Help me guide someone through fair use in scholarship
July 18, 2015 12:24 PM Subscribe
Help me guide someone through fair use in scholarship. Or not, as appropriate.
I work in academic technology support. We were recently contacted by a faculty member asking for help downloading videos from YouTube so that they can host them on our institution's private video streaming service. Our first instinct is to push back, shut them down and maybe start monitoring and deleting because of the possibility of copyright infringement. But, since my understanding of fair use in academia is fuzzy (possibly because the intersection of fair use and scholarship is so fuzzy) I thought I should see if there's anyone here who has handled a similar situation and can provide guidance, copyright education resources, sample policies and/or advice.
The background: up to now, the faculty member has been providing YouTube links to their students. In the past year, a few have broken--sometimes for technical reasons, sometimes because they were simply removed from YouTube, either by the creator or otherwise (see below). We made it clear, though not in so many words, that we can't do anything to guarantee the long-term durability of rando internet links, that YouTube is free content, and that they get what they pay for.
The faculty member's response was to use our screen recorder to begin capturing the videos as they play them back. Finding this time-consuming, they contacted again to ask if we could provide a more elegant YouTube-scraping solution. The videos are, for the most part, similar to this one. As far as I know, the faculty member has never contacted the authors or asked for permission to use their videos. Possibly complicating the situation, many of the videos have soundtracks which themselves are copyright-infringing (I suspect this may be related to the high rate at which the links "break").
So, I like the idea of fair use, but I'm afraid that if we so much as broach the subject, especially in an inexpert or imprecise way, the faculty member will decide that their use is fair use because it "feels fair" to use videos like this in a nonprofit educational setting. On the other hand, if we shut them down too aggressively, I think there's a strong possibility that they will continue to do copyright-infringing things in a place where we can't see them do it (this is, as a friend puts it, the "LA LA LA I CAN'T HEAR YOU INFRINGING COPYRIGHT" approach).
The background: up to now, the faculty member has been providing YouTube links to their students. In the past year, a few have broken--sometimes for technical reasons, sometimes because they were simply removed from YouTube, either by the creator or otherwise (see below). We made it clear, though not in so many words, that we can't do anything to guarantee the long-term durability of rando internet links, that YouTube is free content, and that they get what they pay for.
The faculty member's response was to use our screen recorder to begin capturing the videos as they play them back. Finding this time-consuming, they contacted again to ask if we could provide a more elegant YouTube-scraping solution. The videos are, for the most part, similar to this one. As far as I know, the faculty member has never contacted the authors or asked for permission to use their videos. Possibly complicating the situation, many of the videos have soundtracks which themselves are copyright-infringing (I suspect this may be related to the high rate at which the links "break").
So, I like the idea of fair use, but I'm afraid that if we so much as broach the subject, especially in an inexpert or imprecise way, the faculty member will decide that their use is fair use because it "feels fair" to use videos like this in a nonprofit educational setting. On the other hand, if we shut them down too aggressively, I think there's a strong possibility that they will continue to do copyright-infringing things in a place where we can't see them do it (this is, as a friend puts it, the "LA LA LA I CAN'T HEAR YOU INFRINGING COPYRIGHT" approach).
Here is the Fair Use Checklist used by Columbia University. Scroll down for a PDF link to the actual checklist.
posted by rakaidan at 1:27 PM on July 18, 2015
posted by rakaidan at 1:27 PM on July 18, 2015
There will likely be ready assistance for you, if not an outright copyright officer, in your campus library. If you're in the rare institution where no one there can help you with an academic fair use policy for your specific institution then consult with the general counsel's office. Since the legal definition of fair use is determined on a case by legal case basis and since those determinations change constantly each school will tend to provide their own guidelines. I work in academic technology in a copyright context for a vendor and we absolutely defer to each school's own policies. I can tell you that those policies - the tolerance for instructors making their own fair use declarations and the school's general tolerance for fair use declarations at all - varies WIDELY. As it's the institution that's going to bear the brunt of any legal action they tend to have thought about this and defined where their tolerances lie and you should rely on their guidance and not those of anyone here.
I'm not even a lawyer but this is a "get a lawyer" situation.
posted by marylynn at 1:28 PM on July 18, 2015 [2 favorites]
I'm not even a lawyer but this is a "get a lawyer" situation.
posted by marylynn at 1:28 PM on July 18, 2015 [2 favorites]
What's strictly legal here is not nearly as important as what your university counsel has determined is appropriate.
