December 20, 2014

Crime and Punishment

By Carrie Russell

Are copyright violators ever penalized?

Is there a Web site that keeps track of copyright infringers and fines? Some of my colleagues don’t believe that copyright violators are ever penalized.
Cindy Rowe, media center associate, Louisa-Muscatine Elementary School, Muscatine, IA

To the best of my knowledge, there aren’t any schools, libraries, teachers, or librarians that have been sued for copyright infringement. I know it sounds astounding, but other than the example cited below, I don’t know of any library- or school-related court cases. (If you’ve heard of any, please let me know.)

On the other hand, I’ve heard that schools and libraries have received "cease and desist" letters from copyright holders who have threatened litigation. Schools and libraries can avoid litigation by settling out of court, but since there’s no public record of those settlements, I don’t have any idea how often that occurs. The Electronic Frontier Foundation maintains a Web site (www.chillingeffects.org) that posts "cease and desist" letters, but most of those are copyright violations that involve file sharing, computer software, and reverse engineering.

The only court case that I know of – Addison-Wesley Publishing Company v. New York University (NYU) – was ultimately settled out of court in 1983. Nine faculty members and some of the university’s copy shops were named in this case, which involved questionable photocopying practices. As part of the settlement, NYU agreed to incorporate a modified version of the Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions with Respect to Books and Periodicals into their institutional copyright policy. Many of you will recall that publishers, authors, and educators drafted the Classroom Guidelines back in 1976 at the suggestion of Congress. The guidelines were published in the legislative history of the Copyright Act of 1976, but were never included in the law.

Since NYU settled out of court, we’ll never know what a court of law would have ruled. We also don’t know if a court would even consider the Classroom Guidelines in its ruling, since the guidelines are not legally binding. Remember, when courts make their rulings, they look at the copyright law and analyze the four factors of fair use.

I can speculate why more schools and libraries haven’t been sued for copyright infringement. I’d like to think that it’s because, in general, they do a good job of following the law. Of course, none of this means that teachers should ignore the law. After all, nobody is protected from litigation.

As part of our school’s newscast, students review current films, accompanied by brief clips. Is it legal to show the clips? By the way, the newscast is broadcast only within our building.
Jackie Peabody, librarian, Phoenixville Area High School, Phoenixville, PA

I can’t point to a specific area of the copyright law that addresses this issue. The use of clips is not for true curriculum purposes in this instance, so classroom exemptions don’t apply. One could still argue that the use of clips is fair, since it’s in a nonprofit context, only brief portions of the works are shown, and there is no negative effect on the films’ markets (assuming the videos or DVDs have been lawfully obtained). In addition, Section 107 of the copyright law specifically mentions criticism and comment as an exemplar of fair use. The fair-use argument is also strengthened by the fact that only those within the school building can view the newscast.

I view this particular activity as a fair use, but you and your school must ultimately make the call. Unfortunately, many copyright concerns require a case-by-case analysis, which can be time-consuming. It may be helpful, at times, to consult a copyright attorney. In regard to media copyright issues, some educators have found it helpful to consult the multimedia guidelines proposed by the Consortium of College and University Media Centers. However, those guidelines have never been approved by any library association or many educational organizations and, of course, are not part of the copyright law.


Author Information
Carrie Russell is the American Library Association’s copyright specialist.

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