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

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

I appreciate John Mitchell's thoughtful answers.  They are helping me to
refine my thinking on this matter.

I would still maintain that the issue is primarily a matter of
Amazon/Netflix's terms of service.  If we accept contractual terms that are
narrower than what copyright (or any other) law would allow, we must still
abide by those terms.  (Indeed, I have heard publishers say that by offering
libraries products that have more restrictions than are found in the Copyright
Act, they are able to offer those products at a lower price.)

Kevin Smith stated that a classroom showing could be "arguably private," but I
am still having trouble seeing how that can be the case.  110(1) says that in
spite of 106's ban on public performances, it is ok to show a film in a
classroom.  A classroom showing is a public performance, but 110(1) exempts
that public performance from the normal rules giving copyright owners the
power to control those performances.  (After all, if showing a film in a
classroom was not a public performance, there would be no need for 110(1)
since nothing in 106 prohibits private performances.)  The Amazon agreement is
limited to "Private Uses."  Can a classroom showing of a movie be both a
"public performance" (under Copyright law) and a "private use" (as per
Amazon's terms)?

While not nearly as relevant, it is interesting to speculate on whether
showing an Amazon or Netflix film in a classroom could also be a copyright
infringement.  Normally I would say "no" thanks to 110(1).  110(1) speaks of
the performance of a "work" (irrespective of any physical or digital format).
It requires that the performance be my means of a legally-made copy, but the
only "copy" would be the copy on the Amazon streaming server and we have to
assume it was legally made.  If the streaming created a copy on the receiving
institution's end, then there might be a problem - but has anyone said that
streaming creates copies (in copyright terms)?

But then as I read more, I started worrying more.  The House Report on 110(1)
defines face-to-face teaching in a very peculiar way: "'Face-to-face teaching
activities' under clause (1) embrace instructional performances and displays
that are not 'transmitted.' ... Use of the phrase "in the course of
face-to-face teaching activities" is intended to exclude broadcasting or other
transmissions from an outside location into classrooms, whether
radio or television and whether open or closed circuit."  Aren't Amazon and
Netflix movies being "transmitted" from an outside location into a classroom?
Does this make them ineligible for 110(1) protections?

Peter

-----Original Message-----
From: John Mitchell [mailto:john@xxxxxxxxxxxxxxxxxx]
Sent: Wednesday, February 20, 2013 12:44 AM
To: Digital-Copyright
Subject: Re: [digital-copyright] RE: Amazon streaming video for classroom
use?

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