Scholarly fair use (like other forms of fair use) is not an affirmative right, but a "defense," based on criteria that "tend" to make a use more or less likely to be fair. You only find out if you were right about your interpretation, though, at the end of the court case when you've been sued. So most organizations in academia err very much on the side of caution.
Scraping YouTube videos for instructional purposes would fall on the right side of the fair use line for me personally, but you need to be on board with whatever your legal people have decided.
posted by gerryblog at 1:41 PM on July 18, 2015 [3 favorites]
Scholarly fair use (like other forms of fair use) is not an affirmative right, but a "defense," based on criteria that "tend" to make a use more or less likely to be fair. You only find out if you were right about your interpretation, though, at the end of the court case when you've been sued. So most organizations in academia err very much on the side of caution.
Scraping YouTube videos for instructional purposes would fall on the right side of the fair use line for me personally, but you need to be on board with whatever your legal people have decided.
posted by gerryblog at 1:41 PM on July 18, 2015 [3 favorites]
That said, scraping YouTube videos for use in the classroom would (at most places) be all right. Providing the scraped copy to students would possibly be okay, depending on the nature of the work and the nature of the distribution mechanism, but there are a lot more pitfalls there.
posted by gerryblog at 1:44 PM on July 18, 2015 [2 favorites]
posted by gerryblog at 1:44 PM on July 18, 2015 [2 favorites]
Academic Fair Use varies by location, sometimes surprisingly a lot. There is no general answer we can give you. Luckily there should be someone at your University's library who does know this stuff, it's a pretty standard thing for Uni libraries to advise on. Academic fair use is generally a library thing because it often deals with re-using published writing or images in various ways. So I'd first ring your library and ask who you should talk to about this, then follow up with that person. That way you can get specific advice appropriate to your situation plus someone to back you up when you talk with the faculty involved.
posted by shelleycat at 2:01 PM on July 18, 2015
posted by shelleycat at 2:01 PM on July 18, 2015
Our first instinct is to push back, shut them down and maybe start monitoring and deleting because of the possibility of copyright infringement.
...
On the other hand, if we shut them down too aggressively, I think there's a strong possibility that they will continue to do copyright-infringing things in a place where we can't see them do it (this is, as a friend puts it, the "LA LA LA I CAN'T HEAR YOU INFRINGING COPYRIGHT" approach).
Yeah, I have to say, as a faculty member, this question is a perfect illustration as to why I would never ask a question like this of IT or technology support, and only of the library. I think you should stop trying to answer this question and simply refer them to the library resources on fair use, which will almost certainly exist and have a clear answer that is not "push back, shut them down, and start monitoring". I can find mine by googling "institution library fair use", so perhaps try that. Ours as it happens are based on confu, which I believe is quite common and provides some specific guidelines that would allow limited storing of videos up to certain limits under fair use for multimedia projects in classroom settings.
This is not a get-a-lawyer situation, since someone has probably already gotten a lawyer in the process of preparing guidelines like the above that no doubt already exist.
posted by advil at 3:05 PM on July 18, 2015 [5 favorites]
...
On the other hand, if we shut them down too aggressively, I think there's a strong possibility that they will continue to do copyright-infringing things in a place where we can't see them do it (this is, as a friend puts it, the "LA LA LA I CAN'T HEAR YOU INFRINGING COPYRIGHT" approach).
Yeah, I have to say, as a faculty member, this question is a perfect illustration as to why I would never ask a question like this of IT or technology support, and only of the library. I think you should stop trying to answer this question and simply refer them to the library resources on fair use, which will almost certainly exist and have a clear answer that is not "push back, shut them down, and start monitoring". I can find mine by googling "institution library fair use", so perhaps try that. Ours as it happens are based on confu, which I believe is quite common and provides some specific guidelines that would allow limited storing of videos up to certain limits under fair use for multimedia projects in classroom settings.
