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  • Law, Policy -- and IT?

    Tracy Mitrano explores the intersection where higher education, the Internet and the world meet (and sometimes collide).

Internet 102
July 19, 2010 - 5:41pm

Steve begins his second presentation with a primer for FERPA in the electronic age. He is the expert on the Family Educational Rights and Privacy Act, so we are fortunate indeed. What are the principles? No disclosure, as a rule, of education records, notice if the institution does disclose (unless there is a legal exception, for example in the case of an act of terrorism), access to student to read and, if necessary, ability to change mistaken information (for example, the wrong grade).

Dissecting key words that relate to institutional obligations regarding FERPA,terms such as "education record," "maintain," and "directly related" begin the lesson.

He applies them to real facts in order to explain. Is email a record? Yes, given the broad definition of education record under the statute. Is it directly related? Yes, by definition of the "to" or "from" line. Maintained? No, because the messages residing in student electronic mailboxes are not "maintained" by the university for any education purpose. Students can delete them at will. Therefore, outsourcing of student email is not a violation of FERPA.

How about exceptions for disclosure? Directory information is the first exception. Students may have an opportunity to opt out of the directory, although this option does not apply to the classroom. Legitimate educational interests allow for disclosure within the institution. That exception even includes independent contractors. In all cases, however, institutions must reasonably secure the information using administrative, technological and physical safeguards. And here is the surprise: no specific data breach notification applies, but nota bene, state data breach laws my require notification anyway!

Steve's theory: the pedagogical exception also applies. What is it? There are many practices such as art critique of student work or the curation of student theses and dissertations that exist notwithstanding FERPA. He does not mean to suggest that just because the technological ability exists, then it is automatically a "pedagogical exception," but it is worth remembering that FERPA was never intended to straight-jacket education.

Two other points remain: first, there is no private right of action for FERPA. That means that an individual cannot sue another person or the institution for a violation. The only sanction is a serious one, to be sure; colleges and universities could, theoretically, lose federal funding, including under financial aid. But the truth is that there is not a single case of an institution actually losing funding under this law. The Department of Education, which regulates FERPA, acts to assist institutions in complying with the statute.

More on outsourcing: There are a number of contractual issues open to negotiation when working out an outsourcing contract: FERPA, HIPAA, GLBA ... all have "safeguarding" requirements that the contract must include because your institution remains liable for those kind of records, education, health and financial respectively. It is also important to negotiate what happens in the event of a breach ... make sure the outsourcing company assumes that responsibility! Patent infringement is another issue. Is the vendor willing to warrant that they will pay for negligence that results in infringement should use of their systems cause for an infringement.

URL terms are particularly thorny. If too replete a part of a contract, for example in early Google mail contracts, then, as Steve says, this document is meaningless! Experience suggests that sometimes the institution can cabin the URL terms that have the potential to undermine the contract completely, but striking the right balance it is a tricky business. Don't just trust the vendor! End user responsibilities run along a similar lines: reasonable best efforts, buttressed by informing users of the rules, are a good vanilla rule, but even better would be something that takes liability away from the institution for the malfeasance of a user. What about terminations? Does the vendor provide adequate notice, and time for remediation? Warranties are standard provisions in contracts, and Steve's retort takes me back to classical literature: Abandon all hope ye who enter here!" It gets worse. Indemnification clauses seek to shed liability for end users ... net/net: who pays the lawyer? Make sure, at the very least, that the contract maintains the American system -- each side pays, and not the English system where winner takes all, damages and attorney fees.

Choice of law is also a standard provision, defining in whose courts will a lawsuit be entertained. This provision can be negotiated, especially for state institutions, but Steve prefers the rule that states that suits occur in the defendant's jurisdiction. Finally, there is the "contract" provision. Steve says it really means: "Everything the salesman told you is a lie!" In short, if it is not in the document, it is not enforceable. Fair enough, for each side, so long as the institution has exercised Steve's first rule: Don't just accept a vendor's contract. Negotiate contracts with your institution's interests clearly in mind.

