EDUCATORS, TECHNOLOGY, AND THE LAW

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COMMON QUESTIONS
DIRECT ANSWERS

Software
Videos
The Internet
About Infringements

Plus
 Useful Web Sites

  Compiled By
Linda K. Enghagen, J.D


Your Responsibilities Using These Materials

This information is designed to be accurate. Nevertheless, the law is subject to change and varying interpretations. Consequently, the distribution of these materials does not constitute the rendering of legal advice. If you want a legal opinion, consult a qualified attorney. It is your responsibility to determine whether and how the information contained herein applies to your specific and unique circumstances.


ęCopyright 1999 Sterling Publications. All rights reserved. No part of this publication may be reproduced without the express written permission of its author. Reprinted on this page with permission of Sterling Publications. Copies of this publication may be purchased at http://site.yahoo.com/sterlingpubs.


SOFTWARE

In its simplest terms, what are the basic rules governing the copying of software for educational purposes?
There are two basic rules. First, when you purchase software, you may make one copy for back-up purposes. Second, you are permitted to do what the licensing agreement and copyright law’s fair use rules allow.

As long as I’m a teacher using the software for educational purposes, doesn’t fair use permit me to copy virtually anything?
No. The fair use rules of copyright law permit copyrighted works to be used for educational and research purposes without the permission of or payment to the owners. However, for fair use to apply, the use must be a permitted use (such as for educational purposes) and it must not significantly diminish the commercial value of the work. Copying software detracts from its commercial value.

So, what about licensing agreements? What do they allow?
Essentially, a licensing agreement is a contract that spells out what the owner of the software is selling. And, you can buy only what the seller is offering for sale. (It’s like renting a house. You can’t make the owner sell you the house. But, renting it gives you certain rights to use it.) So, the short answer is that you can do whatever the licensing agreement allows. The terms of licensing agreements vary from company to company and depend on what you bought. Did you pay for one copy to be used on one computer? Or, did you buy a site license, network license, lab pack, or some other package which permits installation and use on more than one computer?

What if I’m using software in my courses and need it on multiple computers for my students?
Most software publishers today sell licenses that permit one copy of a software program to be installed on multiple computers and/or on networks. 

I often work at home. Can I install the same software on my home computer and my school computer so I can use it in both places?
Only if the licensing agreement permits it to be installed on two different computers. Otherwise, you need to purchase two copies or remove it from one computer before installing and using it on the other.

I borrow and lend books. Why can’t I borrow or lend software?
As long as the software is installed on your computer, lending your disk to someone else to install it on another computer is the same as lending a book to someone while keeping a photocopy of the book. You can sell or give away software after it is removed from your computer. However, some licensing agreements prohibit this once a program upgrade is available. Read the licensing agreement for the upgrade to determine whether you are permitted to sell or give away the old version.

What about shareware and freeware?
Shareware and freeware are like commercial software in that they are protected by copyright law and governed by the terms of their licensing agreements. Typically, shareware permits potential users to test the software before paying for it. Freeware doesn’t require payment to anyone and in many cases the licensing agreement permits users to modify and distribute the software as long as no fee is charged subsequent users. To learn the specific terms for a particular piece of software, read the licensing agreement.

Do schools and colleges really get in trouble for software infringement?
Yes. In 1998, the Los Angeles School District entered into a tentative settlement with software publishers reported to be in the range of $300,000. Other 1998 settlements involved a Florida junior college ($135,000) and a Pennsylvania technical institute ($102,500). While there are other cases that settled under terms which didn’t require any cash payments, it is not difficult to imagine the damage inflicted to many professional reputations as a result of these incidents. 


VIDEOS

Can I show videos in my classes without needing to obtain permission from the copyright holder?
Yes, as long as two criteria are met. First, the video must have been lawfully acquired. Second, the video must be shown for educational purposes (not for recreational or entertainment purposes).

So, I can’t show a video to my class as a reward for a job well done?
If you want to show your class a video for recreational or entertainment purposes, you must obtain the permission of the copyright owner. If the video is for legitimate educational purposes, you don’t need permission, you simply need a legal copy of the video.

Can I rent an educational video from my local video store and show that in my class?
Yes, renting a video is one way to lawfully acquire a copy. 

