A Page to Ask Questions and Get Answers

After you join our online community, you can use the DISCUSSION tab to ask your questions here we will discuss the answers on this page:

QUESTION: A school bought a very expensive (~$2000) <sic> music player that comes with DRM-protected audio music files on it that are used to help educate children and adults with disabilities (and no other content). The player no longer works properly; it hangs and the rechargeable battery is dead and not replaceable. Any thoughts on whether its legal to circumvent the DRM (via the analog hole) in order for a student to play the files on a different media player? Similar mp3 players without the protected media retail for as little as $20. As I understand it, if the use is not infringing, it doesn't matter whether the use involved DRM circumvention. Having perused Circular 21 and reviewed §108( c), I see the use as not infringing because the use is educational, and by a single student at a time, of a replacement of a damaged copy, and a replacement cannot be obtained at a fair price, and so the use is therefore legal.
(The DMCA's § 1201( c) states that it does not change the underlying substantive copyright infringement rights, remedies, or defenses.)

--Renee Hobbs

QUESTION: In our department, teachers typically teach similar units at the same time. Because of this, certain VHS videos from our Library collection are in high demand and oftentimes teachers want to use the videos at the same time. Many of these videos are out of print or not available for purchase anymore even though we have the budget to spend on multiple copies. What are the legalities of making a digital copy of a VHS tape?

ANSWER: This is a question that does not relate to fair use. It's a question about preservation and archiving of copyrighted materials. That means it applies to Section 108 of the Copyright Law of 1976. Librarians can make a digital copy of a VHS tape for archival and educational purposes. For more information, check out the excellent materials available at the Copyright Advisory Network. Here's a page with specific details about making a digital copy of a VHS tape for your library.
--Renee Hobbs

QUESTION: I know a lot about Creative Commons-licensed images, but what about the use of copyrighted images found via Google image search? Is transformative use and attribution enough to qualify for fair use? Here's an example: the LIFE magazine photo archive, hosted by Google.

ANSWER: It depends on how you use them. You can use copyrighted images you find through Google images if your use of them is transformative. Ask yourself:
  1. Does your use “transform” the material taken from the copyrighted work by using it for a different purpose than that of the original, or did it just repeat the work for the same intent and value as the original?
  2. Is your use of the image appropriate in kind and amount, considering the nature of the copyrighted work and of the use?
--Renee Hobbs

QUESTION: When viewing the "3 videos" demonstrating case studies at the elementary, secondary, and post-secondary levels, can we assume that what the teachers and their students did with copyrighted materials all constituted fair use? Or are these meant to depict "gray areas"?

ANSWER: Each of the teachers in the video case studies have their own reasons for believing that their use of copyrighted works was a fair use. Remember that the process of making a judgment about a fair use of copyrighted material is a judgment.

Each educator or student is responsible for making a fair use decision for themselves. It's not appropriate to rely on lawyers or librarians to do our thinking for us. Kenneth Crews of the Copyright Office at Columbia University says that each fair use determination is about an individual's comfort zone. As Carrie Russell of the American Library Association points out in her book, Complete Copyright, "Sometimes a situation clearly is fair use. More often than not, however, your assessment may seem a bit ambiguous. This is the nature of fair use.... As you practice fair use more often, your confidence will grow. Remember to be consistent and think critically."

The trick here is to not rely on charts or lists which provide neither a "safe harbor" nor an illusion of "certainty," but to think about the fundamental question that underlies the fair use of copyrighted works: transformativeness. Did your use of the copyrighted work re-purpose or add value? If you have good reasons behind you, you meet the "reasonableness standard" that protects educators and librarians who "reasonably believed and had reasonable grounds for believing" that his or her use was a fair use.
--Renee Hobbs

QUESTION: My students and I created an online collaborative (shared) presentation using images found via Google image search + soundtrack from PRI's "This American Life". It marries the slides to a podcast downloaded from the show. 43 students designed 43 individual slides and the classroom teacher synced the slides to the audio. You can see an example at (private address). I requested permission from NPR and This American Life to use this segment. They liked the project, but refused my request, based on the fact that the audio file was hosted on an external server. When I pressed them further re: using *their* servers, they ignored my correspondence. Therefore, I have it hosted privately at the link above. Can I embed it in my blog?

ANSWER: What a creative way to incorporate media literacy into the social studies curriculum! As I look at the piece, it seems that your students have demonstrated their understanding of the content by transforming the "This American Life" segment into a new work through their imaginative multimedia slides. The educational value of this assignment is based, in fact, on the careful relationship between the audio and the images. I'm assuming the audio file that corresponds to the slides is hosted on YOUR server. NPR doesn't want lots of copies of their content floating around, and I'm sure you see their point. However, in this case, where you have asked permission and been refused, your decision about distribution rests completely on your comfort level about whether this use indeed a fair use. If you post it on your blog, and then get a request to take down, you will have another opportunity to make this decision for real. But your blog is a place where you share your innovative ideas about integrating media and technology into your social studies curriculum with other educators --- and that's an important way our community works. This student example really helps educators understand, more than a paper or presentation ever could, about the nature of the assignment and the overall learning experience. I think it's a great example of how, sometimes, we use a whole piece of media in our work with students--- and for the specific learning objective, we need to use the whole piece.
--Renee Hobbs

QUESTION: Fair Use? Check out this great New York Times article about the artist's claim of fair use. See especially the lively comments from readers who discuss whether or not this is an example of fair use. If you think it's fair use, what are your reasons? If you think it's not a fair use, what are your reasons?
Is this an example of transformative use?
Is this an example of transformative use?

I found a similar article in a San Francisco Paper...that I blogged about HERE
So, tell us what you think...use this reasoning form to work through whether or not you think this is a fair use of copyrighted images.

If you would like to use this form in your work you can click here. If you have a google account, you can sign in and copy into your google account
For more information email kristin.hokanson (at) gmail.com