I had not even had a chance to open my daily e-mail from Inside Higher Ed yesterday before four colleagues had sent me a link to this story about an educational video trade association forcing UCLA to halt its practice of streaming digitized video on course Web sites. Several suggested that I would surely want to blog about the story, and they were, of course, correct.
The story contains some chilling rhetoric from the representative of the Association for Information and Media Equipment – intentional, I am sure – about their plans to investigate and threaten other colleges and universities that are doing the same thing. Many schools, of course, have explored these options because the pressure from faculty and students to provide greater digital access to our film collections is intense. Some have concluded that the legal risk is too great and are resisting that pressure, at least for now. Others have tried various justifications, clearly hoping to “fly under the radar.” This story will certainly strike fear into many, and will give more ammunition to faculty members who complain that copyright law prevents them from teaching effectively in the media-saturated world of 21st Century America.
In response to the story, I want to suggest here what the major alternatives for legal streaming of digital video might be and the problems inherent in each alternative. I know from conversations with colleagues that each of these strategies is being tried somewhere.
The first, and most obvious, possibility is to rely on the TEACH Act, which amended one of the Section 110 exceptions to the public performance right in copyright in order to allow “transmissions” of certain performances for distance education. TEACH (or Section 110(2)) has a lot of specific requirements that must be met (see this TEACH ACT toolkit from NC State University), although many of those requirements would appear to be satisfied when digital video is streamed through a closed-access course management system. The real problem with relying on TEACH is the portion limits it imposes; it permits transmission of entire “non-dramatic musical and literary works” and “reasonable and limited portions” of other audio-visual works. This second provision seems to apply to films and to disallow the transmission of entire films. Some institutions would argue, I think, that an entire film is often the only “reasonable” portion to use for a particular teaching purpose, but that argument ignores the word “limited.” The point about a reasonable portion is well-taken, in my opinion, but only proves that TEACH was never an adequate solution to this problem.
Other institutions could assert fair use as the justification for streaming digital video. These schools would point out, I imagine, that courts have often held that the use of an entire work can be a fair use, based on the overall balancing of the fair use factors and the totality of circumstances. The trade group clearly disagrees, although the comments about fair use in the article are not really on target. It is correct that password-protection alone is not enough to guarantee fair use, but it does strengthen the university’s position in the complete analysis of the factors. Simply to say that a password does not make something fair use is as incomplete as asserting that an educational purpose always means a use is fair; both assertions miss the need for a complete examination and balancing of the factors.
The problem I see for a fair use justification is that courts would be likely, in my opinion, to look at the portion limits in the TEACH Act and say that that legislation was Congress’ opportunity to provide guidance on educational transmissions, and it selected a limited standard. A court that took that approach would be unlikely to let a school “shoehorn” the entire film in under fair use, simply in order to avoid the inconvenient limits imposed by TEACH. But I have to add that there is no agreement on this point — even the intern in my office this year, who is also a lawyer, disagrees with me — and some universities clearly have decided to rely on fair use to stream entire videos.
Perhaps the most interesting argument, however, is the one that UCLA seems to be making, according to the article, based on the performance exception that proceeds TEACH in Section 110 and permits performances in face-to-face teaching situations. Section 110(1) is clearly meant to have some “give” in it, since it refers to “teaching situations” rather than classes and to “classroom[s] or similar place[s] devoted to instruction [emphasis mine].” UCLA seems to want to stretch these terms to include the course Web site as part of the face-to-face instruction. I know of other institutions, less bold than UCLA, perhaps, but still unwilling to accept unworkable limitations, that read 110(1) to permit streaming to designated sites like language labs, but not to course sites that can be accessed from anywhere. These efforts to clarify the fuzzy boundaries of 110(1) are fascinating and seem to invite a court to step in and clarify; it is just that no one wants to be the defendant in that case if they can help it. While I admit to lingering doubts, this last approach seems to me to be the most surprising, yet most promising, of the three.
There is still another obstacle, however, posed by the anti-circumvention rules added to copyright law by the Digital Millennium Copyright Act. This provision prevents the circumvention of technological protection measures even, in some cases, when the purpose of the use would be permitted. So ripping a DVD protected with CSS (Content Scramble System) may violate these rules even if it is otherwise legal. The DMCA specifically stated that these rules should not inhibit fair use, but courts have been inconsistent about that provision in circumvention cases.
Also, the Library of Congress is charged with declaring categories of exceptions to anti-circumvention in a rulemaking process every three years. New rules, which are desperately needed, were due in October 2009 but the Library punted, extending the old rules while giving itself unlimited time to try and craft new ones. The situation is getting worse on university campuses and we have to ask when the Library of Congress is going to clarify the situation.
In the end, I agree with Tracy Mitrano from Cornell, quoted in the article, that this is one more place where copyright law is not up to the technological challenges posed in higher education today. The need for revision “before [the law] does any more damage” is clear. We can only hope that the educational media industry will eventually come to understand this (they are supposed to be educational, after all) and move away from threats and towards real dialogue.