Fair Use and MOOCs

24 Feb

By Francesca Giannetti and David Hunter

As Fair Use Week begins, Francesca Giannetti and David Hunter considers the use of readily and legally available digital media for MOOCs.

Their experience stems from assisting a University of Texas professor with an online jazz appreciation course.

In helping University of Texas at Austin professor Jeff Hellmer identify and include audio and video recordings as he set up his jazz appreciation course, first offered January 2014, Francesca Giannetti and I considered numerous streaming or downloading possibilities. To rely on fair use in the context of an open educational resource, where the course audiovisuals would be posted on YouTube, was untested legal ground. In our view Professor Hellmer’s uses were fair, such as 7-10 seconds of a song, embedded in a lecture, to illustrate a point.

But a potential problem existed inasmuch as a challenge by a content owner would require removal of specific material, which would ruin the lecture, unless the institution was ready to be sued or file a declaratory judgment action against the accuser.  At that time we had not witnessed the example of Lawrence Lessig, who, when served in August 2013 with a take-down request by Liberation Music Pty Ltd., countered with a declaratory judgment request, and was successful. We knew that Sony BMG, for example, tolerates nothing as fair, even if we were to utilize DMCA Section 512’s provision to counterclaim fair use, with a full explanation. When the question becomes “is it worth engaging in a lawsuit to prove that 7 seconds of a song, used transformatively to illustrate a point is fair, or do we take down that audiovisual?”, most of us don’t enjoy the luxury of the resources to file the lawsuit.

During course development the MOOC platform’s technicians highlighted the audio and video that was available through YouTube, and agreed to make the links inactive after a relatively short period. Of course, the files were still available on YouTube itself after that time, so it remained possible for students to return to them directly.

This illustrates a balance of practicality and limitation of risk in the ever-changing and challenging environment of information provision of recorded sound and video. This provision remains the property of multi-national businesses that have very little interest in encouraging the educational use of their property, and even less in admitting that fair use principles apply to current modes of delivery.

In the music streaming group, we’ve got Spotify, Rhapsody, Deezer for our friends in Europe, Rdio, and Microsoft’s Xbox Music (and many, many others), Google’s Play Music All Access, and Apple’s iRadio. And don’t forget VEVO for music videos.

[ Full article available at The Chronicle of Higher Education: ]


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