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

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

That is where I think I come down.

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 1:00 PM, "Peter B. Hirtle" <pbh6@xxxxxxxxxxx> wrote:

> Very helpful, Kevin.  So a faculty member might be able to use her personal
Amazon or Netflix account to show a movie to a class, but a library would not
be able to use an Amazon or Netflix account to meet student and faculty needs
- is that correct?
>
> Peter
>
> -----Original Message-----
> From: Kevin Smith [mailto:kevin.l.smith@xxxxxxxx]
> Sent: Wednesday, February 20, 2013 5:37 PM
> To: Peter B. Hirtle
> Cc: Digital-Copyright
> Subject: Re: [digital-copyright] RE: Amazon streaming video for classroom
use?
>
> 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