On Tuesday, Dec. 7, the educational trade group AIME and one of its members, Ambrose Video, finally filed the long- anticipated lawsuit against UCLA alleging that UCLA’s practice of streaming digitized video through its course management system to students registered for a specific class, was copyright infringement.

When several publishers filed suit against Georgia State University on April 15, 2008, I took note of the date because it seemed the publishers were trying to enforce a new tax on higher education.  Now the assault on academic fair use is continuing, but my initial temptation to draw a chronological analogy with the attack on Pearl Harbor – “a day that will live in infamy” – was easy to resist.  Not only would such an analogy be disrespectful of the terrible tragedy that took place in 1941, it would also give too much importance to the very strange document that was filed Tuesday in the Central District of California.

The complaint is unusual in several ways.  Those who try to read it off the AIME website will find, for example, that the PDF is riddled with problems in the scanning (one hopes) that make it very difficult to decipher.  Also, it is curious that the only named distributor of educational videos is Ambrose.  The complaint makes the claim that many others are also being injured, but it does not name them.  Instead it inserts a strange defense of the claim that AIME itself has standing without the presence of more than one of its members.  This is very different than with the Georgia State Case, where the Association of American Publishers led the search for a defendant but then dropped out and let the actual rights holders proceed.  Rumor had it last year that Ambrose, whose CEO is also a leader of AIME, was very keen to sue but was having difficulty convincing his colleagues in the group that that was a good idea.  The structure of this lawsuit seems to add credence to that rumor.

Another legal oddity is the decision to sue UCLA for damages as well as injunctive relief, even though the complaint acknowledges that UCLA is “an arm of the State of California.”  It would seem that sovereign immunity will be an issue, and AIME has not taken the steps that the GSU plaintiffs did to avoid the  potential for dismissal on these grounds.

Much of the argument, of course, centers around fair use.  Here too it was surprising to see how the complaint proceeds.  It actually does not address the four fair use factors, but makes three arguments about why UCLA cannot claim that defense.  First, it says that the videos are all licensed in a way that precludes fair use.  Second, it asserts that it offers a licensed streaming service, which presumably goes to the market harm factor in a fair use analysis.  Third, it asserts that UCLA is not using “reasonable and limited portions” of the videos.  Again, the point here is to argue one of the fair use factors – amount and substantiality – but the language actually comes from the requirements of section 110(2) of the copyright act, not from fair use (section 107).

This last point is interesting because the complaint tries to refute any argument that 110(1) and/or 110(2) might apply to UCLA’s practice.  It does not acknowledge the possibility, which I hope UCLA will argue, that even when those provisions do not fully apply, attention to the policy behind them and the restrictions place upon them strengthens the case for fair use.  For example, if the impact of course-specific streaming is no different than employing 110(1) – the face to face teaching exception — it argues that there is a Congressional policy that refutes a claim for economic harm. When the complaint itself confuses the language between these exceptions, it points directly toward that possibility.

Licensing, however, is the heart of this complaint, in two ways.

First, Ambrose argues that its licensed streamed service makes a claim to fair use inappropriate.  The entire Ambrose catalog is, oddly, attached as an exhibit to the complaint, but only a “sample” of the streamed offerings appears.  An examination of the Ambrose website shows that not all of its offerings are available for streaming, but it is hard to tell what the percentages are.  So the question arises, how much of the content must be available for licensed streaming before a fair use argument is ruled out?  That question would, I think, persist even if a court accepted the claim, by no means obvious, that a licensing market does count to reduce the field for fair use.  That latter claim is quite circular and courts have split over its validity.

Second, Ambrose makes the more basic claim that “many” of its products are licensed in a way that entirely precludes fair use, even when  UCLA (and the rest of us) have bought a physical DVD.  The complaint says that, if the purchase orders for these DVDs are “scrutinized,” licensing terms will be found.  That claim made me think about what the Uniform Commercial Code (article 2) calls “the battle of the forms,” where parties to a sale of goods disagree as to what terms apply.  Even if the terms found on the purchase orders (or some of them) are held to be valid in some ways (and I think they might be under the UCC) the question still remains as to whether these one-sided terms are adequate to take the use of the DVDs completely out of the realm of federal copyright law.  Academic libraries should watch this issue closely, since it seems likely that similar attempts to use purchase order terms of use to abrogate the right of first sale, upon which libraries depend so heavily, will grow.

One finally oddity, from the perspective of academic librarians, should be noted.  The Washington lawyer hired by AIME and Ambrose to pursue this case, Arnold Lutzker, is also scheduled to teach an online class on “Copyright, Photos, Video, Art & Multimedia” for the Center for Intellectual Property at the University of Maryland University College in 2011.  This coincidence is a reminder that librarians need to look carefully at the educational opportunities they select and consider whether their common tendency to be excessively nervous about fair use might be reinforced when it should, at least in my opinion, be countered by more in-depth knowledge.  We know how to recognize a bias when the Copyright Clearance Center offers to teach us about copyright; we need to be aware that other opportunities may also come with an agenda.

This is obviously a case we will need to watch as it progresses.  These comments are based only on the complaint.  UCLA will file an answer that will help clarify the issues and, one hopes, AIME and Ambrose will clarify many of the points that are left unclear by this strange initial document.

 

4 Responses to The other shoe drops

  1. Christine Ross says:

    Glad I am not the only one who found the complaint oddly drafted – I thought maybe it was just my bleary eyes and foggy post-grading brain playing tricks on me late Friday evening while I was reading it. In defense of the CIP’s educational offerings, I am currently enrolled in their certification program, and there is a very good selection of instructors/lecturers – ones you may agree with strongly and ones you may differ with. I have found that in copyright there are biases all over the map – and I approach everyone’s opinions, legal and otherwise, with equal consideration and wariness. Another interesting tidbit — the president of AIME and Ambrose VP attended a symposium this summer where I was the keynote speaker — and his presence caused quite a ripple of nervousness amongst the 100 or so librarians that were present, particularly when he was observed videotaping my presentation using a small hand-held camera.

  2. Peggy Hoon says:

    Indeed, Christine is correct. Before impugning the reputation of the CIP, Kevin, do your homework. The list of their Intellectual Property Scholars includes Lolly Gasaway, Kenny Crews, Cliff Lynch, Georgia Harper, and Peter Jaski.

  3. Kevin Smith says:

    I neither impugned the reputation of the CIP nor questioned the wide variety of instructors they employ. I did, however, suggest that it would be difficult to expect an impartial presentation from this one instructor on this particular topic.

  4. Peggy Hoon says:

    Glad to hear it, although you can see how one could easily come to that observation, since both commentators did. You are a good friend, Kevin, and you have developed a wide readership, to your credit. Because of that, people listen to you and this makes it all the more imperative that there be clarity in your comments (which there is for the most part). I am biased, not only in favor of CIP, but also in favor of you, so if I could read it that way, I think others could as well. I hope you hear my observations in the spirit of collegiality, because that is how I intend them. (in case I’m not being clear!)