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

[Kevin Smith <kevin.l.smith@xxxxxxxx>]

Thanks Jeannie.  I realized too late that I wrote Netflix when the terms
were actually from Amazon.  But I think the same analysis applies pretty
well to the terms you quote, which really are Netflix.  I would still
maintain that it is not clear that a classroom showing made at the
direction of the professor who is the Netflix member, is not "personal."
It is certainly non-commercial, and it is not an impermissible public
performance under the terms of the law.  So I still think that it is
ambiguous, and in an ambiguous situation, I agree with what the other part
of the Netflix terms say -- we should obey the law as it stands, including
the classroom performance right (that is, the other side of the "public
performance limitations") provided by section 110(1).

Kevin

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






On 2/19/13 12:40 PM, "Colson, Jeannie" <jcolson@xxxxxxx> wrote:

>Kevin, the language below is from Amazon's terms. Netflix's terms include
>the following language. There's more, of course, but I believe these are
>the relevant passages. Source: https://signup.netflix.com/TermsOfUse
>
>In "Limitations on Use:" Unless otherwise specified, the Netflix service,
>and any content viewed through our service, are for your personal and
>non-commercial use only and we grant you a limited, non exclusive, non
>transferable, license to access the Netflix service for that purpose.
>
>In "Your Conduct in Accessing Netflix service":
>By accessing the Netflix service, including the Netflix website and user
>interfaces, you agree to use the Netflix service, including all features
>and functionalities associated therewith, the website and user interfaces
>and all content and software associated therewith in accordance with all
>applicable laws, rules and regulations, including public performance
>limitations or other restrictions on use of the service or content
>therein.
>
>~Jeannie
>
>
>-----Original Message-----
>From: Kevin Smith [mailto:kevin.l.smith@xxxxxxxx]
>Sent: Tuesday, February 19, 2013 10:53 AM
>To: Varvel, Virgil Eugene Jr; Peter B. Hirtle; Funke, Rebecca S.;
>digital-copyright@xxxxxxxxxxxxxx
>Subject: [digital-copyright] 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