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 for a decision on that particular point from
the 2nd Circuit Court of Appeals in New York City as
early as this week.
  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.


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.


Here are some sites covering copyright:
  "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.
  Cornell University's site outlines fair use
under U.S. copyright law.
  This Stanford University site lists resources and
Web sites covering fair use.
  The U.S. Copyright Office site provides copyright
basics and information about fair use. A reader suggested
it last September.
  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.