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

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

I regret that I was read as arguing that 110(1) makes a classroom showing
private.  I did not meant that and be,I eve it would be incorrect.  A
classroom showing is, as Peter says, a public performance which is explicitly
excluded from the exclusive right over such performances.  But what I did want
to suggest is that for the instructor, who has signed an agreement with Amazon
or whoever, using her account to show a film in a classroom might be a
"private use" on her part, precisely because she is making a classroom use
that is explicitly rendered under her control and for which no public
performance rights are needed.

Kevin L. Smith, J.D.
Director of Scholarly Communication
Duke University
Perkins Library
P.O. Box 90193
Durham, NC 27708
919-668-4451

Sent from my iPad

On Feb 20, 2013, at 11:43 AM, "Peter B. Hirtle" <pbh6@xxxxxxxxxxx> wrote:

> 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
> 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