May one stream a Netflix Video for in-class use?
I have been asked more than once by a faculty member, may I stream Netflix videos to my classroom? Most Netflix videos, unless they are older films in the Public Domain, are protected by copyright. However, there are statutory exceptions that allow educators to show all or portions of films in an educational classroom. Title 17, Section 110(1) of the United States Copyright Act, for example, states educators may show a “performance… of a work… 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.
In other words, this section permits an educator to show a film, or a portion of a film, in a face-to-face classroom or a similar location, unless the copy of the film was unlawfully made. Therefore, if an educator at a university or at a K-12 entity wants to show a film, or a portion of a film, for educational purposes in a face-to-face classroom, he or she is entitled to do so. Section 110(1) also mandates the film shown must be lawfully made. As far as I know, Netflix videos are lawfully made. Thus, at first glance, section 110(1) appears to permit streaming Netflix videos to a classroom.
But, when one signs a license agreement, he or she often gives away certain freedoms, such as copyright exceptions. The Netflix user agreement overtly conveys “the Software is only for your own personal, non-commercial use and not for use in the operation of a business or service bureau, for profit or for the benefit or any other person or entity.” Most copyright attorneys comprehend the phrase “for your own personal… use” as giving away your statutory exceptions to use section 110(1) and even section 107 (fair use). Thus, when one signs a licensing agreement with Netflix, he or she in essence is agreeing to only stream videos in the privacy of his or her own home. Educational entities willingly give away such freedoms often when they sign licensing agreements with various vendors.
What if you invite your class over to your house and stream a movie for educational purposes? After all, the statute does state “in a classroom or similar place devoted to instruction.” May one’s domicile be considered a similar place devoted to instruction. Probably not, and it is probably not convenient to circumvent a licensing mandate by inviting students to one’s private domicile, although that could be up for debate. Yet, this exemplifies how licensing agreements can and do often trump one’s copyright exception freedoms. For example, the only legal dings the defendants received in the Georgia State case were due to licensing agreements they had signed that trumped their “Fair Use” in placing excerpts of book on e-reserve. So, the lesson learned I suppose is to be careful when signing licensing agreements, read them carefully, and I encourage negotiating with publishers so that one can retain as many statutorily and Constitutionally mandated freedoms as possible.
The Netflix type license has not yet been argued before a court, but it probably will at some point. Also, do not confuse the assumed prohibition of the Netflix license with a prohibition on streaming. Many universities are streaming their own digital content to students today, via password protected content. This digital streaming of one’s lawfully purchased and owned (not accessed) content issue has not been completely resolved either. However, UCLA recently litigated this issue and received a favorable outcome from a court, although the issue is far from settled. My next post will dissect the UCLA litigation and why, for now, UCLA is permitted to stream its owned content to its students.
—Submitted by Kris Helge, Scholarly Communications Librarian