This is not a get-a-lawyer situation, since someone has probably already gotten a lawyer in the process of preparing guidelines like the above that no doubt already exist.
posted by advil at 3:05 PM on July 18, 2015 [5 favorites]
I have worked in academic technology for ten years at a variety of institutions (small private liberal arts, small public liberal arts, large public research) and have dealt with this situation a million times. I'd be happy to share with you how I handle this, but would prefer not to do so publicly. OP -- can you either memail me, or ask the mods to update with a throwaway email address?
posted by zebra at 3:08 PM on July 18, 2015
posted by zebra at 3:08 PM on July 18, 2015
Followup from the OP:
This is a (relatively) small academic institution attached to a large non-academic organization, so many of our services. e.g. legal and the library, may not be as focused on academia (and concerns like scholarly fair use) as you would expect at a larger, "single-purpose" university.posted by LobsterMitten at 5:53 PM on July 18, 2015
I actually work in the library rather than in "IT support" proper. The fact that I handle questions about the technical aspects of YouTube scraping is, in large part, due to our relatively small size--I wear several hats. In the past my job has encompassed things like "provide information about how the technical capabilities of our e-reserves system will promote copyright compliance." So, I do know a bit about fair use, but not enough to confidently offer advice in this situation (hence the question).
I've also been around long enough to know that we don't have any prepared materials (guides, checklists, etc) intended to help faculty navigate fair use, and that we haven't had to address a question like this in the past--the ones I have seen come in are usually much more cut-and-dried. We definitely do not have a copyright officer and do not offer copyright permission services in any organized manner.
Legal, in general, is not very accessible, and even as a library employee I don't know how we would initiate contact in a situation like this. In general our only exposure to them is when we need contracts approved.
There are a few things worth knowing here that would help me make this decision
1. Whether the people who own the content are likely to sue
2. How locked down the students' access to the content would be (i.e. is it inside of courseware, or would it be on the open web)
3. How likely your school would be to support the teacher if there were a problem.
Because yeah what people are saying is correct, all Fair Use is, to some, is an exception to copyright law determined on a case by case basis. The good news is that the case law has been going more favorably towards more sharing. The Copyright office has a really good site that has summaries of case law. Cases like this might be of interest. The TEACH Act might apply and is actually a bigger deal than Fair Use. I'd also read this Code of Best Practices in Fair Use for Online Video. One of the things recent law challenges have taught us is that people who were at least trying to adhere to best pracrtices in fair use (i.e. following policies not trying to get away with something) were less likely to get sued. Crazy but true.
If it were me and the content was inside password protected courseware and not on the open web, I'd do it without a second though. I am not a lawyer, that is just where my risk tolerance lies. And this is all about risk tolerance. If it were me in your situation I'd either do it and let the teacher worry about copyright, or not do it unless the teacher can get you some sort of permission from someone else at the school (copyright people, lawyer, I don't even know, law professor) because as much as it's an important thing for library worked to know and understand, this seems above your pay grade from what you are explaining of the situation.
posted by jessamyn at 8:37 PM on July 18, 2015 [3 favorites]
1. Whether the people who own the content are likely to sue
2. How locked down the students' access to the content would be (i.e. is it inside of courseware, or would it be on the open web)
3. How likely your school would be to support the teacher if there were a problem.
Because yeah what people are saying is correct, all Fair Use is, to some, is an exception to copyright law determined on a case by case basis. The good news is that the case law has been going more favorably towards more sharing. The Copyright office has a really good site that has summaries of case law. Cases like this might be of interest. The TEACH Act might apply and is actually a bigger deal than Fair Use. I'd also read this Code of Best Practices in Fair Use for Online Video. One of the things recent law challenges have taught us is that people who were at least trying to adhere to best pracrtices in fair use (i.e. following policies not trying to get away with something) were less likely to get sued. Crazy but true.
If it were me and the content was inside password protected courseware and not on the open web, I'd do it without a second though. I am not a lawyer, that is just where my risk tolerance lies. And this is all about risk tolerance. If it were me in your situation I'd either do it and let the teacher worry about copyright, or not do it unless the teacher can get you some sort of permission from someone else at the school (copyright people, lawyer, I don't even know, law professor) because as much as it's an important thing for library worked to know and understand, this seems above your pay grade from what you are explaining of the situation.
posted by jessamyn at 8:37 PM on July 18, 2015 [3 favorites]
From a practical standpoint, it might be easiest if the faculty member makes private archival copies of the YouTube videos personally (there are, of course, many ways to download YouTube videos) and stored them personally instead of hosting them in your "private video streaming service." He/she could then make an archival copy available only to students in the class for a limited time if the original becomes unavailable (or only show those videos in class).
