Hi - I'm excited to be guest blogging this month about a few topics that I find engaging. I hope they are also relevant to many of you. Thank you to the moderators for this opportunity.
Like many people, I scroll through Twitter looking for comments and articles about things that interest me. Last week, I saw the following exchange between film director extraordinaire Ava DuVernay and Alex Lauth, an employee of Villanova Law School:
@AVAETC I work at Villanova Law School and we want to have a showing of #The13th for students in our MLK programming week. Is that allowed?— Alex Lauth (@AlexLauth) November 29, 2016
My interest was immediately piqued for several reasons. First, as a law professor committed to social justice, it is encouraging to read that law schools around the country are providing space to screen 13th, the Netflix documentary film directed by DuVernay centering on racial inequities in the American criminal justice system.
Second, I’ve been planning a January 2017 screening of 13th at my own law school, outside of my standard classes, that I'd like to be open to the full campus. I have a Netflix membership and could easily stream the film from my personal account. One of the items on my to-do list has been to figure out whether such an approach is permissible under both Netflix policy and current copyright law. This proved to be more challenging than I thought, so DuVernay’s announcement was quite timely.
In addition, when members use the Netflix streaming service, they must also agree to additional restrictions in the End User License Agreement (EULA). To stream a film or series, users must log into their account and use software that makes streaming possible on a particular web browser. The EULA also applies to apps used on tablets, smartphones, digital players, video game consoles, and smart TVs. Under the EULA, members agree to use Netflix’s software for personal, non-commercial use and not for the benefit of any other person or entity. The language also explicitly states that members can not:
publish, display, disclose, rent, lease, modify, loan, distribute or create derivative works based on the Software or any part thereof; or . . .
take any action that will infringe on the intellectual property or other proprietary rights of Netflix or any third party software provider . . .
This would seem to proscribe classroom and educational streaming with a personal Netflix account using the software.
The law does provide some exceptions for educational uses of copyrighted work, including fair use and the classroom use exemption. It is a common misconception, however, that all educational uses are clearly covered by these exceptions.
With respect to the Copyright Act’s articulation of fair use through Section 107, the law merely provides a balancing test and not a bright-line legal rule. The law states that:
[T]he fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;(2) the nature of the copyrighted work;(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and(4) the effect of the use upon the potential market for or value of the copyrighted work.
As interpreted by the Supreme Court, the principle of fair use requires a case-by-case analysis, so the only way to be certain any use is actually “fair” is to obtain final adjudication from a court. Otherwise, a person must make their best educated guess or negotiate their use with the copyright owner directly.
Section 110(1) of the Copyright Act, on the other hand, provides a more clear exception called the classroom use exemption. It states that the following is not copyright infringement, even if a teacher has not first obtained permission from a copyright owner:
performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made . . .
While this statute is helpful, it only applies to face-to-face, inside-the-classroom teaching displays at nonprofit educational institutions. In addition, there are complicated questions revolving around the classroom use exemption and the use of Netflix’s software. While the software is proprietary to Netflix, the company may or may not own the copyrights in the underlying films being watched (in fact, until recently, Netflix did not even own many of its own original shows like House of Cards and Orange is the New Black). The classroom use exemption applies to the copyrighted film itself - not Netflix's software. Even if showing the film itself is permissible, using the software may not be. This could mean that use of Netflix's streaming software falls outside of the classroom use exemption and within the scope of copyright infringement.
In addition, the exemption provides a caveat when copies are "not lawfully made." This is particularly interesting because just a few days ago, Netflix announced that members can now download, in addition to stream, movies for playback without an internet connection. The move was lauded by Netflix members, myself included, who don’t want to burn cellular data to watch shows or films while traveling.
[Y]ou agree not to archive, download (other than through caching necessary for personal use), reproduce, distribute, modify, display, perform, publish, license, create derivative works from, offer for sale, or use content and information contained on or obtained from or through the Netflix service without express written permission from Netflix and its licensors.
If a professor/Netflix member agrees not to do anything in the aforementioned laundry list, does streaming for educational purposes make a copy "not lawfully made" under the statute? Perhaps. If so, this could remove some streaming activity from the safeguards of the classroom use exemption and open the doors to infringement liability.
Given all of this, common copyright exceptions may not apply to streaming for educational purposes because the law is unclear.
Netflix, for what it is worth, doesn’t appear to have a public position on streaming for educational classroom purposes, but it does seem to turn a blind eye to it in some instances. Even so, streaming a film from a personal Netflix account into a classroom of students (or others) could expose both the professor and the university to unwanted attention or worse. In fact, some universities actively caution professors against streaming. Ava DuVernay’s tweet seems to confirm that this kind of activity is generally a no-no – according to her, Netflix has never provided this kind of waiver in its history.
I’m excited to hear that Netflix may be loosening some of its restrictive policies, at least for public screenings of 13th. Though copyright law can be used as shackles against those of us with Netflix accounts, it seems that Netflix is loosening them for the greater good. I’m looking forward to having a showing at my university, and I hope you will consider it too.
P.S. If you haven’t seen the 13th documentary, please set some time aside to watch it. Preferably when you have time to vent, woosah, and/or decompress afterward. The message is well researched, nonpartisan, and emotionally riveting. For current and future members of the legal community in particular, it both charges us to think (and re-think and re-think) about how we operate within the legal system and implores us to dismantle the inequities that cripple it.
Shontavia Johnson serves as the Kern Family Chair in Intellectual Property Law and directs the Intellectual Property Law Center at Drake University Law School. She curates content related to law, policy and pop culture at www.shontavia.com and can be found @ShontaviaJEsq across social media platforms.