March 2010 Archives

Arnie Lutzker has taught many times for the Center for Intellectual Property. In the past, he presented at various CIP seminars and conferences. And he contributed a chapter to the CIP Handbook. Arnie is a great copyright teacher and the CIP staff welcomes his wisdom and insight.

Recently, Arnie wrote an article on the dispute between the Association for Information Media and Equipment (AIME) and UCLA. To be fair, Arnie is representing AIME and so this article should be read with an understanding that he is advocating on their behalf. Nevertheless, I think his analysis and observations should substantively contribute to the ongoing discussion of this very important subject of streaming video to classes.

Kimberly M. Bonner, J.D.
Executive Director, CIP

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The much publicized educational video streaming dispute between AIME (Association for Information Media and Equipment, www.aime.org) and UCLA poses a number of complicated copyright questions. The following article, which I prepared recently as counsel for AIME, puts the dispute in context and addresses Fair Use, as well as the TEACH Act and face-to-face teaching exemptions in Section 110 of the Copyright Act. The thrust of the article is to underscore that the copyright law does not countenance a one-size fits all solution to video streaming. For educators who want to rely upon the legal exceptions rather than author permissions, they must be prepared to do serious homework on a work-by-work basis, and realize that use of many videos created by educational publishers, like AIME members, are not available for unlicensed streaming. Streaming without careful consideration of the nature of the work in question risks the real prospect that the use is outside the scope of the limitations and thus a copyright violation. I hope this piece will lead not only to a balanced and enlightened discussion of video streaming practices, but also to implementation of responsible digital practices.

Arnold Lutzker, J.D.
Lutzker & Lutzker, Washington, DC

Read Educational_Video_Streaming_A_Short_Primer_March2010 (PDF)

If you are reading blogs, it is safe to assume that you know what YouTube is. If you are reading this blog, it is probably also safe to assume that you are aware that there are significant copyright issues related to materials uploaded and available on the YouTube site. If you are working at a college or university, you are also undoubtedly aware that YouTube videos are frequently used by faculty in both F2F teaching and in online courses. The YouTube videos used range the gamut from amateur home videos to clips from commercial films to remixes of various media. The underlying copyright question is always the same: Can these videos be used in courses by faculty without infringing copyright?

Of course, education doesn't have the corner on copyright, infringement, and YouTube. Viacom is currently suing YouTube over claims that Viacom content is available on YouTube illegally and that YouTube knew it and didn't do anything about it. YouTube is asserting online service provider immunity under the DMCA but Viacom disputes their eligibility for that defense.

Last week thousands of previously sealed documents from this three-year old case were released, including lots and lots of email. Google email is involved as well because they own YouTube. Nobody looks good now, particularly Viacom.

According to the news articles, http://www.wired.com/threatlevel/2010/03/viacom-youtube/ Viacom has apparently been covertly uploading a significant number of videos of its own content to YouTube in a marketing effort. Apparently, Viacom employed at least 18 marketing firms to engage in this effort, had one of its own divisions "rough up" the videos to make them look pirated, and even sent employees to places like Kinko's to upload via their computers. Viacom did such a great job that it (and its lawyers) doesn't even know what videos it put up - Viacom's own monitoring agent, BayTSP, identified many videos that had been posted with Viacom's permission. Therefore, asserts YouTube, http://youtube-global.blogspot.com/the only way to know if something was unauthorized was from Viacom take-down notices. Even worse, some of the videos Viacom uploaded are the subject of the suit!

Also of interest is YouTubes' Content ID system, available by subscription to copyright holders. This system scans over 100 years' worth of video everyday and lets rightsholders choose whether to block, leave up or monetize the videos. According to YouTube, "over 1000 media companies are now using Content ID - including every major US network broadcaster, movie studio and record label. The majority choose to make money from user uploaded clips rather than block them."

OKaaay. Time Out. Media companies are posting their own material, openly or not openly, and tacitly endorsing uploads of their content by other users because its free advertising? And I was worried about use of commercial YouTube clips by our professors for transformative educational purposes in accessed-controlled online course environments?

