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

[Mariann Burright <mariann@xxxxxxx>]

Greetings, 

I hope it's not too late to join this thread. Most of the
discussion so far has centered around 110(1). Suppose an instructor wanted to
provide a video clip under the same Amazon TOU in a password-protected online
course site, limited to the duration the course was in session. 
Assuming the
institution is compliant with the TEACH ACT, how strong would the 110(2) safe
harbor work in this situation? Appreciate any thoughts. 



-----

Mariann
Burright
Head, Science Collections & Scholarly Communication
University of
Georgia Libraries
Athens, Georgia 30602
706-542-6643
mariann@xxxxxxx
________________________________________
From: Brandon Butler
[brandon@xxxxxxx]
Sent: Friday, February 22, 2013 12:08 PM
To:
digital-copyright@xxxxxxxxxxxxxx
Subject: [digital-copyright] RE: Amazon
streaming video for classroom use?

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!