On to copyright. Of course, this is an issue that is the fodder for a thousand pages. Steve is just doing the basics. And stay tuned for the many sessions of this conference that address the deeper, contemporary issues. (Some of which will be streamed, here.)

Copyright is an intangible form of property. Not the same as physical property. Copyrights are a form of a monopoly. The owner has rights over the "property" with some exceptions. The five important rights are to make copies; to modify or make a derivative work; to distribute works to the public, to sell, lend, give, etc.; to perform; or to display a work publicly.

Now for the exceptions: A first legal distribution allows for a "second sale" by the owner of that copy; the foundation of our library system rests on the "first sale." Remember that does not mean that the owner of the copy has the right to copy it, but to sell the legally procured copy. Holders of copies can put them on public display; the copyright owner cannot tell you where to hang a painting or a picture. The copyright holder does not have an exclusive right over the facts and ideas of a work; in other words, others may use the facts of a book, even if not allowed to use significant portions of the words or expression (wait for fair use ...). Copyright does not protect the manufacture, distribution or display of a useful article displayed. Steve is making a distinction between original expression and a useful article, and uses the example of a dress. Knockoffs of the dresses worn by movie stars at the Oscars do not violate copyright. Also, criticism is most certainly not a violation.

What's not an infringement? If you are the copyright owner, of course, you can use it. If there is no copyright owner because it is in the public domain (as in any work published before 1923). Permission from the owner always makes a difference. And then there is fair use ... the catch-all when other specific exceptions do not apply.

But before we get to a full explication of fair use, Steve runs us through section 110(1), Classroom use. Performance or display of work by instructors in face to face teaching, so long as whatever is performed or displayed has been legally obtained. The TEACH Act requires reasonable methods of authentication; capture for that which cannot be copied -- streaming for example; material just for the amount of time it is used in instruction; access only to students appropriately enrolled and available only for the time of instruction; digital conversions are okay, for example from analog to digital, but only to the amount limited to use in the classroom ... unless a digital version is available, in which case you must buy it, and remember no breaking the circumvention, because that breaks section 1200 of the DMCA!

TEACH is a safe harbor, but it does not exclude fair use as another exception. Wisely, Steve does not go into detail on the four factors, not merely because of a lack of time, but because he suspects a deeper test: what makes sense and is best for society without unduly harming authors and artists. That makes sense because it comports with the standards established by our founding fathers: innovation balanced with incentive. Steve celebrates the ambiguity of fair use reminding us that we, American society or educators, would not want an absolute black line, because the ability to make arguments is the ability to levy justice. A theme emerges: a good pedagogical reason to do something goes a long way toward fair use. And add a dash of "transformative use" for good measure. "Place-shifting" is another option. "Place shifting" is like "time-shifting" from the VCR days. Place-shifting allows for a more convenient time, it is legal, so long as copies are not made to be distributed. Common sense prevails here: it makes no impact on the copyright holder to "place-shift," and that goes to one of the most important fair use factors, market effect. So UCLA, which has sovereign immunity due to the old Eleventh Amendment protection states enjoy not being "hauled" into federal court, might doubly be okay; it is doing the right pedagogical thing and as a state institution it cannot be found to pay damages. The larger point remains for private institutions, for example USC, which is in the same neighborhood as UCLA: combinations of TEACH plus fair use wrapped in this notion of a "pedagogical reason" should allow for the streaming of video for appropriate classroom uses.

What do I appreciate so much about Steve McDonald's analysis? Intelligence, common sense, excellent presentation of material that otherwise overwhelms a non-specialist, and many a specialist too! The greatest quality of all for me, however, resonates from his pedagogical themes. He argues not just from legal perimeters but for the missions of our colleges and universities. He said it more elegantly as a final lesson: "Pigs get fed and hogs get slaughtered." No wonder his wife Jane calls him the quintessential "reasonable man!"



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