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Fighting a Copyright Charge

March 4, 2010

The University of California at Los Angeles on Wednesday announced that it will continue streaming copyrighted videos in online “virtual classrooms” despite legal objections from an educational media trade group.

The university’s decision is the latest development in a copyright dispute with the Association for Information and Media Equipment over whether it is legal for the university to convert DVDs from its libraries into a digital format that students can stream from password-protected course Web sites. UCLA considers the practice “essential,” since it allows students to watch the videos on their own computers and on their own time, rather than having to gather in a classroom. Many educators at other colleges have watched the case with intent, waiting to see what implications, if any, the spat might have on their own institutions' use of streaming video.

The trade group, which represents 16 educational films companies, raised the objection last fall, and the university voluntarily suspended the practice while attempting to resolve the issue through talks. Those talks now appear to have failed.

“Course instruction long ago ceased to be bound by the walls of the classroom, and we are obligated to provide students with appropriate instructional content in whatever medium helps to foster an effective learning environment,” said Jim Davis, the university’s vice provost for information technology and chief academic technology officer, in a statement yesterday.

The university’s Information Technology Planning Board recently drafted a set of 12 principles reinforcing the practice, which the Faculty Senate then endorsed. One of the principles said students had faced “physical, emotional, and economic” hardship due to the temporary suspension of streaming. “If videos and other educational content are not available in the virtual classroom,” the board said, “then students are faced with difficult choices such as not doing their coursework, avoiding courses that require non-print media (which is only a short term solution, as students will have difficulty completing their degrees without these courses), lost income by taking time off work, or increased costs for extra commuting.”

The trade group has said that if institutions such as UCLA are allowed to continue creating their own digital copies of films instead of paying for streaming licenses, the companies that produce those films could face more than mere inconvenience. If each educational institution only bought one DVD copy of each film and then streamed it to many students, several of the companies represented by the trade group have said, the filmmakers responsible for those works would not be able to continue producing them.

Lawsuit Could Happen

The association appears to be willing to play hardball. It has hired Arnold P. Lutzker, a high-profile Washington lawyer who specializes in copyright in the digital age, and has indicated that it might sue UCLA and any other universities it discovers to be streaming digital copies of its films without permission.

“The decision [by UCLA to continue streaming] was made unilaterally despite the expressed concern of AIME members and AIME’s effort to seek a fair and responsible solution to the dispute,” Lutzker told Inside Higher Ed via e-mail on Wednesday. “Based on the facts, UCLA’s justifications for the resumption of streaming (fair use and The TEACH Act) are legally flawed and fundamentally inconsistent with copyright law. The message that UCLA sent AIME and all its members is that they and literally every other university have every right to buy a single copy of a video and stream it to an unlimited number of students forever without permission or compensation to the creator.

“Given that message, AIME members will retain their right to move against UCLA and others that we are investigating,” Lutzker wrote.

Several observers who posted comments on previous stories about the conflict have encouraged UCLA officials not to shy away from legal threats. In the university statement, Davis, UCLA’s vice provost for information technology, acknowledged that this case could affect other universities that also create digital versions of copyrighted videos.

“We’re well aware the outcome of this dispute could affect other educational institutions, and it's important that UCLA take a leadership role and demonstrate just how critical the appropriate use of technology is to our educational mission,” Davis said.

The university continues to assert that the fair use exemptions of the Digital Millennium Copyright Act and the Technology, Education and Copyright Harmonization [TEACH] Act of 2002, which permit the unlicensed use of copyrighted materials if they are used in the classroom and for educational purposes, put them on solid legal footing. The trade group says the password-protected Web sites where the university is posting the videos are not “classrooms” under the law. The university says they are. The relevant legal issues have been debated by experts at length in the comments sections of previous stories.

The university appears to be hedging against future legal action by changing the protocol professors follow when requesting that a DVD be digitized for curricular use: The professors now must provide, in writing, the pedagogical rationale for using the video and an explanation of why it is integral to the course they are teaching.

Davis said the change in protocol is “in no way” an admission of wrongdoing, but is meant to ensure that the university is using the video appropriately under its interpretation of the law.

 

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