Beyond Ebooks: A Question of DVD Streaming
As a former AV geek during my high school and college years, I can assure you that schlepping movies (or worse, TVs) across a campus gets old pretty fast. In analog days, the answer was to play the VHS tape in a central location and then deliver it via closed circuit TV to the classroom. When one university tried to extend this to delivering DVDs via a closed network, however, they faced a legal challenge.
The Association for Information Media and Equipment (AIME) and Ambrose Video Publishing (AVP) sued UCLA in December 2010 claiming that the practice of streaming DVDs across the closed university network to students enrolled in a class was a violation of copyright. The initial case was dismissed in October 2011 based in part on the immunity of UCLA as a state institution from individual suits (PDF file). AIME was allowed to amend its complaint to directly name staff at UCLA who were engaging in the DVD streaming. In November 2012, the amended suit (PDF file) was also dismissed. AIME and AVP are not appealing the decision.
So what might this mean for your school or academic library? While this was not an absolute statement permitting the streaming of DVDs via a closed network, the ruling does provide some support for the practice, at least in the narrow confines of how UCLA does it. There are three key parts to the decision: (1) the question of fair use, (2) the restrictions of licensing, and (3) the technical aspects of the practice.
In this case, the court found ambiguity as to whether or not streaming a DVD would constitute fair use. The judge noted that the use was certainly educational in nature and that even though the item in question was a creative work (say, a production of a Shakespeare play), the purely educational nature of the use balanced out the issue. As to the percentage of the work used, the court found that despite the argument that DVD streaming was analogous to time-shifting, there was probably a slight tilt against fair use. In looking at the impact on potential DVD sales, the judge clearly stated that there was no impact: “A student who watches an AVP [Ambrose Video Publishing] DVD in a classroom is no more likely to purchase the DVD than if the student watches the DVD on his or her computer.” In the end, the judge found that, despite the ambiguity, it would not have been clear to a reasonable person that this wasn’t fair use, which seems to be a double negative implying that a reasonable person would find streaming DVDs via a closed network to be fair use.
The second key aspect of the case was the claim by AIME and AVP that the AVP license clearly disallowed streaming and so UCLA was knowingly violating the agreement. The court again found ambiguity. The marketing brochures from AVP stated that schools and libraries received public performance rights, but the terms and conditions seemed to offer conflicting statements. The terms and conditions forbid AVP materials from being duplicated, broadcast, or transmitted by cable or otherwise on any open multireceiver or internet system. The court found that this was unclear; a reasonable person might conclude that streaming within a closed network to authorized viewers would therefore be allowed. The closed nature of the UCLA network and a statement in the terms and conditions that the university had authorization “for exhibition to nonpaying private audiences” led the judge to grant the motion to dismiss.
The third key point to look at in this ruling is the judge’s review of the technical aspects of the case. This final ruling reiterated the 2011 decision that “any copying of the DVDs was incidental to the right that Plaintiff licensed to Defendants, and therefore constitutes incidental fair use.” The order goes on to clarify that this ruling covers even the copying of the DVD required to upload it onto the streaming server. The court also dismissed the claim by AIME and AVP that copies were further created and publicly distributed by the simultaneous existence of the DVD copy on the streaming server and on the end-user’s computer. As the judge notes, the copy on the end-user’s computer is not fixed and so does not infringe in this instance. Finally, the order also dismissed claims regarding a potential DMCA violation. The judge found that since UCLA had lawful access to the DVDs, its usage of those DVDs was allowed.
What it all means
So, can you stream DVDs? The technology certainly exists, but the legal question of whether you “may” stream DVDs is a bit cloudy. In this specific case, UCLA’s motion to dismiss was upheld, but the ruling was heavily based on ambiguity in both fair use and the DVD publisher’s licensing documents. Another judge in another district might see things differently. The one real takeaway from this case is that the technical aspects of UCLA’s program were carefully controlled to show an intention to provide restricted and limited access.
If your library is considering something like this, I suggest that you seek real legal assistance to help you navigate the ambiguities.