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

[Brandon Butler <brandon@xxxxxxx>]

I'm with Peter, I think, though I'd love to be convinced by the other side.
This situation reminds me of the MDY v. Blizzard case (good summary here:
https://www.eff.org/deeplinks/2010/12/mixed-ninth-circuit-ruling-mdy-v-blizza
rd-wow),
which dealt with a similar situation of contract and copyright overlap. In
that case, the 9th Circuit ruled that although users of a video game
violated the EULA by using a third-party bot to play the game on autopilot,
they did not infringe copyright. The court distinguished between a
condition on the grant of a license and a separable covenant not to engage
in particular conduct. So, even though part of the EULA forbade certain
conduct, since that conduct was not independently a copyright infringement,
it could not be magically transformed into infringement merely by its
association with a license to use copyrighted content. That's the good
news. The bad news is that just because something is not copyright
infringement doesn't mean it can't nevertheless be a violation of the
covenant in the contract.

In this case, it may be that because of '110 the performance of streaming
videos in class is not a violation of '106, but the terms of the agreement
with Netflix would still govern and provide an independent covenant
describing which performances are allowed by the contract and which are
not.

Here's something I should know but don't: are there any federal preemption
issues when a claim is brought under state contract law but seems to be
basically about the same subject matter as federal copyright law (and
inconsistent with the federal regime, i.e., 110)? Seems like this came up
in the UCLA case, but I'm too lazy to go back and look at whether and how
it was resolved.

And to iterate this question further down the rabbit-hole: I just heard
from Gary Price at InfoDocket about a public library that is buying Roku
players, and signing up for Netflix and Hulu accounts, and loaning those
boxes to patrons. Here the ultimate performance is probably of the kind
contemplated by the license (a family and its invitees in a private home),
but the licensee (the library) is not the one initiating the performance,
and is in fact engaged in behavior (lending a piece of hardware with the
streaming platform embedded) that probably isn't even addressed or
contemplated in the TOUs. Fun!