Yesterday a judge in Los Angeles dismissed the copyright infringement lawsuit brought by AIME, the Association for Information Media and Equipment, against UCLA. The lawsuit had alleged that UCLA was infringing copyright by ripping DVDs to create a digital stream, which was then made available through a closed course management system to students in a particular class. There are several technical issues that dominate the decision, but there is a little bit of good news, hardly definitive, for the fair use claim that was being made by UCLA.
The two major reasons for the decision were sovereign immunity — the doctrine that state entities can seldom be sued in federal court — and lack of standing. AIME tried to argue that UCLA had waived its sovereign immunity when it signed a contract with AIME, but the judge rejected that argument as too broad. So a major part of the decision applies only to state entities; it does not translate to private universities.
As for standing, AIME had a little bit of the “Righthaven” problem; they simply did not own the copyrights that were allegedly infringed, so they were not the proper plaintiffs to bring the case. AIME wanted to claim what is called “associational” standing as a group that represents individual copyright holders, but the judge rejected that idea; she held that “individual copyright owners’ participation is necessary” in order to assert copyright infringement. It has never been entirely clear why the lawsuit was brought the way it was, and it is a relief, from the point of view of legal consistency, that this attempt to assert associational standing has failed. With Righthaven and a few other groups trying to create a business model based on copyright trolling, the failure of this claim for standing represents another welcome barrier to that activity.
Not, I hasten to add, that AIME is in any sense a copyright troll. The lawsuit was, in my opinion, inept, but it was clearly motivated by zeal and a sense of righteous indignation rather than baser motives. Calmer judgment simply got overwhelmed.
On the copyright issue, which is where I was most anxious to see the reasoning, everything pretty much turned on language in the AIME license that granted public performance rights to the licensees. Given that language, the case would seem to have been doomed from the start. But as a result, UCLA did not have to make the case that the streaming, as a potentially public performance, was justified by one of the specific educational exceptions in section 110 of the Copyright Act. That argument may yet be plausible, but it was not decided in this case.
What solace the higher education market can take from this case is in a few lines in which the judge seems to accept without discussion two assertions — that streaming is not a “distribution” such as to infringe the exclusive right to authorize distribution, and that copying incidental to a licensed right (the right of public performance) was fair use. These points were not, as I say, discussed or unpacked, just accepted as part of a general dismissal of the copyright infringement claim for “failure to state a claim upon which relief can be granted.” Thus this ruling does not offer the higher ed community a slam-dunk fair use victory, it merely sharpens a couple of the arrows in the quiver of that argument.
It is interesting to note that the copyright claims, along with most of the others, were dismissed “without prejudice.” This means that AIME could refile them, and the judge gave AIME two weeks to do so if it wants. The problem, however, is that all claims against the Regents and against the individual defendants in their official capacity were dismissed with prejudice. So AIME could file the same claims again, but not against these defendants and not until it solved the standing issue. A claim against the individuals as individuals would still be possible, but it is doubtful it would have the effect AIME wants; instead, it would look like the act of a desperate bully who does not know when to retire from the field.
Whatever happens next in this case, if anything does, what the dismissal without prejudice should tell the rest of us is that the issue of most significance to higher education — whether or not streamed video for a course-related audience is fair use — has not been brought to a final judgment.
Policy on Electronic Course Content
For help deciding whether course content in Blackboard or some other digital form is fair use or requires copyright permission, consult this policy document adopted by the Academic Council in February 2008.
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- In Georgia State University E-Reserves Case, Eleventh Circuit Endorses Flexible Approach to Fair Use | ARL Policy Notes on GSU appeal ruling — the more I read, the better it seems
- Paul Callister on Swimming in muddy waters
- Jim Neal on Free speech, fair use, and affirmative defenses