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Monthly Archives: December 2010


“Beyond Fair Use” – A Proposal for the Digital Age?

As part of my daily diet of copyright cuisine, I sample the tables of contents of various recent law review issues to see if anyone has something interesting to say about fair use. The other day I came upon an article in the November 2010 issue of Cornell Law Review entitled “Beyond Fair Use.”  The authors, University of Pennsylvania law professor Gideon Parchomovsky and U.S. Deputy Assistant Attorney General Philip Weiser, aptly explain how the Digital Millennium Copyright Act (DMCA) has depreciated the balancing effect of fair use in our copyright system by chilling the creativity of users of copyrighted content. When enacting the DMCA, the “Congress made a conscious decision not to recognize fair use as a defense in circumvention cases” and thereby “significantly limited the scope of fair use for copyrighted works in digital media.” (p. 93-94)

In response, several scholars have proposed solutions that purportedly  enable creators to access legally those works protected by Digital Rights Management or other types of technological protection measures. But, the authors point out, these solutions suffer from certain fatal flaws. For example, two scholars have separately, but similarly, proposed the creation of an administrative agency within the Copyright Office or as an independent office that would be granted the authority to promulgate regulations and issue rulings on what types of uses constitute fair use. The costs of time and money that would be faced by an agency handling the volume of inquiries render this proposal unlikely of success. Other proposals noted by the authors include the call to grant users “the right to hack” and the development of a reverse notice system whereby content users would alert copyright owners of their intent to use copyrighted content and the failure of the owners to respond within an allotted time would constitute a grant of permission. The authors contend that these proposals are also flawed on account of the average citizen’s tech savvy precluding their ability to hack or circumvent protection mechanisms and access the protected content.

Although the authors recognize that these prior proposals have some merit, the inherent flaws in each mandate, in their minds, the offering of yet another proposal, which in my mind is also fatally flawed for some of the same reasons they cited when critiquing the earlier offered solutions.  Drawing upon real-life examples whereby content owners voluntarily permitted users to create copies of digital works (e.g. Apple’s FairPlay), the authors propose a “two-stage regulatory regime” that largely is reliant upon the competitive nature of business (p. 126-136) The creation of competition would come, suggest the authors, from the requirement by the Federal Trade Commission (FTC) that digital content providers (1) include in their products a conspicuous statement of access and use standards for consumers and (2) devise innovative technological ways of implementing that use and access. The authors hypothesize that this notice system will create competition amongst providers and encourage experimentation in access methods. As a result, users will be afforded privileges they do not presently enjoy. While the authors expect this system to be successful through this initial step, they nevertheless offer a “second” step to be used in the event the desired result is not achieved. The authors assume that competition and experimentation will have occurred and a wealth of data about what worked and what didn’t will become available. Should an extra nudge be needed, then, Congress should take this data and use it to draft a scheme of user accommodation, which the FTC would then be charged with enforcing.

While I agree with the authors about the powerful effect of competition, I also feel that their proposal suffers from the flaws of cost and of user savvy. Although the FTC is accustomed to regulating and enforcing a system such as that proposed (the authors analogize it to the FTC’s involvement in the privacy notice regime), the addition of this new and potentially larger task will be taxing on the present resources. Further, users may be stymied by constantly changing access modes to digital content, which may be the end result of the “experimentation” envisioned by the authors. Finally, I am left wondering if these notices of user privileges are necessary in light of the availability of Creative Commons licensing, an already established and simple to use system for notifying users of how digital content may be used. While the Creative Commons system lacks the technological component for controlling access, it may be more worthwhile to explore ways which this already developed notice system can be utilized rather than draft additional lengthy click-through notices that most users don’t take time to read.


Taking AIME at UCLA

The Association for Information and Media Equipment (AIME) made good on its threat earlier this year by filing a copyright infringement lawsuit this week against the University of California system and the chancellor of the UC Los Angeles campus (UCLA). The challenge levied both in January 2010 and in the Dec. 7th filing contends that UCLA infringed upon the copyrights of Ambrose Video, one of the institutional members of AIME, by copying (in violation of the DMCA), digitizing and streaming full length Ambrose Video DVD content via a password protected on-demand technology delivery system. Specifically, the complaint alleges that UCLA digitized a DVD series of BBC Shakespearean productions and streamed them more than 130 times to students and faculty.