But what about the “for private home use only” statement displayed with the opening credits on many rental videos?
Such statements do not prohibit teachers from using videos in class for legitimate educational purposes. Under the general rules of copyright law, copyright owners have the exclusive right to publicly perform and display their works. However, these rights are exclusive only—they are not absolute. Congress specifically created an exception giving teachers the right to use lawfully acquired videos (and other audiovisual works) for educational purposes. That is, teachers can use such videos and other audiovisual works for educational purposes without obtaining permission from the copyright owner. Most experts agree that the “for private home use only” statements do not prevent teachers from exercising their rights under the educational exception created by Congress. In contrast, a copyright owner’s rights are violated if, for example, a performance or display is open to the general public and an admission fee is charged.  

Can I borrow an educational video from a friend or from the library and show it in my class?
Yes, as long as the video is a legal copy and not a bootleg copy.

Can I purchase a copy of an educational video and show it in my class?
Yes, as long as the video is a legal copy and not a bootleg copy.

Can I videotape an educational program from TV and show it in my class?
Within certain limitations, yes. A Congressional committee developed guidelines to address the extent to which educators are permitted to copy television programs. In short, teachers may copy programs for “relevant teaching activities.” However, the copy must be used no later than ten school days after it was copied and the copy must be destroyed or erased no later than forty-five days after it was copied. Copied programs may be shown once in each class and may be repeated a second time to reinforce or clarify relevant points. In addition, the copy must contain the program’s copyright notice.

What else do the guidelines say?
The guidelines offer further detail. The entire text is reproduced on the following page.

Have any schools been sued for illegally copying programs off television?
Yes. In a New York case, the court found the copying to be extensive and some copies were kept for up to ten years. This violated the rules of copyright law and fair use. Encyclopedia Britannica v. Crooks, 558 F.Supp. (WDNY 1983).

So, as long as I follow the guidelines I can copy any television program?
No. Fair use doesn’t permit copying that undermines the market value of protected works. As the Crooks decision pointed out, if a program is available through a short term rental, even copying within the limits of the guidelines is not permitted.

Guidelines For Off-Air Recording Of Broadcast Programming For Educational Purposes

1.  The guidelines were developed to apply only to off-air recording by non-profit educational institutions.
2.  A broadcast program may be recorded off-air simultaneously with broadcast transmission (including simultaneous cable transmission) and retained by a non-profit educational institution for a period not to exceed the first 45 consecutive calendar days after date of recording. Upon conclusion of such retention period, all off-air recordings must be erased or destroyed immediately. “Broadcast programs” are television programs transmitted by television stations for reception by the general public without charge.
3.  Off-air recordings may be used once by individual teachers in the course of relevant teaching activities, and repeated once only when instructional reinforcement is necessary, in classrooms and similar places devoted to instruction within a single building, cluster or campus, as well as in the home of students receiving formalized home instruction during the first 10 consecutive school days in the 45 day calendar day retention period. “School days” are school session days—not counting weekends, holidays, vacations, examination periods, or other scheduled interruptions—within the 45 calendar day retention period.
4.  Off-air recordings may be made only at the request of and used by individual teachers, and may not be regularly recorded in anticipation of requests. No broadcast program may be recorded off-air more than once at the request of the same teacher, regardless of the number of times the program may be broadcast.
5.  A limited number of copies may be reproduced from each off-air recording to meet the legitimate needs of teachers under these guidelines. Each additional copy shall be subject to all provisions governing the original recording.
6.  After the first 10 consecutive school days, off-air recordings may be used up to the end of the 45 calendar day retention period only for teacher evaluation purposes, i.e. to determine whether or not to include the broadcast program in the teaching curriculum, and may not be used in the recording institution for student exhibition or any other non-evaluation purpose without authorization.
7.  Off-air recordings need not be used in their entirety, but the recorded programs may not be altered from their original content. Off-air recordings may not be physically or electronically combined or merged to constitute teaching anthologies or compilations.
8.  All copies of off-air recordings must include the copyright notice on the broadcast program as recorded.
9.  Educational institutions are expected to establish appropriate control procedures to maintain the integrity of these guidelines.


THE INTERNET

Does copyright law apply to the Internet?
Yes. Copyright law applies to the expression of ideas (not to the ideas themselves). Materials posted to the Internet qualify as the expression of ideas.

What if the materials I find on the Internet don’t have a copyright notice?  Doesn’t that mean I can use them because they’re not protected by copyright law?
Under old law, a copyright notice was required for copyright protection. After March 1, 1989, this is no longer true. Whether on the Internet or elsewhere, copyright protection applies even though no notice is placed on the materials. Today, the correct assumption to make is that materials are protected unless there is a statement explicitly giving up copyright protection.

