UCLA Copyright Lawsuit Over Streaming of Videos Dismissed–Again

A federal judge in California has for the second time thrown out a lawsuit that accused UCLA of violating copyright law by streaming videos online for student use.

Judge Consuelo B. Marshall of the U.S. District Court in Los Angeles had previously dismissed the lawsuit in October 2011, but she allowed the plaintiffs, Ambrose Video Publishing Inc. and the Association for Information Media and Equipment, a trade group, to file a second amended complaint. In a ruling issued last Tuesday, she rejected the second amended complaint.

The plaintiffs contended that UCLA had acted illegally in copying DVD’s of Shakespeare plays acquired from Ambrose and streaming them online for faculty and students to use in courses. UCLA argued that streaming the videos was permissible under the fair-use principle, which can allow reproductions for teaching, and the Teach Act, which allows limited use of copyrighted materials for online education.

In her ruling, Judge Marshall said the plaintiffs had failed to provide adequate support for their infringement claim. The ruling hinges largely on findings that the plaintiffs lacked standing and that the defendants had sovereign or qualified immunity. But in a section of the ruling, Judge Marshall also considered four factors relating to the fair-use arguments.

One of those factors weighed in favor of not finding fair use, she wrote, “because the entire works were streamed, not just portions.” But, on balance, she wrote, “the court concludes that there is, at a minimum, ambiguity as to whether defendants’ streaming constitutes fair use.” She added: “Notably, no court has considered whether streaming videos only to students enrolled in a class constitutes fair use, which reinforces the ambiguity of the law in this area.”

A lawyer for the defendants, who include the UC Regents, said the ruling was “a complete victory.” The lawyer, R. James Slaughter of Keker & Van Nest LLP, told the news service Law360 that the ruling “confirms what UCLA has long believed: that streaming previously purchased video content over its intranet for educational purposes is not a copyright violation or a violation of any contract.”

Lawyers for the plaintiffs were not immediately available for comment.

–Adapted from an article by Charles Huckabee in the November 26, 2012 issue of The Chronicle of Higher Education.

 

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ALA Group Issues Report on Fair Use for Videos in Libraries

The Fair Use and Video Project has posted online its document titled “Community Practices in the Fair Use of Video in Libraries.”  This project began as an attempt by the Video Roundtable (VRT), a group within the American Library Association (ALA), to establish a recommended body of practice in the fair use of video for educational purposes. A team of six librarians, with advice and guidance from ALA’s Office of Information Technology Policy, coordinated the process of gathering input from the media librarian community and created the final document. Over the course of the project, our aims shifted from suggesting best practices, which was leading us into a thicket of conflicting copyright interpretations, to documenting community practices, which allowed us to explore how librarians routinely and responsibly fulfill their mission to preserve and provide access to our cultural record.  The team conducted in-person interviews at national conferences and hosted a series of focus groups at locations across the country: Boston, Seattle, Evanston, Washington, D.C. and Richmond.  About eighty library staff members with varying responsibilities for buying, processing, and/or supporting the educational use of video were included in our surveys.

The report concludes that librarians are deeply respectful of fair use as a means to ensure the kind of access to valuable content that is appropriate to the classroom, library, and learning space of today’s university. Such is the pace of change in higher education that new technological breakthroughs, court cases, and revisions to the law will likely change the landscape, over and over again, for use of library content of every conceivable format. However, fair use is clearly the cornerstone of a philosophy of service based on the principle of unfettered access to the materials of research and scholarship. This philosophy will endure as long as libraries maintain a strong commitment to the real intention of the copyright law, to “promote the progress of science and the useful arts.” Without fair use, libraries would most assuredly have to sharply curtail their efforts to deliver the essential materials of scholarship in the form and manner appropriate for real academic inquiry.

The document has a place for comments in the box at the top right of the page.