Legal advice should come from someone within your institution who is authorized to provide it.
posted by zachlipton at 1:31 AM on July 19, 2015
Legal advice should come from someone within your institution who is authorized to provide it.
posted by zachlipton at 1:31 AM on July 19, 2015
If you’re in the US, the USG has some copyright pages & a checklist which might be useful as a guide to whether this use would reasonably fall under fair use or not.
posted by pharm at 4:23 AM on July 19, 2015
posted by pharm at 4:23 AM on July 19, 2015
Mod note: From the OP:
This thread may be a bit stale, but I'll respond in case anyone's still reading:posted by taz (staff) at 6:15 AM on July 19, 2015
1. Whether the people who own the content are likely to sue
The "primary" creators may be unlikely to sue, but the videos often embody other copyrighted works for which that might not be the case (e.g. a popular song or songs included in their entirety as a soundtrack). Does the fact that these songs were already incorporated in another creative work matter?
2. How locked down the students' access to the content would be (i.e. is it inside of courseware, or would it be on the open web)
Access would be inside of password-protected courseware but would not otherwise be restricted: students can watch videos as many times as they want while they have access to the course. This isn't a case where the instructor would keep a private archive and play them once during a specific class, either in person or a synchronous online meeting.
3. How likely your school would be to support the teacher if there were a problem.
Unlikely but again this uncharted waters. I think it's important to note that the "push back, shut them down, and start monitoring" impulse that another poster assumed was located in IT actually originated in the library, at least org-chart wise.
Access would be inside of password-protected courseware but would not otherwise be restricted
The case that I linked to above, where UCLA came under fire for doing just this, was thrown out. THAT said, the specific case was about a situation in which the school already had the license rights to show the video and was extending the meaning of "classroom" to include the courseware. So it's not the same, but worth knowing. Your specific case is really uncharted waters lawsuit-wise to the best of my knowledge. Which may mean people are doing it all the time and no one's minded yet (which was why I asked about if people might be lawsuit-happy or not)
And really, the only reason people who make music know that their music is being used in an infringing way in a YouTube video us because YouTube has giant machines that do nothing but look for this stuff. That would not hold true in a courseware situation. If you're talking about personal videos that just happen to have some sort of music background, you're unlikely to have someone come after you. Unlikely does, as you know, not mean impossible.
So again, you need a legal opinion on this if you are concerned about it coming back to bite the library on the ass. That said, people need to make pragmatic decisions without the benefits of legal counsel all the time.
If it were me I would basically tell the teacher that they were responsible for infringement possibilities but that you (the library) could do the technical part of this. And I second what zachlipton says, the teacher making archival copies is a better plan than you guys streaming them via your streaming server. My personal interest in this sort of thing is that I think what your teacher wants to do SHOULD be easier to determine the legality of than it is. But that also they should be the one taking the heat if there is an issue because they want to do the weird thing and not just use things that are (always) freely available online.
posted by jessamyn at 8:11 AM on July 19, 2015 [1 favorite]
The case that I linked to above, where UCLA came under fire for doing just this, was thrown out. THAT said, the specific case was about a situation in which the school already had the license rights to show the video and was extending the meaning of "classroom" to include the courseware. So it's not the same, but worth knowing. Your specific case is really uncharted waters lawsuit-wise to the best of my knowledge. Which may mean people are doing it all the time and no one's minded yet (which was why I asked about if people might be lawsuit-happy or not)
And really, the only reason people who make music know that their music is being used in an infringing way in a YouTube video us because YouTube has giant machines that do nothing but look for this stuff. That would not hold true in a courseware situation. If you're talking about personal videos that just happen to have some sort of music background, you're unlikely to have someone come after you. Unlikely does, as you know, not mean impossible.
So again, you need a legal opinion on this if you are concerned about it coming back to bite the library on the ass. That said, people need to make pragmatic decisions without the benefits of legal counsel all the time.
If it were me I would basically tell the teacher that they were responsible for infringement possibilities but that you (the library) could do the technical part of this. And I second what zachlipton says, the teacher making archival copies is a better plan than you guys streaming them via your streaming server. My personal interest in this sort of thing is that I think what your teacher wants to do SHOULD be easier to determine the legality of than it is. But that also they should be the one taking the heat if there is an issue because they want to do the weird thing and not just use things that are (always) freely available online.
posted by jessamyn at 8:11 AM on July 19, 2015 [1 favorite]
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I suggest you kick it upstairs to the administrators and ask them whether you should help the faculty member or not. As the IT guy, you shouldn't be placed in this position, between the law and an end-user making shady demands.
the faculty member will decide that their use is fair use because it "feels fair" to use videos like this in a nonprofit educational setting.
It's not up to the decision of one faculty member. The school's administration is in charge and should make any decision with the advice of counsel.
posted by JimN2TAW at 12:58 PM on July 18, 2015 [7 favorites]