Not only do I think our fair use position is solid, I now wonder how in the world one is supposed to know whether something is up on YouTube with the tacit permission of the commercial rightsholder? In fact, how does one know that the rightsholder didn't put it up there itself? (I know I'm missing something technical, but I'm not sure it matters...) How does this affect what we tell faculty?

Although each use of a YouTube video should be evaluated individually, recent events somehow dramatically lessen my concerns (in those instances where I had concerns) about use of commercial-looking videos downloaded from YouTube for nonprofit educational teaching purposes, especially where such uses are highly transformative. By that I mean, the faculty are almost always using the clips to illustrate something entirely different than what the creators intended when creating them.

How are other institutions handling copyright and YouTube videos?

peggy

Believe it or not, I am actually trying to write a blog piece about something other than this topic of UCLA and the legality of streaming entire videos online. But this isn't it.

In a statement released today, UCLA announced that it will restart its former practice of streaming (entire) movies/videos within an accessed controlled online classroom. You can see this announcement here. The news release article contains links to a principals document that outlines the rationale, if you will, UCLA is advancing.

I find the document confusing from a legal standpoint. To me, fair use is tangled in with 110(1), the face-to-face performance exception which is further tangled up with 110(2), the TEACH Act and topped off with the concept of time-shifting (from the Sony case) and the argument that virtual classrooms should be no different than physical classrooms regardless of how the law reads. Favorable pieces of one section of the law are taken out of context and combined with pieces from somewhere else. The idea that the same performance can be in both 110(1) and 110(2) simultaneously is very confusing.

For example, if streaming entire movies online within a virtual class qualifies as face-to-face teaching (110(1) because classrooms today should have no walls and the online class should be no different than the physical class in terms of what can be shown, (which, btw, I agree that there should be no difference in what you can show between these two types of classes; I don't necessarily agree that's how the law reads), then what is the point of 110(2), the TEACH Act? Whether you apply 110(1) or 110(2) hinges on whether you are "transmitting" the performance or display. That is the fork in the road.

If (ignoring the definition of transmission in the act which is quite clear) streaming the movie is not transmitting it, then you can stay in 110(1), the F2F section and show the whole thing. Furthermore, if streaming is not a transmission, then nothing that goes over the internet within an online class is either. So when would 110(2) apply? Never, right? Why even have it? Always use 110(1) where there are no restrictions on the type and amount of a work that can be performed or displayed, yes?

But if streaming is transmitting, then 110(2) is triggered, with all its conditions, including the restriction on performances to portions that are pedagogically necessary. As has been stated in other forums, there may be circumstances where showing the entire work meets that standard; but as an all-encompassing, general rule? I don't think so because it negates the whole "portion" language. Section 110(2), TEACH, is not going to support a policy that says - ahead of time - the entirety of every film is pedagogically necessary. If so, the performance language would read the same as the display language in 110(2), and it doesn't.

Before going too much farther, I should state, in very strong terms, that I agree completely that there should be no difference in the type and amount of materials available to the F2F student and the online student. Section 110(2) has never made sense, with its different treatment of students, even before passage of TEACH in 2002. Before then, it was more restrictive and treated cable students (even closed cable) different than F2F, where movies were concerned. So, before I am condemned as a party-poop, know that I am on-board with the UCLA sense of rightness and the way things should be; I'm not so sure that the law is. And it would be great if it were amended to reflect this but Congress has to do that.

To me, the strongest potential support for this streaming practice would be to rely on Section 107, fair use. Concluding that the fair use analysis will always support use of an entire movie, no matter what it is or how it is used, pre-emptively will be a challenge. I don't know if it will succeed in this area, but the practice has been employed for years in many fair use based e-reserves like ours.

In sum, the UCLA statement is a mixture of a strong appeal to values and a sense of the way things should be with a less robust legal foundation. This debate may well develop into litigation the way matters are escalating.

Peggy