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UCLA Video Streaming Damned, Dammed
UCLA Video Streaming Damned, Dammed
On Tuesday, January 26, Inside Higher Education reported that UCLA was "Hitting Pause on Class Videos". Under threat of a lawsuit from AIME, the Association for Information and Media Equipment, reporter Steve Kilowich said that UCLA would "stop allowing faculty members to post copyrighted videos on their course Web sites". The "disruptive effect" will impact "not just film classes, but courses in may other disciplines -- political science, foreign language, even the natural sciences."
AIME's president says that UCLA is only their first target: "We have leads in terms of other universities, and we do plan to investigate further."
Hearing echoes of P2P -- or perhaps Tony Soprano -- the campus IT community has been asking EDUCAUSE for advice and guidance. Among their concerns is that that risk-averse attorneys and other campus officials nationwide might quickly follow UCLA's lead and precipitously disable streaming course videos from remote access. As Jason Mittell, Associate Professor of Film & Media Culture at Middlebury College, noted in a comment to the IHE article, "The threat of lawsuit is powerful in creating chilling effects on educators and technologists."
Unfortunately, the law offers no clear answers here. The case relies on interpretations of Fair Use and the TEACH Act, each of which is intentionally ambiguous and largely untested in this context. Among others, questions arise as to what a "classroom" is in today's world of online instruction for all, and on the meaning of "face-to-face teaching situations". UCLA's official notice to faculty, sent last November 30 and reported in The Daily Bruin, says "Instructional Media and Collections Services exercised a good-faith belief that its uses were consistent with the exemptions for face-to-face teaching and fair use". The minutes of the November 5 meeting of the UCLA Faculty Committee on Educational Technology, at which news of the AIME complaint was first aired, notes that "There is currently no case law in this specific area to help guide the discussion."
So what to do? Start by reviewing Kevin Smith's excellent blog entry, which includes an illuminating back-and-forth with noted copyright expert Georgia Harper. The takeaway from that analysis and from the referenced comments by Cornell's Tracy Mitrano and others is that the jury is still out -- in fact, the case hasn't even been filed -- and that there's no imperative for pre-emptive action by any other college or university. Even UCLA's decision is reported as "temporary": "We don't want to litigate an issue that could potentially be resolved outside of the legal system."
We've also seen the other end of the reaction spectrum. While no one has yet (until now, I guess) referenced the 18th-century battle cry "Millions for defense but not one cent for tribute!" (we'll leave the quote's disputed origin for another day), the original article elicited this comment from "Prof Ed":
I wonder how many of the clients of the Association for Information and Media Equipment, and thus that firm, are making money from the work prepared by and with the involvement of university professors, a group that is shamefully exploited by publishers and media distributors. If we could discover the names of the client firms it might be worth the universities' extracting royalties back for use of their employees. Frankly, if I knew the firms I would boycott their products. In a time when higher education is on financial life support in this nation, the actions of this "Association" are inexcusable. If there is no "fair use" for education, then educators ought to refuse to provide expertise that produces the media that exploiters profit from.
Timothy Burke, Prof. of History at Swarthmore, urges us to "Stop playing defense":
Sitting back and waiting for a legal resolution of these issues (whether through settlement or litigation) is a repeated mistake on the part of academic institutions and their faculty.
There are two simple steps that should follow on the initiation of a legal action like this one.
First, academic institutions should stop using in any form the work of publisher(s) who are unwilling to allow that work to be used in a functional form within existing educational practice. Stop buying it, stop using it. This is especially crucial for publisher(s) whose only important marketplace is academic institutions. If they want to foul their own nest, let them. A seller who doesn't accomodate the needs of a buyer should find themselves without customers.
Second, as Prof Ed suggests, many publishers who sell to academic institutions also profit from the donated, uncompensated or poorly paid labor of academic experts. In effect, academic institutions subsidize the research or intellectual work of their own faculties, who then often give that work away to publishers, who then resell it back to the institutions at a high cost. This is a crazy, backward kind of economy, and actively inhibits what most academics are looking for out of dissemination and publication, namely, the accumulation of reputation capital rather than direct financial benefit. Faculty have to be prepared to walk away from any publisher seeking their participation in preparing educational materials or publication of research who is going to inhibit the use of those materials by other academics or is going to be constantly seeking new rents from those materials through legal or other means. We owe it to each other and to our employers. If faculty won't voluntarily insist on such preconditions, then administrations should be prepared to offer very strong incentives for preferring open-source, open-access models for participating in the creation of educational materials or disseminating research results--and possibly strong sanctions against doing otherwise.
As we all know, higher education is an opinion-rich environment. We'll report on developments.