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

[Victoria Stahl <vstahl@xxxxxxxxxxxx>]

Hi all,

I wholeheartedly agree with Kevin on this one. I think we are getting away
from the basics.

As we know, under section 110 (1), public performance of a DVD or video (a
"work") in a face-to-face teaching setting is a lawful activity. The work must
be legally obtained. Schools have invoked this right for decades. A Netflix or
Amazon or ITunes rental is no different from a "motion picture" rental paid
for at a local video store (if such stores still existed). Assumably, the
policy writers at Netflix and Amazon know classroom use is not only legal, but
should be encouraged.

USC ' 110 - Limitations on exclusive rights: Exemption of certain performances
and displays
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;

All the best,

Victoria Stahl
Editorial Consultant
"The right of fair use is valuable to scholarship, and it should not be
allowed to decay because scholars fail to employ it boldly" (Chicago Manual of
Style 16th, 4.86).







On Feb 19, 2013, at 1:03 PM, "Peter B. Hirtle" <pbh6@xxxxxxxxxxx> wrote:

> 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