Are all written materials covered by copyright law?
No. Facts and forms are not eligible for copyright protection. And, materials created by the federal government are not eligible for copyright protection. Consequently, anyone can use them for any purpose without permission. (Note: Materials created by state governments are sometimes protected and sometimes not. You must check them for copyright information before using them.)

So, I can’t use materials from the Internet unless I get permission from the copyright holder?
No. The fair use exceptions to copyright law apply to the Internet. If fair use applies, you don’t need permission to use the materials.

How do fair use rules apply to the Internet?
The same way they apply to other materials. For example, to the extent fair use permits you to use an article found in a journal, you can use an article found on the Internet. For more detail, take a look at The Copyright Crash Course listed in Useful Web Sites.

Can I post student work to a class web site?
Yes. But, you should first obtain permission. For K-12, you should get permission from your students’ parent(s) or guardian(s). For college students, you can get permission from them directly. Check to see if your school has a standard form for you to use.

What risks do I run by posting student work to a web site without first obtaining permission?
Some of the risks are legal and others are not. The legal risks include copyright infringement (yes, students own the copyright to the works they create) and violation of federal privacy laws (the Family Educational Rights and Privacy Act). Other risks include the possibility of upset or irate parents, guardians, students, and administrators or allegations of plagiarism (most likely on a college level).


ABOUT INFRINGEMENTS

What is copyright infringement?
Copyright infringement occurs when you improperly use a copyrighted work. For example, you needed permission and didn’t get it or your use exceeded the limits of fair use.

So I can be sued for copyright infringement?
Yes. However, it’s more likely that your school or university will be sued. In addition, even if you are sued personally, many employers will reimburse you as long as the infringement was work-related and you complied with your institution’s policies. 

Is there a statute of limitations on copyright infringement?
Yes—3 years for civil violations of copyright law and 5 years for criminal violations.

So, what do I do if I’ve violated copyright law?
First, stop doing the things that violate copyright law. Second, if you want to continue to use the materials, obtain the appropriate permission or acquire a lawful copy of the software or video.

How can I find out if someone is infringing my copyright?
If it’s not on the Internet, it’s not easy. You may stumble across it or someone may report it to you. On the Internet, you can do a search of your name or a string of words unique to your work.


USEFUL WEB SITES

AT&T Learning Network
A good source of links to numerous sites offering guidelines for computer use policies. From the homepage, go to the Resources for Educators and click on Acceptable Use Policies.
www.att.com/learningnetwork/

Copyright & Fair Use
Stanford University’s site provides comprehensive information on current developments in the law.
http://fairuse.stanford.edu

Illustrative Scenarios
Provided by the Consortium for Educational Technology in University Systems (CETUS), this site analyzes various scenarios under fair use rules. The scenarios involve electronic reserves, multimedia productions, the Internet, slide collections, and adapting material for disabled students.
http://www.cetus.org/fair6.html

Obtaining Permissions
This CETUS site offers basic information about obtaining permission to use copyrighted work when the fair use rules don’t apply. It includes a sample letter for such requests.
http://www.cetus.org/fair7.html

The Copyright Crash Course
This site provides a great overview with a minimum of legal jargon. From the homepage,click on Copyright.
www.utsystem.edu/ogc/intellectualproperty

10 Big Myths About Copyright Explained
Directed at Internet issues, this article explains common misconceptions. From the homepage, click on Copyright Myths.
http://www.templetons.com/brad/


ABOUT THE AUTHOR

Linda K. Enghagen is an attorney and Associate Professor at the University of Massachusetts at Amherst.  Professor Enghagen began teaching intellectual property as part of a distance education program over fifteen years ago. This interest in intellectual property issues grew to include the myriad of related concerns confronting educators in both traditional and distance education classrooms. Professor Enghagen offers workshops to both K-12 and higher education audiences on copyright and fair use law for educators. In addition, her   publications include two books Fair Use Guidelines for Educators and Technology and Higher Education (edited), and an article entitled Copyright Law and Fair Use:  Why Ignorance Is Not Bliss—A Case For Using Guidelines.

The author can be reached at:

Linda K. Enghagen, J.D.
Flint Lab 203D
University of Massachusetts Amherst, MA  01003
413-545-4044 lke@hrta.umass.edu

Sterling Publications
P.O. Box 828
Northampton, MA  01061-0828
sterlingpubs@yahoo.com



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