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

[John Mitchell <john@xxxxxxxxxxxxxxxxxx>]

Consistent with my post of a few hours ago, I can agree with the first
sentence of your second paragraph, but not the rest.

The Section 109 right is completely silent with respect to public
performances. And, as I stated before, if one is authorized to perform the
work publicly, that authorization is discrete, and is not dependent upon
whether the work was on a rented copy of a remote streaming server.

Although the Ninth Circuit seems to be tone deaf on the distinction, the fact
that the access has "licensing" terms associated with it is not determinative.
That is, I can rent a copy from the video store, and have no right to perform
it publicly by virtue of the rental, but just as plainly, I can obtain a
separate license to perform the work publicly (and then perform it from the
rented video), or the video store may have obtained the authority to license
me to perform it publicly (unlikely in practice, but easily done as a matter
of law).

I see several problems that would be raised if a video streaming service
stated, "You have no 110 rights."
	If the streaming service is the copyright holder, I would consider that to be
void as a matter of public policy, actionable as a matter of antitrust law,
and place at risk the copyright, as a matter of copyright misuse. That is
because, since the copyright itself is granted "subject to" Section 110, it
would not be permissible for the copyright holder to circumvent the limitation
on the copyright grant by licensing solely to those who agree to nullify the
limitation.
	If the streaming service is acting independently, and not as an agent for the
copyright holder, then the three faults would not apply. But I suspect that it
would make no more business sense for the streaming service to say "You agree
not to exercise your 110 rights" (or, more precisely, you agree not to perform
the work in the manner authorized by Section 110) than it would be for the
bookstore to say, "By purchasing this book, you agree never to exercise your
right to sell it, lend it, or give it away." Breaching either agreement could
not be a copyright violation, and the merchant placing those limitations upon
the customer risks losing customers.

I hope that if you read my earlier post, you will see that this does not boil
down to just those two issues.

John


On Feb 19, 2013, at 4:33 PM, Peter B. Hirtle wrote:

> "A Netflix or Amazon or ITunes rental is no different from a "motion
picture"
> rental paid for at a local video store."
>
> I disagree.  The video store rental (or using a copy we have purchased) is
> based on 109 rights.  The streamed movie has license terms associated with
it.
> It would be quite possible to have a license that says "You have no 110
> rights," and you would have to obey it.
>
> To the extent that the license is silent on what you can do under 110, then
> Kevin is right: it would be a lawfully made copy.  But if the license
forbids
> 110-type performances, then you can't do it, no matter what the law may
say.
> (And this is one of the great innovations in the proposed copyright changes
in
> the UK: namely, users cannot sign away their rights under copyright when
they
> sign a license.)
>
> The discussion seems to boil down to two issues:
> 1. Is classroom use a private, non-commercial performance authorized under
the
> licenses?
> 2. If not, should we ignore the license terms because Amazon/Netflix is
> unlikely to sue us for violating their terms of use and the movie studios,
who
> are the most likely to take umbrage, have bigger fish to fry?  (And BTW, I
> don't think Netflix or Amazon could grant us permission to use this stuff
in
> their licenses even if they wanted to.  I assume that their licenses with
the
> studios stipulate that they can only license content for private, in-home
> viewing.  That is why people like Swank are selling separately-negotiated
> streaming services to universities.)
>
> Peter Hirtle