Ambrose Video, like many film distribution companies including Films for the Humanities, New Day Films, and California Newsreel, provide by license, which is assented to upon purchase of their DVD products, that digitization and streaming of DVD content is prohibited and that a separate license must be purchased. Ambrose and these other film distribution companies offer, as part of their services, streaming video on-demand from their own servers or by license from an institution’s servers. AIME contends in its complaint that the actions of UCLA are not only a violation of license (hence, a breach of contract) but also, by digitizing and streaming its members’ DVDs, colleges and universities are unfairly preempting this emerging market and great harm will be sustained by the educational video business.

UCLA’s stance is that its actions fall within three exemptions of the Copyright Act, 17 U.S.C. § 101 et seq. First, UCLA claims that the streaming of full length DVD content constitutes a public display under § 110(1). Second, the University claims that the TEACH Act exemption at § 110(2) applies. Finally, UCLA resorts, as a fallback position, to the fair use exemption at § 107. In its complaint, AIME addresses each of these assertions of exemption. AIME contends that the streaming of content is not a public display because the attendant requirement of “face to face” teaching is not present. Rather, students and faculty can access the streamed content on-demand, at any time and at any place, and not necessarily simultaneously. The TEACH Act exemption does not apply, according to AIME, because the Ambrose Video DVDs are separately marketed as available for “mediated instructional activities” through its on-demand streaming service. The TEACH Act expressly excludes from its exemptions those works explicitly produced and sold for distance learning. The TEACH Act also, albeit ambiguously, limits its exemption to “limited and reasonable” portions of fictional or dramatic works. In this case, entire DVDs were streamed.  Finally, the result of a balancing of the four factors of fair use likely would not extend protection to the actions of UCLA, argues AIME, because of the aforementioned harm to the market and the streaming of entire DVDs.

The AIME suit against UCLA, unlike the copyright litigation instituted by journal publishers against Georgia State for its e-reserves practices, seeks monetary damages in addition to injunctive and other relief. My sincere hope is that the budget crisis faced by the UC system will not lead it to enter into a quick settlement of the dispute and thereby deny us the opportunity to have these pervading questions answered by a court of law. I also hope that the new Copyright Czarina, members of Congress, and the Library of Congress will note the important issues raised by this case and take steps to update the Copyright Act through amendment or design of further exemptions to address the opportunities technology offers educators and students so that pedagogical goals in the online classroom can be met same as in the physical classroom.


Most persons who are aware of the Higher Education Opportunity Act (HEOA), enacted in August 2008, consider the legislation as applicable primarily to the federal student assistance programs. Few persons realize that copyright compliance regulations targeted toward reducing illegal file sharing (aka Peer-to-Peer or P2P) were promulgated during the negotiated rule-making periods after the enactment of the HEOA. Effective July 1, 2010, institutions participating in those federal student assistance programs must comply with these  regulations in order to continue offering federal financial aid to their students.

The new regulations (see 34 C.F.R. § 668.14(b)(30) and 34 C.F.R. § 668.43(a)(10)) impose three primary responsibilities upon colleges and universities.

  1. Annual Disclosure. Institutions must issue an annual disclosure to students describing copyright law and the school’s policies and sanctions for dealing with violations of the law and policies. The disclosure should detail the nature of the penalties imposed for copyright infringement. To assist with disclosures about federal law, the Department of Education produced a standardized disclosure and inserted this document in the handbook for federal student aid. However, colleges and universities still must issue an institutional statement about their policies and penalties for unauthorized or illegal distribution of copyrighted materials using the campus IT system.
  2. Infringement Combat Plan. The HEOA regulations require institutions to write and implement a plan to effectively combat on-campus network copyright abuse by using one or more specified technology deterrents: (a) bandwidth shaping, (b) traffic monitoring, (c) prompt attention and response to DMCA notices of infringement, and (d) use of any of a variety of commercial products designed to reduce or block illegal file sharing. This policy must be reviewed with some defined regularity, but campuses are afforded discretion with regard to determining what criteria should be applied and what methods to implement.
  3. Offer Alternatives. Colleges and universities must provide students with alternatives to illegal downloading. This requirement can be accomplished by simply posting a list of legal alternatives. The organization EDUCAUSE has compiled a list of these legal alternatives, which institutions may direct students to. Libraries can also play a helpful role by providing information about licensed streaming video content. Additionally, the Motion Picture Association of America (MPAA) notified college and university presidents in a letter issued to them today that it has launched a new website entitled “Respect Copyrights” and therein it has compiled a comprehensive list of legal video streaming sites.

While the above-referenced letter from the MPAA to college and university presidents is intended to be a kindly extended  hand of cooperation in preventing the “theft of creative materials,” the underlying message is also a warning. The MPAA does not hesitate to inform its addressees of the consequences of not complying with the HEOA and notes, courteously, that it will send notices whenever illegal activity involving its members’ copyrighted content is detected.

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