When digital video first streamed into schools, many predicted it would one day revolutionize teaching and learning. But the threat of lawsuits and new copy-protection technologies are keeping educators from exercising their legal right to use portions of video and other digital media in the classroom, warned scholars and legal experts at a June 18 summit.

“Knowledge Held Hostage? Scholarly Versus Corporate Rights in the Digital World,” sponsored by the University of Pennsylvania’s Annenberg School for Communication, sought to find a place for digital media under the provision of “fair use”–a hotly debated exemption in U.S. copyright law that permits researchers and scholars to reproduce selected materials for educational purposes without the permission of the copyright holder.

“Teachers and scholars are losing ground” in the fight to use digital media for educational or research purposes, American Library Association (ALA) copyright specialist Carrie Russell told eSchool News. Although educators, for the most part, are confident in their abilities to reproduce printed texts without fear of legal reproach, she said, they are more cautious when it comes to the use of digital materials, especially music and video clips, for fear that the slightest misstep might land them in court.

“With digital [media], people feel like they need to get permission,” she said. What they often fail to realize is that the fair-use umbrella extends the same amount of protection to digital materials as it does to books and printed texts. “The law is technologically neutral,” she said.

But, according to summit participants, it’s more complicated than that.

Educators and legal experts contend new technologies and lawsuits are creating uncertainty about what is exempt under the law. Despite what many believe is a legal right to make fair use of copyrighted material, the threat of litigation leveled by copyright owners and corporate heavyweights–led by the recording and motion picture industries–has forced university lawyers to weigh the educational benefits of the project in question with the potential long-term costs of a courtroom skirmish.

And even if institutions were in a position to stand up for scholars’ rights, new anti-copying technologies ushered in under the 1998 Digital Millennium Copyright Act (DMCA) would preclude members of the academic community from taking advantage of favorable rulings handed down by the courts, said Peter Jaszi, a professor at the Washington College of Law at American University in Washington, D.C., and an expert on copyright infringement.

The result: “Aggressive copyright laws, often tied to companies’ desire to protect intellectual property, are making the future of intellectual property precarious,” said conference organizer Joe Turow, a professor at the Annenberg School for Communication. “Horror stories abound about researchers unable to create innovative work under the idea of fair use.”

Turow encountered resistance in his own work when he was commissioned by the Robert Wood Johnson Foundation to create an audio-visual collage of scenes from popular medical television dramas to be burned onto CD-ROM and distributed to a group of first-year medical students.

After securing permission from Warner Bros. to use a one-minute clip from the television series “ER” and another clip from a 1940 Dr. Kildare movie, Turow hit a snag when the remaining production companies–including the Walt Disney Co. and Viacom Inc.–insisted that the CD-ROM, although strictly for educational purposes, was not covered by fair use.

Fearing a lawsuit, the foundation forked over $17,000 for approximately three minutes of video to secure rights to the clips. Six months later, Turow had his video. But it would never have been possible without the backing of the foundation, he said. Had he been acting solely as a representative of an academic institution, it isn’t likely the school would have anted up the money.

“I had the money from the foundation to pay for the clips, but many other academics don’t have the resources and aren’t able to carry out projects like this,” Turow said.

It isn’t just professors who have been hamstrung. Students, too, have fallen victim to schools’ reluctance to get tangled up in fair-use disputes.

When Swarthmore College sophomores Nelson Pavlosky and Luke Smith stumbled across an internal company eMail message detailing potential technological glitches found in a prominent line of electronic voting machines, the pair published their findings on the internet in hopes of spreading public awareness of the problem.

But when the voting machine manufacturer, Diebold Inc., caught wind of the memo, the company quickly sent cease-and-desist letters to hundreds of web sites publishing the letters, claiming the information was proprietary and that sharing it violated the DMCA.

Rather than fight Diebold in court, administrators at Swarthmore College–where the main site was hosted–opted to take down the web page, essentially dismantling a body of work that the students considered wholly educational and for the benefit of society.

Pavlosky said the loss of the web site also forced the students to scale back their role in a national summit on voting rights and precluded them from engaging in valuable scholarly research. “Unfortunately, when Swarthmore College received the takedown ‘requests’ from Diebold, it did not defend our activities as vital scholarly work,” he wrote in a response to moderator’s questions in advance of the conference. “Instead, Swarthmore folded in the face of Diebold’s threats and took down our web page, which was hosting the memos.”

Attendees said the problems faced by Pavlosky, Turow, and others are indicative of how corporations have sought to manipulate the law and place a “chilling effect” on the fair-use doctrine. On the other hand, representatives from the music, movie, and other industries maintain the ease with which digital content can be copied and distributed necessitates the DMCA and other copy-protection measures.

New technologies continue to emerge that can copy and shuttle digital content across the web, widening the rift between copyright holders and scholars. As a result, summit participants proposed several steps that educators and scholars can take to preserve their freedoms under the law.

Chief among their ideas is the establishment of a large-scale awareness campaign to specify what kinds of uses are–and are not–permitted without consent of the copyright holder. One way to avoid the legal pitfalls associated with copyright infringement, according to Polk Wagner, assistant professor of law at the University of Pennsylvania, is to “shed some light on the gray areas” of the law.

Throughout the day-long event, participants returned time and again to the idea of awareness and education. Many suggested the creation of fair-use “best practices” distributed to students and faculty at the beginning of each school year to lessen the confusion.

Others called for an overhaul of the DMCA by way of the Digital Media Consumer Rights Act (H.R. 107), which seeks to roll back some of the more controversial provisions of DMCA, including the portion that enables corporations to build anti-copying technologies into DVDs and other media. (See “Congress eyes ‘fair-use’ access to DVDs,” http://www.eschoolnews.com/news/showStory.cfm?ArticleID=5065.)

In his response to a moderator’s questions before the conference, Turow offered two potential solutions: (1) establish a mandatory licensing regime for scholars, in which academics who waive their right to fair use pay a lesser, one-time fee to the rights holder in return for use of the material, and (2) create a sort of “fair-use protection organization,” in which academics would pay a nominal fee to vet their ideas with attorneys to determine whether a project falls under fair use. If the organization were to approve the project, it would then agree to represent the scholar if he or she got sued for alleged copyright infringement.

While awaiting implementation of such solutions, educators need to advocate on Capitol Hill for the protection of fair-use rights, participants agreed. Institutions also should educate their faculty, students, and general counsel about the importance of fair use and its limitations under current copyright legislation, attendees said.

Pro-bono legal counseling is another option. Without creating any new institutions or laws, Jaszi suggested, educators can seek out high-quality legal advice from sources whose level of expertise extends beyond the realm of their universities’ general counsels.

Even amid a far-reaching cloud of fear and confusion under the law, options do exist, he said. Scholars needn’t take these injustices lying down.

“There is an incredible amount of intellectual firepower here,” said Turow in a statement. “Academics don’t want to be stuck using only the printed page. Our students and our scholarship deserve the best we can think and do.”

See these related links:

Summit web site

Annenberg School for Communication