I feel like it’s Groundhog Day around this time of year. As the school year concludes, testing is the rule of the day in our schools. It seems that, if you’re not testing, you’re… well, I hate to overgeneralize, but I sense that quite a few movies are being watched. I heard more than one school district mention a noticeable amount of Netflix usage at our recent CIO meeting. Let’s just dive in and address some of the questions I’ve had and where those have led me as we go “through the wormhole” of fair use and copyright as it pertains to movies in the K-12 environment.
Is it legal to use my Netflix account to show movies to my class? In my opinion, no. (Side note: any question to me beginning with ‘is it legal’ should be answered with something that starts with ‘in my opinion.’ I’m not a lawyer.) Why? Let’s look at the Netflix Terms of Use… specifically, two parts of that agreement:
6b. The Netflix service, and any content viewed through our service, are for your personal and non-commercial use only…
6e. …You agree not to archive, download (other than through caching necessary for personal use), reproduce, distribute, modify, display, perform, publish, license, create derivative works from, offer for sale, or use (except as explicitly authorized in these Terms of Use) content and information contained on or obtained from or through the Netflix service without express written permission from Netflix or its licensors…
I don’t know how else to put it. Regardless of how you feel about “fair use” in the classroom, the Netflix TOU seems to forbid any use of that personal service in the classroom.
In case you’ve heard of libraries using Netflix accounts, let’s chase that rabbit for a moment. Several years ago, a few blog entries (one of them linked here) generated quite a lot of buzz when describing how the library was loaning out Netflix-rented DVDs to library patrons. The author responded to several comments by pointing out that no one from Netflix ever expressed a problem with this. Of course, the DVD distribution model is a bit dated, but the concept of ‘commercial use’ in their TOU would likely still apply. Netflix acknowledges that they offer no “institutional accounts” and that this is a service for personal use. I don’t believe you’ll find instances where libraries have been called to task for this but, if pressed, it would be tough to argue that this isn’t some sort of (non-profit) commercial use.
The school district’s concern about Netflix traffic isn’t solely about the legalities of the matter. The sheer amount of traffic can be problematic. This report notes that Netflix + YouTube traffic equates to nearly half of all peak-hours downstream traffic (with Netflix alone at over 31%!!!) Even if an administrator were OK with usage of such streaming traffic in the school environment, the bandwidth implications might lead to the need to block or throttle this traffic.
So, with Netflix being thoroughly discussed, let’s move to the more general question about showing movies during the school day. I’m pretty sure I watched a few movies back in the stone age when I was in school. I talked to a CIO yesterday that mentioned her daughter watching “Frozen” this week. Is that OK? Is that legal? It’s in the classroom, so it’s fair use… right?
The correct answer is probably “it depends,” though most of what has been described to me would fall into the “NO” category. I can provide all sorts of useful links on fair use and copyright rules, but I prefer to stick to the best source I can find, which is the U.S. Copyright Office site. Specifically:
Can a school show a movie without obtaining permission from the copyright owner?
If the movie is for entertainment purposes, you need to get a clearance or license for its performance.
It is not necessary to obtain permission if you show the movie in the course of “face-to-face teaching activities” in a nonprofit educational institution, in a classroom or similar place devoted to instruction, if the copy of the movie being performed is a lawful copy. 17 U.S.C. § 110(1). This exemption encompasses instructional activities relating to a wide variety of subjects, but it does not include performances for recreation or entertainment purposes , even if there is cultural value or intellectual appeal.
So there it is. To show a movie (or a portion of a movie) in the school setting, it is supposed to be for teaching activities (unless you have a clearance or license). Going to Redbox, by the way, isn’t the type of ‘clearance or license’ referenced. Just because you legally rent a movie, that doesn’t mean you obtained a license to show it in a classroom setting.
I know this post should have a wet blanket included. I’m not against Netflix or a good movie and, in proper context, I absolutely believe that certain videos or clips from movies can be a great resource to drive home an instructional point. I will admit that I DO get a bit bothered when I try to balance reports on the importance of school attendance with the occasional (I hope only ‘occasional’) blatant waste of instructional time at the end of a school year.
As technology leaders, you may not be able to influence this conversation. It may not be a battle that you deem worth fighting. I understand that. At minimum, though, it’s worth a bit of thought and knowing what the law says about some of this behavior that you may see taking place around you in your schools. If Netflix traffic is 31% of your school district’s download traffic during the school day, should that be a concern? How would your superintendent or community members feel about that?