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We are always on the lookout for stories about how threats of copyright lawsuits snuff out interesting uses of the Internet. Along those lines, a recent story in UCLA’s Daily Bruin titled “UCLA Professors Banned from Posting Videos Online” caught our eye. After all, there are at least two sections of copyright law (Fair Use and Section 110(2)) that could be used to protect professors who post videos for educational purposes. However, in the face of a “litigation threat” from the Association for Information Media and Equipment (AIME), UCLA decided to prohibit professors from posting videos to their course web sites. This means that students who were once able to view course videos online, wherever and whenever was convenient for them, now have to squeeze in time between classes go to the Media Lab on weekdays between 10 am and 6 pm.
The details provided by the Daily Bruin article are a bit sketchy, which is not surprising when threats of litigation are involved. As far as I can tell, until this semester UCLA used a system called Video Furnace to allow students to access videos as part of their coursework. For example, French cinema students could watch a film for class from their dorm room instead of having to come in on a holiday to watch it in a lecture hall. Video Furnace also allowed students to watch films that were unavailable in modern formats, such as DVD.
It is unclear what kind of threat, exactly, UCLA received from AIME. There are at least three options, presented here in increasing order of sliminess. To be clear, I have no idea which of these scenarios (if any) actually occurred in this case, so the following is just an educated guess. The first option is that the letter was part of some sort of pre-litigation strategy. If AIME (or, more likely, some of AIME’s members) feel that they have a legitimate case, they may decide that it is easier, faster, and cheaper just to settle with UCLA instead of having to deal with the long, drawn out litigation process. Sending a letter instead of a lawsuit is a totally reasonable way to try and resolve a problem without the courts.
The second option is that this is part of some sort of misguided or poorly worded offer to provide legal advice. On its website, AIME represents itself to be a resource for “institutional” (school districts and library systems) members’ copyright questions. The problem with this is that, in addition to its institutional members, AIME also has “corporate” members. These corporate members are film and video producers and distributors. According to the AIME website, the corporate members appear to receive significantly more benefits than the institutional members.
This membership structure could present a significant conflict of interests. If school districts and libraries, institutions which should be able to take significant advantage of fair use, are asking people who make and distribute content for copyright advice, the advice might be a bit skewed towards “better buy another one just in case.”
The third option is that this letter is just a shakedown. Unfortunately, there are plenty of examples of companies who send out threatening copyright letters without any real grounds in hope of scaring the recipients into “settling.” Of course, one of the things that makes this type of thing possible is the irrational state of statutory damages in copyright.
Why Did UCLA Think That They Were Acting Lawfully?
I don’t work at UCLA and I don’t know any of the lawyers who do, but they were probably looking to at least two sections of copyright law to justify investing in the Video Furnace system in the first place.
The first, and most obvious, is fair use. Sometimes, it can be hard to determine if a law applies to a specific set of facts just by reading the law. In this case, the fair use section of copyright law states fairly straightforwardly “reproduction . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” Of course, there are the well known four factors to consider, and not every copy made for educational purposes falls into fair use. However, it is likely that a vast number, a majority even, of the videos being posted on UCLA’s Video Furnace for students to access as part of their coursework qualify for fair use.
The second is Section 110. Section 110 contains a number of specific exceptions to copyright law. There are exceptions for things like religious performances (110(3)), non-profit performances (110(4)), and even performances at agricultural or horticultural fairs (110(6)). Most importantly for UCLA’s Video Furnace, Section 110 has an exception for transmitting copyrighted work “in an amount comparable to that which is typically displayed in the course of a live classroom session” – Section 110(2).
Again, without knowing more about AIME, UCLA, what videos were actually being uploaded by professors, and how those videos were being used by students, we cannot know if what UCLA was doing with AIME member content fits into either fair use or Section 110(2). That being said, fair use and 110(2) are designed to allow just the types of things that it would make sense for UCLA to want to do.
The Bigger Issue
Thus far, this post is full of lawyerly hedges and conspicuously short on conclusions. That is because, with the information available today, it is impossible to know exactly what is going on between UCLA and AIME. However, that does not mean that there is nothing to take away from this situation.
Being able to watch videos on your own time is a great boon to students. There is no practical reason that a student has to be in a certain place at a certain time to watch a video for class. In a world of DVRs, being forced to take two hours in the middle of the day to hike down to the media lab seems like a waste of everyone’s time. However, because UCLA is skittish about copyright liability, a single threat of suit is enough to shut down the entire Video Furnace system. Even if AIME’s claim is completely valid, that does not mean that every video on UCLA’s system is infringing. In fact, considering the discussion above, it is highly likely that most of the videos are not infringing. After all, the original article mentioned film students watching films for their film class.
Even to most strident defender of fair use or Section 110(2) cannot really blame UCLA for being skittish around copyright threats. After all, with statutory damages of up to $150,000 for each instance of infringement, it would not take too many adverse judgments to drive the already financially troubled institution out of business. There are a number of ways to try and address this problem. The first is to reform statutory damages so that they are a less effective threat against legitimate users. The second is to institute some sort of punishment, both for the companies and the lawyers making the threats, for making clearly baseless copyright claims. There are already rules against bringing baseless lawsuits, but the increasing use of non-lawsuit “settlement letters” has the potential to destroy a lot of innovative uses of the Internet. Regardless of the solution, it is clear that the current situation has gotten out of hand.