Streaming and the Law
The Copyright Act at §110(1) addresses the performance of films in a face to face classroom. The TEACH Act amendment to the Copyright Act, codified at § 110(2), permits the performance of a reasonable and limited portion of films in an online classroom. And then there is still the application of fair use in the event the requirements of TEACH are not met. However, the DMCA prohibits the circumvention of technological prevention measures (TPM) on DVDs and other media for the purpose of copying and distributing their content. Thus, what may an educator do? Digitizing and streaming an entire DVD is likely not permissible. Recently, an exemption under the DMCA was expanded to permit faculty of any discipline (as opposed to the previous extension to only film studies professors) to circumvent TPM in order to make clips of films for use in teaching and research. Under TEACH, there is the express limitation on quantity, and there is doubt as to whether an entire film constitutes a reasonable and limited portion. In the Congressional Research Report prepared in connection with TEACH, it is stated:
Although what constitutes a “reasonable and limited portion” of a work is not defined in the statute, the legislative history of the Act suggests that determining what amount is permissible should take into account the nature of the market for that type of work and the instructional purposes of the performance. For example, the exhibition of an entire film may possibly constitute a “reasonable and limited” demonstration if the film’s entire viewing is exceedingly relevant toward achieving a educational goal; however, the likelihood of an entire film portrayal being “reasonable and limited” may be rare. [emphasis added]
A fair use argument for streaming an entire film may be made. Factors two and three possibly weigh against fair use given the creative nature of film making and the extensive quantity used. If the purpose of the use is for other than its original intended purposes (e.g. entertainment), the use arguably is transformative, which would weigh in favor of fair use under factor one. Whether there is a substantial effect on the market under factor four depends on a variety of factors, including the availability of the film in streaming format and whether it is marketed for educational use.
Resources for Free and Legal Streaming Media
There are many sources for streaming video content available that students can access on their own. For instance, the subscription service Netflix offers thousands of documentaries and mainstream film titles on a streaming basis for an affordable monthly fee that most students likely already pay. Additionally, sites like Amazon and iTunes offer inexpensive streaming video rental. Further, many commercial distributors of films offer licensing of streaming content, although the cost varies across vendors and is dependent upon a variety of factors, such as class size.
There are also many online sources for free and legal streaming content: