Smoke got in my eyes

It has been widely reported that UCLA has decided to re-start its program of streaming digitized videos for course-related viewing.  They do so based on a set of principles adopted by the faculty, which can be read here.

Readers of this blog will recall that I have previously expressed ambivalence about whether and how this practice can be justified under our current copyright law.  I expressed that ambivalence in this posting, and many comments flowed in, most from experts for whose opinions I have great respect.  Several were more sanguine than I about the legality of streamed digital video, while some were certain that no justification could be found.

I still had not made up my mind when I read about UCLA’s decision to resume their activities.  But yesterday’s article in Inside Higher Ed., which includes statements from the lawyer for the trade group that originally threatened UCLA , has really helped me clarify the issues.  It seems to me that there are two glaring and obvious misstatements in AIME’s denunciations of UCLA, and that these misstatements actually point out why the practice is justifiable.

First, AIME’s lawyer insists that UCLA will stream videos to “an unlimited number of students.”  But a cursory reading of the principles adopted at UCLA shows that the program will limit access to each video only to students enrolled in a class for which that film is required content.  Surely that is a limit on the number of students who will see the film using UCLA’s streamed service; only those students who can authenticate into the course management site for the particular course will be able to view each film.  In other words, the audience is limited in exactly the same way that it would be if the film were shown in a classroom to the assembled students.

Second, the remarks from AIME stress the fact that UCLA will buy only a single copy of each film, as if that is different from prior practice.  But of course, most universities buy only one copy of most DVDs, which are then shown in class to a group of students or put on reserve so that students can come in and watch the film in a library or media lab one at a time.  During the time UCLA had suspended its program, this was the practice it followed.  What it did not do was buy large numbers of each film and hand them out to individual students, which the AIME statement seems to suggest is the only alternative.

This, of course, is absurd, and it is disingenuous.  In its negotiations with UCLA, I am very sure that AIME did not propose that there was some number of multiple DVDs which, if purchased, would render the practice of streaming that film for student viewing fair.  If there is such a number, I suggest that AIME should tell us what it is; I am sure many schools would prefer to buy that number of copies in order to provide the streaming services our faculty and students want while still not exposing themselves to liability.  But multiple sales are not the issue here.

What AIME is seeking, naturally, is repeated licensing fees.  They are happy to have schools buy only one copy and stream it if, for each film, a license fee greatly in excess of the cost of the DVD itself is paid, and paid each semester.  The film companies do not want to settle for slightly increased sales of DVDs in this matter, they want to turn our campus intranets into pay-per-use jukeboxes that will provide a new and virtually unlimited income stream.

In the past, universities bought single copies of films and showed them to groups gathered together in a classroom or to students on a one-to-one basis.  The film companies may have grumbled about the doctrine of first sale and the face-to-face teaching exception that permitted this, but there was little they could do.  Now those film companies hope to create new revenue by forcing us to pay to show the same single copy to the same students over a closed network.  In short, they want large fees for space-shifting.

The fact that AIME’s attorney uses this phrasing, with its two statements that misdirect the reader from the real issue, suggests that he realizes how strong the fair use argument, based on space and time shifting to accomplish a purpose that is specifically authorized by the copyright act, really is.  Rhetoric about single copies and unlimited students is a smokescreen, and when the smoke is cleared away it is easier than it has ever been for me to see the powerful fair use argument in clear focus.

2 thoughts on “Smoke got in my eyes”

  1. It is not clear to me how a reasoned conclusion follows from inferences drawn from quotes.

    What is clear to me is that UCLA needs to rely on fair use because both the TEACH Act (110(2)) and the Classroom Exception (110(1)) are expressly limited by their terms to not include the use contemplated by UCLA within its Video Furnace system.

    In the case of the TEACH Act, not only is UCLA prohibited from making an entire audiovisual work available for streaming, it cannot utilize works under TEACH that are primarily marketed for distance learning purposes by the rights holder. Moreover, digitization and storage on a streamer is not permitted where a digital copy is available– as is the case here.

    In respect of the Classroom Exception, the statute is clear on its face that its coverage does not extend to distance learning. While the notions of the “expanding classroom” are all well and good, the fact remains that if Section 110(1) was flexible enough to apply to instances of remote learning, there would have been no need to incorporate the TEACH Act.

    This, therefore, begs the question of how anyone can conclude fair use is occurring without the weighing of facts as dictated by Section 107. While you can begrudge the rights holders who wish to earn a reasonable license fee for the streaming use of their content, the fact that UCLA is continuing with a practice that denies these entities their license revenue does factor into the analysis (and likely in favor of the rights holders). Additionally, by all appearances, UCLA is not making an effort to limit the amount of the works being used (i.e. it is digitizing, storing and making accessible entire films, rather than just selected portions) nor can it be reasonably maintained that the works are being used for any other purpose than that for which they were intended (i.e. there is no transformative use). Although there is no certainty as to how the Fair Use issue might eventually be decided, it is at least deserving of a reasoned analysis.

    I would also point out that little attention has been given to the point that UCLA is likely ripping the subject video content from CSS-encoded DVDS, an act specifically prohibited by the DMCA and not defensible under Fair Use or any other portion of the Copyright Act.

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