform the work publicly, but even so, the facts provided in the
question do not address the scope and nature of the use. Does the faculty
member intend to perform selected portions of the work exclusively for
criticism and comment? If the exclusive right to perform the work publicly is
expressly limited by Section 107, then the fair use analysis comes into play
before we even reach the issue of whether the "streaming video versus from a
copy" distinction comes into play.

Fourth, assuming it is not fair use, the performance in a classroom is not
infringement if it meets the requirements of Section 110, which is the ONLY
place the "legal copy" comes in, as far as I recall. ("Notwithstanding the
provisions of section 106, the following are not infringements of copyright:
(1) performance or display of a work by instructors or pupils in the course of
face-to-face teaching activities of a nonprofit educational institution, in a
classroom or similar place devoted to instruction, unless, in the case of a
motion picture or other audiovisual work, the performance, or the display of
individual images, is given by means of a copy that was not lawfully made
under this title, and that the person responsible for the performance knew or
had reason to believe was not lawfully made.") If we jump directly to this
section, we tend to create the misconception that all other public
performances are infringing. (Even then, there is an interesting question I
have not looked into, as to whether it is enough that the streaming video be
by means of a legal copy, which would certainly be the case if streamed from,
say, Netflix servers -- legal copies of the works. It is not clear to me on
its face that Section 110 addresses whether the copy is a shiny disk in a DVD
player or a shiny server in a remote building.)

Finally, the TOU from the streaming movie service are, when it comes to
copyright, probably going to be very careful not to authorize any use that
might be construed as direct infringement. After all, each of the six
exclusive rights in Section 106 are the right to "do or to authorize." It
would be the same with a video store rental -- the video store is NEVER going
to say, in its membership agreement, "you are authorized to perform this
motion picture in a classroom so long as it meets the provisions of Section
107 or Section 110 of the U.S. Copyright Act." In fact, some of the
legislative history gives an example of infringement if a video rental store
rents the video to someone knowing that the renter intends to make an
infringing public performance of the work using the rented copy. But if the
Copyright Act says the use is authorized, then the TOU can't trump that.
(That's not to say that there can't be a TOU restriction that the streaming
service is authorized to impose by private agreement. I just mean that the TOU
agreement cannot create copyright liability where none would exist in the
absence of the TOU agreement.)

In short, start with the specific use intended and see whether it fits within
107 or 110. If it does not, then one could look to see whether the streaming
service nevertheless authorized the contemplated use, presumably under
authority of the copyright owner (though I doubt that the typical streaming
service will have any more lenient TOU -- perhaps one geared toward educators
would).

John


On Feb 19, 2013, at 11:08 AM, Varvel, Virgil Eugene Jr wrote:

> You are not buying a 'legally obtained copy' but rather a license to view
the
> content according to that license with Netflix, Blockbuster, and streaming
> movie providers. I would agree that you cannot show a streamed film from
these
> providers.  If you have a purchased a digital copy of a movie though (not
> rented or obtained through a streaming provider but purchased) that you
have
> in the Amazon cloud or UVVU, then I'm not so sure. UVVU limits to 6 users,
but
> does not specify how many people can view the content, and it is an owned
> copy, so exemptions should apply, particularly with a downloaded copy that
is
> played through a player.
>
> -----Original Message-----
> From: Peter B. Hirtle [mailto:pbh6@xxxxxxxxxxx]
> Sent: Tuesday, February 19, 2013 9:44 AM
> To: Funke, Rebecca S.; digital-copyright@xxxxxxxxxxxxxx
> Subject: [digital-copyright] RE: Amazon streaming video for classroom use?
>
> Look at the terms of use for the streaming video services and tell me how
> classroom use could possibly be authorized since the license is for private
> use.  Here is the text from Amazon's
> (http://www.amazon.com/gp/help/customer/display.html?nodeId=200026970):
>
> Amazon grants you a non-exclusive, non-transferable, non-sublicensable,
> limited right and license, during the applicable Viewing Period, to access,
> view, use and display the Digital Content in accordance with the Usage
Rules,
> for Non-Commercial, Private Use. As used herein, "Non-Commercial, Private
> Use"
> means a presentation of Digital Content for which no fee or consideration
of
> any kind (other than that which you pay to us to view the Digital Content)
is
> charged or received, which takes place in your private home or apartment
or,
> if outside your private home or apartment (e.g., in a hotel room, dorm
room,
> office, or airport waiting lounge) is limited to a private viewing for you
and
> your invitees. Non-Commercial, Private Use specifically excludes any public
> presentation (e.g., a presentation in a dorm lounge) and any presentation by
a
> place of public accommodation or other commercial establishment (e.g., a
bar
> or restaurant), even if no fee is charged for viewing the Digital Content.
>
> As our students who wished to share music learned the hard way, just
because
> something is easy to do technically does not make it automatically legal.
>
> Peter Hirtle
>
> -----Original Message-----
> From: Funke, Rebecca S. [mailto:rsfunke@xxxxxxxxx]
> Sent: Monday, February 18, 2013 10:19 PM
> To: digital-copyright@xxxxxxxxxxxxxx
> Subject: [digital-copyright] Amazon streaming video for classroom use?
>
> Hi all,
> Have any of you have requests from faculty to use streaming video from
Amazon
> (or Netflix) in the classroom (online or face 2 face)?  I'm curious to know
> how you responded.
>
>
> Rebecca Funke
> Director of Library Resources
> Des Moines Area Community College
> 2006 S. Ankeny Blvd
> Ankeny, IA 50023
> Ph:  515.964.6328
> Email: rsfunke@xxxxxxxxx<mailto:rsfunke@xxxxxxxxx>
> "What a school thinks about its library is a measure of what it thinks
about
> education."
> ~ Harold Howe, former U.S. Commissioner of Education