 

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Streaming Video Case Against UCLA Dismissed

A judge dismissed a lawsuit on Monday that had accused the University of California, Los Angeles of copyright infringement for streaming videos online. The lawsuit against UCLA was filed by the Association for Information Media and Equipment (AIME) and Ambrose Video Publishing Inc. in the U.S. District Court for the Central District of California. Those plaintiffs claimed that UCLA had violated copyright and breached its contract by copying DVD’s of Shakespeare plays acquired from Ambrose and streaming them online for faculty and students to use in courses.

U.S. District Court Judge Consuelo B. Marshall found multiple problems with these arguments. Among the most important: He didn’t buy the plaintiffs’ claim that UCLA had waived its constitutional “sovereign immunity,” a principle that shields states—and state universities—from being sued without their consent in federal court. The judge also held that the association, which doesn’t own the copyrights at issue in the dispute, failed to establish its standing to bring the case.

The decision means “universities will have a little more breathing room for using media,” says James Grimmelmann, an associate professor at New York Law School. But the more important implication is that the case will be a precedent that universities can cite in future copyright disputes, Mr. Grimmelmann says. The UCLA decision will make the Authors Guild case against HathiTrust more of a long shot, he speculates. That battle, which concerns a collection of digital books that Google scanned from university libraries, also involves an association suing on behalf of copyright owners, and the target of the lawsuit is a digital repository hosted by a state institution, the University of Michigan at Ann Arbor. In addition to Michigan, defendants in the HathiTrust case include Cornell University, Indiana University, the University of California, and the University of Wisconsin. “That suit has almost exactly the same sovereign-immunity and standing problems as this one,” Mr. Grimmelmann says. “If the HathiTrust suit were to be decided tomorrow by the same court, it would be dismissed.”

The Association of Research Libraries (ARL) hailed the UCLA victory as an especially welcome bit of good news, given all the copyright struggles dogging universities. But ARL pointed out in a blog post that the decision ”stops short of vindicating the strongest fair-use arguments in favor of streaming.” Kevin Smith, Duke University’s scholarly-communications officer, also noted in his own post that, because much of the dismissal hung on the sovereign-immunity question, “a major part of the decision applies only to state entities” and “does not translate to private universities.”

–Adapted from an article by Marc Perry in The Chronicle of Higher Education, October 4, 2011

Information on the New Digital Millennium Copyright Act Exemptions

On July 26th, the Library of Congress issued its triennial statement of exemptions to the portions of the Digital Millennium Copyright Act (DMCA) that forbid the circumvention of digital rights management (DRM) and other technological measures intended to prevent access to or copying of digital materials. Three years ago, the announced exemptions allowed film and media studies professors to crack the content scrambling system (a.k.a. CSS) on DVDs in order to rip short clips to make compilations for classroom use. This seemed at the time like an awfully restricted exemption — literally only film and media studies profs (no profs in other fields, and no students), literally only in order to create compilations of clips for use in the classroom (not for use in critical writing) — but it appeared then that the statement might be the thin end of the wedge.

And so it turns out to have been. The exemption on the cracking of CSS now extends to all college and university instructors, as well as students in film and media studies courses, and the permitted “educational uses” now include critical commentary and documentary production, as well as the exceptionally broad category of “non-commercial videos.”

Moreover, the newly announced exemptions eliminate claims of copyright violation as grounds for preventing jailbreaking and unlocking cell phones (though violation of a particular company’s Terms of Service may still be an issue), and they grant permission to those who circumvent protections on video games in order to test or study their potential security risks. Finally, the exemptions also permit circumventing DRM in order to activate the text-to-speech function of e-books for which the function has been disabled, as well as circumventing DRM in order to make e-books usable by “screen readers that render the text into a specialized format.”

In all of these cases, the exemptions come with the caveat that where there are other means of accomplishing the same thing (getting video clips; getting e-books with the audio component enabled), consumers must take the route that does not require circumventing DRM, but where there is no other way, the position seems to be that those who have legally purchased texts and objects protected by DRM have the right to break those systems for purposes that would otherwise fall under the category of fair use.

–Kathleen Fitzpatrick in the “ProfHacker” bloc at The Chronicle of Higher Education, July 27, 2010.

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