February 1, 2005

School Screening of Eyes C&D’d?

Downhill Battle reports that series producer Blackside has threatened to sue a Vienna, VA schoolteacher planning to screen Eyes on the Prize as part of the Eyes on the Screen event. Michael Madison, asking, “Does anyone actually read the Copyright Act?”, points out that some public performances of audiovisual works by schoolteachers are explicitly allowed without a license. 17 U.S.C. § 110(1) says that the following is not an infringement of copyright:

performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made

In this case, the teacher presumably planned to use a copy of Eyes on the Prize downloaded via Downhill Battle’s BitTorrent links. As the law stands, that’s an infringing copy, no matter what you or I or Downhill Battle think the law ought to be. The section 110 safe harbor for classroom showings only applies to legal copies; this was a prospective performance using an illegal copy, and simply didn’t fit into the exception.

There’s some question whether, in this case, the teacher had “reason to believe” her copy was infringing. Downhill Battle told him that they thought it was fair use, even though it’s not. After Blackside told the teacher the copy was infringing, this gave him reason to believe it’s an infringing copy, so the performance went from privileged to infringing.

Plus, there’s a substantial question as to whether a showing “for students and community members” is a showing “in the course of face-to-face teaching activities”. It seems some actual teaching would have to go on — which may have been the plan, we don’t know.

With due respect to Professor Madison, I don’t think the section 110 exception is likely to apply.

UPDATE: Nicholas Reville of Downhill Battle, below, notes that the school was using a lawfully made VHS copy. Obviously, this makes it much more likely that the section 110 exception applies. There’s still some question about whether the showing is a “face-to-face teaching activit[y]“, but that’s probably pretty easily surmounted; the teacher just has to make sure some face-to-face teaching goes on, most likely in the form of a post-film discussion.

Disclaimer Haiku:
West wind seems to say,
"This is not legal advice;
I'm not your lawyer."

(And if you're a client with whom I have a preexisting attorney-client relationship, this still isn't legal advice.)

In case you're wondering, this blog is also not intended as advertising, as a representation of anything but my personal opinion, or as an offer of representation.

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