May one stream a Netflix Video for in-class use?
I have been asked more than once by a faculty member, may I stream Netflix videos to my classroom? Most Netflix videos, unless they are older films in the Public Domain, are protected by copyright. However, there are statutory exceptions that allow educators to show all or portions of films in an educational classroom. Title 17, Section 110(1) of the United States Copyright Act, for example, states educators may show a “performance… of a work… in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made.
In other words, this section permits an educator to show a film, or a portion of a film, in a face-to-face classroom or a similar location, unless the copy of the film was unlawfully made. Therefore, if an educator at a university or at a K-12 entity wants to show a film, or a portion of a film, for educational purposes in a face-to-face classroom, he or she is entitled to do so. Section 110(1) also mandates the film shown must be lawfully made. As far as I know, Netflix videos are lawfully made. Thus, at first glance, section 110(1) appears to permit streaming Netflix videos to a classroom.
But, when one signs a license agreement, he or she often gives away certain freedoms, such as copyright exceptions. The Netflix user agreement overtly conveys “the Software is only for your own personal, non-commercial use and not for use in the operation of a business or service bureau, for profit or for the benefit or any other person or entity.” Most copyright attorneys comprehend the phrase “for your own personal… use” as giving away your statutory exceptions to use section 110(1) and even section 107 (fair use). Thus, when one signs a licensing agreement with Netflix, he or she in essence is agreeing to only stream videos in the privacy of his or her own home. Educational entities willingly give away such freedoms often when they sign licensing agreements with various vendors.
What if you invite your class over to your house and stream a movie for educational purposes? After all, the statute does state “in a classroom or similar place devoted to instruction.” May one’s domicile be considered a similar place devoted to instruction. Probably not, and it is probably not convenient to circumvent a licensing mandate by inviting students to one’s private domicile, although that could be up for debate. Yet, this exemplifies how licensing agreements can and do often trump one’s copyright exception freedoms. For example, the only legal dings the defendants received in the Georgia State case were due to licensing agreements they had signed that trumped their “Fair Use” in placing excerpts of book on e-reserve. So, the lesson learned I suppose is to be careful when signing licensing agreements, read them carefully, and I encourage negotiating with publishers so that one can retain as many statutorily and Constitutionally mandated freedoms as possible.
The Netflix type license has not yet been argued before a court, but it probably will at some point. Also, do not confuse the assumed prohibition of the Netflix license with a prohibition on streaming. Many universities are streaming their own digital content to students today, via password protected content. This digital streaming of one’s lawfully purchased and owned (not accessed) content issue has not been completely resolved either. However, UCLA recently litigated this issue and received a favorable outcome from a court, although the issue is far from settled. My next post will dissect the UCLA litigation and why, for now, UCLA is permitted to stream its owned content to its students.
—Submitted by Kris Helge, Scholarly Communications Librarian
Volunteer Books Needed for UNT’s Second Human Library
A Human Library will be held in the Forum @ Willis Library September 17 and 18, from 3:00 pm to 6:00 pm each day. Instead of print or electronic resources, the books in this library will be human beings who have experienced prejudice due to issues such as race, gender, age, disability, ethnic origin, class, sexual preference, gender identity, or lifestyle choices. For more information, see Human Library Book Recruiting Information.
Co-sponsored by UNT Libraries and the UNT Multicultural Center, the first UNT Human Library was held on February 17 and 18, 2013. At the event, in 15 to 30 minute personal conversations with students, members of the UNT community – graduate and undergraduate students, faculty, and staff – shared their experiences as Latinos, gays, Muslims, persons with disabilities, police officers, African Americans, vegans and many other groups who are often misunderstood .
Both volunteer “books” and their “readers” were very positive about the experience. Feedback from one volunteer book indicated that the experience was "Very interesting and calm. I expected some harassment for being Muslim but everyone was very nice and considerate in asking questions. I only felt nervous at the beginning, but was otherwise very comfortable. Very happy to participate and would love to do it again." Another book stated that it was a "Pleasantly surprising, excellent social awareness exercise. I believe I learned as much as my ‘readers.’”
If you are interested in joining the book collection for the fall Human Library, please email Diane Wahl. And share this article with colleagues and students you think may also be interested in volunteering. Volunteer books do not have to be present for both days of the event. The time commitment would be one or two shifts of three and a half hours, plus a one hour training session a week or two before the event.
The Human Library concept was developed in 2000 by members of the Danish Youth Organization Stop the Violence. It is now operational in more than 60 countries.
U.S. Supreme Court Hears Two Cases on Same-Sex Marriage
On Tuesday, March 26, 2013 the Supreme Court heard oral argument in Hollingsworth v. Perry, the challenge to California’s ban on same-sex marriage in that state. The issues involved in this case are (1) whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman; and (2) whether petitioners have standing under Article III, § 2 of the Constitution in this case.
