12
O R N E R
with Mark Walters
In December 2010, Ambrose Video Publishing, an educational video producer, and the Association for Information and Media Equipment, a non-profit trade association, filed a lawsuit against UCLA for copying and streaming DVDs for professors as a part of their coursework. The videos in question were Shakespeare plays produced by AVP, and AIME claimed that AVP’s business, and the business of their members, would suffer if UCLA and other academic libraries continued to stream the videos. UCLA claimed fair use allowed them to make copies of the DVDs. In November of last year, Judge Consuelo Marshall issued an order dismissing the complaint, but not for the reason you would expect: she claimed the plaintiffs lacked standing. As for UCLA’s claim of
fair use? Judge Marshall declared ambiguity. After balancing the four factors of fair use, discussed last time, Judge Marshall concluded: “there is, at a minimum, ambiguity as to whether Defendants’ streaming constitutes fair use. . . Notably, no Court has considered whether streaming videos only to students enrolled in a class constitutes fair use, which reinforces the ambiguity of the law in this area.”
One way forward is to follow a code of best practices
Although the case was dismissed, legal scholars agree: the UCLA case did not decide if streamed digital video was fair use.
This puts librarians and academics alike in a tricky place. What to do when there is no established rule or regulation? One way forward is to follow a code of best practices, like the one offered by the Association of Research Libraries, entitled: Fair Use for Academic and Research Libraries. The Code is available here: http://www.arl.org/ pp/ppcopyright/codefairuse/code/index.shtml As you can see from the UCLA case, fair use can be ambiguous. Library professionals and academics who exercise the guidelines listed in the ARL document are in a far better position to defend their fair use policies. And yes, the guidelines include a fair use exception for streaming videos.
February 15, 2013