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

["Peter B. Hirtle" <pbh6@xxxxxxxxxxx>]

I would really like to believe that Kevin is right.  And I agree that it would
have been nice if the terms spoke to educational settings.  But I have to
wonder if it isn't because it never occurred to Amazon that someone could
conceive of a classroom as being anything other than a public place and a
showing to a class as being anything other than a public performance?

The language does state that "'Non-Commercial, Private Use' means a
presentation of Digital Content for which no fee or consideration of any
kind... is charged or received."  If we want to argue that a classroom showing
is a private use, I think we also have to agree that fees (aka tuition) are
also charged as part of enabling that private use.

And is a classroom really a private use?  I recently reviewed  many of the
utterly-confusing and mistaken statements on public performance rights that
come from major educational film distributors.  About the only thing on which
they agreed is that a classroom showing was a public performance under the
Copyright Act (i.e., to display "where a substantial number of persons outside
of a normal circle of a family and its social acquaintances is gathered.")
Has any court suggested that a classroom is not "public" under that
definition?

As I say, I want Kevin to convince me that the license terms allow us to treat
a rented, streamed movie in the same ways as if we had purchased it.  I don't
see much ambiguity in this license, though.

And this is Amazon's license.  Has anyone looked at Netflix to see if it is
more educational-friendly?

Peter



-----Original Message-----
From: Kevin Smith [mailto:kevin.l.smith@xxxxxxxx]
Sent: Tuesday, February 19, 2013 4:53 PM
To: Varvel, Virgil Eugene Jr; Peter B. Hirtle; Funke, Rebecca S.;
digital-copyright@xxxxxxxxxxxxxx
Subject: RE: Amazon streaming video for classroom use?

I think we need to be careful not to over-interpret the language here.

First, the provision that allows showing of films in face-to-face classrooms
does not say that one must use a "legally obtained copy," it says that one
must not know or reason to believe that the copy used for the performance was
not "lawfully made under this title."  Surely we have every reason to believe
that the Netflix streams are based on lawfully made copies.

So if nothing in 110(1) prevents a showing of a Netfix stream, we must look
carefully at the licensing language Peter cites.  I actually think it is
carefully written to not take a position on classroom showings.  Such a
showing can certainly be called a non-commercial use, and it is arguably
private -- especially since 110(1) takes face-to-face classroom viewing out of
the category of an impermissible public performance.  The further
clarifications in the Netflix language seems to confirm this impression.  They
make some exceptions to the restriction to a private home and add the
requirement that the viewing be attended only by "you and your invitees."
Again, is not this language commodious enough to include a class of students,
especially given the favored treatment of such a group in 110(1)?  Finally,
the Netflix terms explicitly rule out some showings -- a showing in a dorm
lounge or place of public accommodation -- and that would seem like an obvious
place to mention a classroom if they wanted to, but they do not.

Bottom line, I think the ambiguity of the Netflix terms ought to leave in
place the rights we have under the copyright law, including for face-to-face
performances.  We should not over-interpret ambiguous terms in a license, and
I think these are ambiguous, in ways that cause us to unnecessarily surrender
rights we have under the public law of copyright.

Kevin L. Smith, M.L.S., J.D.
Director, Copyright and Scholarly Communication Duke University, Perkins
Library P.O. Box 90193 Durham, NC  27708
919-668-4451
Kevin.l.smith@xxxxxxxx

-----Original Message-----
From: Varvel, Virgil Eugene Jr [mailto:vvarvel@xxxxxxxxxxxx]
Sent: Tuesday, February 19, 2013 11:08 AM
To: Peter B. Hirtle; Funke, Rebecca S.; digital-copyright@xxxxxxxxxxxxxx
Subject: [digital-copyright] RE: Amazon streaming video for classroom use?

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