July 28, 2004 @ 18:07pm
A faculty member is planning to download songs at his own expense for a song literature class to make them available on a class website as part of required listening. Is there any copyright problem with this plan? Does he (or the University) have any copyright infringement liability if students then download songs off the class website to burn CDs for their personal use?
July 28, 2004 @ 18:07pm
If the faculty member is downloading songs from CDs that he already owns, there should be no problem. It is curriculum related. I would password protect the location where the songs are stored and make the location only available to students in the class. I would remove access to the site as soon as the faculty member is finished with the course.
I make these suggestions to limit the availability and potential reproduction and re-distribution of the works. I think by containing it, there is a stronger argument that this is strictly curriculum focused.
I also would provide appropriate attribution and provide a copyright warning ("these materials are protected by copyright. Further copying may be an infringement of copyright..." something like that) where the students access the downloaded songs.
I am not considering TEACH here and all of its requirements. I am suggesting that the use of the songs is okay because after considering the four factors of fair use and applying them to the situation at hand, I think the use is fair.
It is harder to make a fair use argument for downloading songs when the faculty member does not lawfully own copies of the songs. I wouldn't do it unless there was some compelling reason - like this is the only way the faculty member can get the song or the musical group that created the song wants people to download. "Personal fair use" has been called into question in some courts regarding downloading songs.
If students make copies, then the situation moves further away from fair use unless the curriculum argument could still be made.
If the recording industry chooses to sue, they can pretty much pick their target if they think they can make the argument in court. So they could sue the student and sue the faculty member and the university for contributory infringement or something like that.
I am not a lawyer and cannot provide legal advice but this is my professional opinion. Others may not share my views.
July 28, 2004 @ 18:07pm
Would it still be within fair use if the professor copied an entire album to the web site?
Luis Rodriguez
July 28, 2004 @ 18:07pm
We are facing a similar situation at the University of Arizona. If you can do it, I suggest streaming the songs instead of making them availbale for downloading. You have a better fair use argument if the copies you are making do not encourage the making of other copies. If you don't have streaming capabilities, then Carrie Russell's suggestion to include a notice about further copying is the next best.
And I don't think it matters if an entire album is included so long as the entire album is important to the educational goal (and access is limited to the class or the institution).
Dan Lee