On Wednesday, March 27 Justices will hear oral argument in United States v. Windsor, the challenge to the constitutionality of the federal Defense of Marriage Act. The issues involved in this case include (1) whether Section 3 of the Defense of Marriage Act (DOMA) violates the Fifth Amendment's guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State; (2) whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and (3) whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.
Kirtsaeng Overturned: A Win for Libraries
March 19, 2013
The United States Supreme Court held today that buying books abroad and selling them in the United States is not a violation of copyright law. Instead, it is well within the rights of an individual under the first sale doctrine. The publisher, John Wiley & Sons, argued that Kirtsaeng’s buying of books abroad and selling them in the United States was an infringement of copyright law via Wiley’s supposed exclusive right to distribute their books and §602’s import prohibition. Kirtsaeng countered that because his books were “lawfully made” and acquired legitimately, §109(a)’s “first sale” doctrine permitted the importation and resale of items without Wiley’s further permission. Both the district court and the United States Court of Appeals for the Second Circuit rejected Kirtsaeng’s argument. However, the United States Supreme Court held today that the “first sale” doctrine applies to copies of a copyrighted work lawfully made abroad. Pp. 7–33. Thus, today’s ruling overturns the Second Circuit’s previous holding.
John Wiley basically was arguing that a geographical restriction should be placed on books that were deemed lawfully made, purchased and resold. The Court disagreed with such a geographical restriction.
The Court further reasoned that library associations, used-book dealers, technology companies, consumer-goods retailers, and museums point to various ways in which a geographical interpretation would fail to further basic constitutional copyright objectives, in particular “promoting the Progress of Science and useful Arts,” Art. I, §8, cl. 8. For example, a geographical interpretation of the first-sale doctrine would likely require libraries to obtain permission before circulating the many books in their collections that were printed overseas. Pp. 19-24.
Also, the “first sale” doctrine is also deeply embedded in the practices of booksellers, libraries, museums, and retailers, who have long relied on its protection. And the fact that harm has proved limited so far may simply reflect the reluctance of copyright holders to assert geographically based resale rights. Thus, the practical problems described by petitioner and his amici are too serious, extensive, and likely to come about to be dismissed as insignificant—particularly in light of the ever-growing importance of foreign trade to America. Pp. 19–24. These practical problems consist on the heavy burdens such a geographical restriction would place on libraries, museums, retailers…
Today’s holding is great news for libraries, booksellers, museums, retailers, and other entities that purchase and resell items. This ruling is really good for consumers as well that rely on their legal right to purchase books, CDs, and other items “legally made” and give them as gifts to others. There is no telling how far reaching a contrary ruling could have gone in preventing one’s rights to do what they want with legally obtained property.
Submitted by - Kristyn H
Register Pallante’s Recommendations for Future Copyright Law
March 19, 2013
Last week, the Register of Copyrights Maria Pallante gave remarks at Columbia Law School. During these remarks, she suggests some changes in United States copyright legislation may be necessary to help various entities properly utilize current technology within the confines of the law. Such entities that may benefit from future changes consist of courts, libraries, schools, and for-profit organizations.
During her remarks, Register Pallante posed the following suggestions and provocations:
- Any future legislative changes need to address new and emerging technologies, but also they must be flexible enough to apply to technologies not yet created. After all, in accordance with Moore’s law, some of today’s technology will soon be a moot point.
- The Digital Millennium Copyright Act (DMCA) may need to be revised as the internet and its features have changed since the DMCA’s inception.
- Registration requirements for copyrighted materials should be revisited. Could a new revised registration requirement solve some issues such as the orphan works problem? Or, would such a requirement burden original creators?
- Congress may need to take a look at section 109, also known as the first sale doctrine, depending on how the Court rules in the Kirtsaeng case in May or June.
- Should section 108 contain new copyright usage exceptions specifically tailored for higher educational institutions, such as for libraries? It sounds like a great idea to me!
- Congress may want to review the current copyright duration, which is a life-in-being plus 70 years. Should the later portion of this term be shortened to 50 years with an optional renewal of 20 extra years?
- Could the Copyright Office become an actual agency? Ergo, it could resolve questions of law or fact via advisory opinions.
Hopefully Congress will address some of these concerns. At a bare minimum, Congress needs to investigate how best to grant institutions of higher education (including academic libraries) broader protection to digitize various materials and make these materials available to a wider selection of individuals. One way this could be accomplished as Register Pallante kind of alluded to, is to grant broader statutory exceptions to libraries when digitizing materials to which they currently own or to which they have agreed access.
I am not certain giving the Copyright Office administrative authority to resolve disputes or to interpret legislation is a good idea. If such an agency were given such authority, even though their opinions may only be given in an advisory manner, personally, I would rather see the United States Congress pay more attention to these issues and produce new legislation that provides more flexibility to libraries in serving their patrons with current digital technologies. Congressional statutes providing libraries with avenues to share information carry much more weight than do advisory opinions.
Submitted by - Kristyn H