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

["Peter B. Hirtle" <pbh6@xxxxxxxxxxx>]

This is a thread that will not die.  We have zombie (aka "orphan") works; now
we have zombie streaming videos...  :-)

So what have I learned from this discussion?

1. The streaming services seem to authorize "private, non-commercial use."
2. Some argued that showing a film to a class was a private use.  If it is a
private use, it would not be in violation of the license.
3.  You could also argue that a private use was a non-public performance. If a
private use was not a public performance, then you don't have to even think
about 110, since the copyright owner does not have the right of public
performance.
4. If it is the library or institution that is arranging for the streaming, it
may become harder to argue that the use is private.  It is more likely that
this is a violation of the terms of use.
5. If you view showing a movie to a classroom as a public performance, then
you may have a copyright problem.  The streaming service is not authorized to
allow public performances.  At that point, you have to turn to 110 for a
defense.
6. But if you are using a 110 defense, then it is likely that you are in
violation of the terms of use.  I can't see how one can call a public
performance (for copyright purposes) a "private use" (in the terms of the
license).

In sum, there appear to be 4 ways to balance the private/public use (license)
and the public/non-public performance (copyright):

1. If you conclude that showing a movie from a streaming service to a
classroom is a private, non-public performance, then you are likely in the
clear.
2.If you conclude that showing the movie to the classroom is a private use but
a public performance, then you are OK in terms of the license but have to look
to 110 for copyright protection. (This position seems to be the least
defensible.)
3.  If you conclude that showing the movie in the classroom is a non-private
use but still a non-public performance, then you are only in violation of the
terms of use.
4.  If you conclude that showing a movie from a streaming service to a
classroom is a public performance, it is likely to be a public use and hence
not allowed by the license (even if 110 would keep it from being a copyright
infringement).

And the bottom line in all of this is a matter of risk assessment.  You may
conclude that ignoring the terms of use in the streaming service agreements is
acceptable since it is unlikely that the service will ever complain and the
copyright owner can't complain if what you have done is merely violated the
terms of use.  See
http://www.thedigitalshift.com/2013/02/media/one-way-to-get-streaming-content
-from-the-library-ephrata-pl-looks-to-expand-roku-lending-program/ for  a
story about a library that is loaning out Rokus, seemingly in complete
disregard for the agreements it signs with the service.

Peter Hirtle

-----Original Message-----
From: Mariann Burright [mailto:mariann@xxxxxxx]
Sent: Tuesday, February 26, 2013 5:25 PM
To: Brandon Butler; digital-copyright@xxxxxxxxxxxxxx
Subject: RE: [digital-copyright] RE: Amazon streaming video for classroom
use?

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!