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

[Katie Fortney <Katie.Fortney@xxxxxxxx>]

For the sake of fun, this is how I'd argue that classroom use isn't
necessarily a public performance:

110 says "Notwithstanding the provisions of section 106, the following are not
infringements of copyright" not "notwithstanding that these would otherwise be
public performances," or even "notwithstanding section 106(4)."

108 has similar language. It says "Except as otherwise provided in this title
and notwithstanding the provisions of section 106, it is not an infringement
of copyright for a library or archives..." 108 then lists some things like
108(b) that most people wouldn't consider a copyright violation even without
section 108 - they'd be okay under fair use. 108 just calls out some very
specific safe harbors so that people don't have to do their own fair use
analysis.

Couldn't 110(1) be viewed as a parallel, calling out a specific safe harbor so
that people don't have to worry about whether a classroom performance was
public or not?

Then you'd just have to deal with the definition of publicly. Classrooms are
not "open to the public" generally, especially these days. And depending on
the class (a 12 person seminar vs a 200-person lecture), they're not
necessarily a gathering of a "substantial number" of persons.

Of course practically speaking, I agree that for any Amazon/Netflix content,
the terms of service are going to be the real issue.

Katie Fortney, J.D., M.L.I.S.
Copyright Management Officer
California Digital Library
415 20th Street, 4th Floor
Oakland, CA 94612
510.987.9371


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Date: Wed, 20 Feb 2013 16:38:35 +0000

To: Digital-Copyright
<digital-copyright@xxxxxxxxxxxxxx<mailto:digital-copyright@xxxxxxxxxxxxxx>>

From: "Peter B. Hirtle" <pbh6@xxxxxxxxxxx<mailto:pbh6@xxxxxxxxxxx>>

Subject: RE: [digital-copyright] RE: Amazon streaming video for

  classroom use?

Message-ID:
<5B68CC314ECD144AAA8D27B47A3E72FF01648FAE@xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
ok.com<mailto:5B68CC314ECD144AAA8D27B47A3E72FF01648FAE@xxxxxxxxxxxxxxxxxxxxxx
04.prod.outlook.com>>



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