THE LONG ARM OF COPYRIGHT
Can you excerpt from
somebody else's video or other
copyrighted material for use in your own
classes?
On a fair-use basis, sure you can -- if the use
is limited,
if it's for educational purposes only,
if the other material has already been
published.
(Other guidelines apply as well. See fair-use
sites
below).
Fair use, however, isn't as easy as it used to be.
Big
copyright holders have fenced in a lot of
material over the past decade. The
long arm of
copyright has been getting longer.
United States copyright
law now says that, even
if your intention is legal fair use, breaking
a
code to get to the material makes you a criminal.
WATCH THIS
CASE
Watch for a decision on that particular point from
the 2nd
Circuit Court of Appeals in New York City as
early as this week.
http://eon.law.harvard.edu/openlaw/DVD/NY/
The case
is Universal City Studios Inc. v.
Reimerdes. Harvard University School of Law
is
tracking the case at this site.
The litigation, which has drawn
much attention
from copyright scholars and activists, bears on
how much
content will be available for fair-use
purposes in your
classes.
Here's how it started:
Publishers of digital-video disks
created a
content-scrambling system (CSS) that encodes DVDs
so the disks
only play in the geographic region in
which you buy them.
Regional DVD
coding allows timing of releases so
that DVD sales don't cannibalize
theater-ticket sales.
For example, say the industry releases a
film
first in the U.S. By the time the film premiers in
Tokyo, it might be
ready for DVD release in the U.S.
To see the film in Japan, you must buy
a theater ticket.
CSS prevents you from viewing a DVD you might
obtain
from the U.S.
You saw this coming: Enter DeCSS, a software
program
developed by a Norwegian teenager. DeCSS disables
CSS.
Advocates say that one justification for DeCSS is that
it's
difficult to play a DVD on a computer running the
open-source Linux operating
system. You've got to crack
the code to be able to do it.
In 2000, a
so-called "hacker magazine" entitled
2600 posted links to sites at which
DeCSS downloads
were available.
Film studios sued, charging that 2600
was violating
the U.S. Digital Millennium Copyright Act of 1998.
Last
August, a U.S district court in New York ordered 2600
to stop posting
the links. 2600 appealed.
At issue is a provision of the act -- known as
DMCA
-- that makes it illegal to bust encryption.
IMPORTANT FOR
EDUCATION
The New York case is important for the future
of copyright
in education and other areas, asserts
Harvard Law School Professor Lawrence
Lessig, who wrote
a friend-of-the-court brief in the Reimerdes
case.
Lessig argues that big copyright holders, including the
film
industry, are blocking opportunities for educational
and other fair
use.
Suppose a bright high-school sophomore figures out
how to break
the code on a digital video so that you
can pull a few seconds from a movie
to demonstrate a
point in your Web-based class.
Fair use? Maybe.
Legal? No. The kid is in violation
of the DMCA for breaking the
code.
With encryption enforcing the copyright law, you may
not even
get a chance at fair use.
"You can scream, 'Fair use, fair use!' " Lessig
told
participants in a Harvard seminar on Internet law last
week in
Cambridge, Mass. "The machine won't care."
The provision in the act
protecting encryption
"dramatically departs from copyright's
traditional
balance between owners' limited rights and users'
privileges,"
Lessig argued in his brief.
If the appeals court weakens the code-busting
provision
in the act, it may signal abatement in the decade-long
pattern
of locking up more and more material for longer
periods under
copyright.
Or the court may uphold the provision -- and the trend
will
continue. So watch this case.
COPYRIGHT SITES
Here are some
sites covering copyright:
http://www.cetus.org/fairindex.html
"Fair Use of
Copyrighted Works: A Crucial Element
in Educating America" is a document at
this site from
the Consortium for Educational Technology for
University
Systems, a university group.
http://www4.law.cornell.edu/uscode/17/107.html
Cornell University's site outlines fair use
under U.S. copyright
law.
http://fairuse.stanford.edu/
This Stanford
University site lists resources and
Web sites covering fair
use.
http://www.loc.gov/copyright/
The U.S. Copyright
Office site provides copyright
basics and information about fair use. A
reader suggested
it last September.
http://www.educause.edu/issues/dmca.html
This site
describes the DMCA's bearing on education.
The site is run by Educause, a
Washington, D.C., non-for-
profit that works on issues of technology in
education.