Moving at the Speed of Creativity by Wesley Fryer

Copyright questions and answers about iTunes, Podcasts, and Fair Use

I posted the following Q&A series to the TechLearning blog, but am cross-posting this here for my own archival purposes. Generally my TechLearning blog posts aren’t quite this long and I don’t cross-post, but in this case I’m breaking with traditions….. This could probably qualify as an article rather than a blog post! None-the-less, the issues are very important and we need to have more conversations in our schools about them! I’d welcome your feedback and ideas either here or on the TechLearning post. (They are identical mirrors of each other.)

A high school librarian asked me several questions this week regarding iTunes, music purchased on iTunes, podcasts, playing purchased music in class for students, and music played at assemblies and by DJs. I need to emphasize my normal disclaimer before sharing answers to these questions: I AM NOT A LAWYER. FOR LEGAL ADVICE ABOUT THESE AND OTHER QUESTIONS, PLEASE CONSULT A LAWYER WHO HAS PASSED THE BAR IN YOUR STATE OR JURISDICTION. The following answers are my own best attempts based on what I have studied and been told regarding U.S. copyright law. For more resources on copyright, refer to my copyright workshop links (which I’ll be updating before next Monday’s presentation at COSN in Washington D.C.) and my article “Copyright 101 for Educators” in particular.

Once our teachers have iTunes installed on their district-owned laptops (with a site license), may they download purchased music on it without violating copyright?

Yes. As long as teachers are purchasing music from iTunes, they should be in compliance with U.S. copyright law when downloading those songs. Songs available for purchase via iTunes have been specifically licensed for individual download and use. Note the iTunes use license is for INDIVIDUAL use and not group use. Individuals are permitted to play iTunes music (DRM protected as well as non-DRM music) on up to five computers in the same household. Those computers authorized to play a song are authorized within the iTunes application. It is possible for teachers to “share” their iTunes library over the local network, but that sharing just allows for streamed playback of songs, not actual copying of songs from the original hard drive to another.

While purchasing and downloading music from the iTunes store is not likely to pose copyright scenario issues for teachers, the choices teachers (as well as students) make with music they download from iTunes COULD pose copyright problems. I will address those below in subsequent answers.

The place teachers as well as students can get into trouble (generally) when it comes to copyrighted music is when they download and run peer-to-peer (P2P) file sharing software. Most school network content filters will prevent users from downloading these programs over the network, but with laptops students and teachers can potentially download and install programs off the school network. Network monitoring software like InterMapper should be used by the district’s IT staff (or others providing network maintenance services) to determine if and when P2P file sharing applications are in use. In most university contexts today, network monitoring solutions are in place which permit IT staff to turn off network ports of computers which are running P2P software or sending/receiving packets in large quantities in a pattern that indicates malware is installed on the computer. This answer is getting beyond your original limited question about iTunes music, but I think it is worthwhile to understand the BIG differences between a commercial “store” application like iTunes and P2P file sharing applications which are often used for piracy of music, movies, and software. EFF has an excellent website about file sharing which points out (among other things) that all uses of file sharing are NOT illegal. Despite that fact, however, most school districts in the U.S with which I am familiar DO block P2P applications and application uses on their networks. The proliferation of malware distributed via P2P applications and downloaded files makes them a security nightmare, and I think schools are well-advised to have hardware, software, and monitoring procedures in place which limit P2P software use by network users. iTunes, however, is NOT a P2P application and does NOT present the malware risks associated with P2P software used for music downloading.

May they [teachers] rip their own CDs on these same laptops with songs purchased/downloaded from iTunes?

The Terms of Service of the iTunes Music Store is the best source for answers to this question. Obviously this is written by lawyers, but it is worthwhile to read this and other “terms of service” agreements to understand “the fine print.” A great way to help students as well as teachers understand the answers to some of these questions would be to point them to this link, and then have them use the document to answer the question. To communicate their answer, have them create a short skit which is videotaped. After parent permission is obtained, share that video on YouTube, TeacherTube, or other social video sharing websites so those short, dramatic “lessons” can become digital learning objects for others around the globe.

As was the case with your first question, the short answer is YES: teachers (and any other individual) may legally create CDs (rip their own CDs) with music they have purchased and downloaded from iTunes. The specific verbage in the iTunes Store terms of service which applies to this question is:

You shall be authorized to burn an audio playlist up to seven times.

The use of “seven times” in this terms of service agreement is interesting. This is not based in U.S. copyright law, in that copyright law does not specify a limit of seven times for creating duplicates. My understanding is this restriction is imposed because duplication and dissemination of purchased iTunes music SHOULD be limited by the terms of the service agreement.

There are multiple ways teachers can use copyrighted content from iTunes or other sources in ways that are not legal, and the subsequent COPYING and DISSEMINATION of those purchased music files to others for their use is an example of an illegal use. As a librarian, you cannot purchase a single copy of a song on iTunes and then provide unlimited copies (or legally, even one copy) of that song to someone else for them to keep and own. Purchasing a song from iTunes includes a license for individual use. Understanding this, you want to make sure your teachers know it is NOT LEGAL for them to create burned CDs of playlists (“rip” audio CDs) of music they’ve purchased from iTunes and give or sell those CDs for others. Burned or “ripped” CDs which include copyrighted music (including music purchased via iTunes) are for the exclusive use of the purchaser, per these terms of the iTunes store.

To summarize: Teachers MAY burn/rip a limited number of CDs of music files they purchase from iTunes. Those CDs should NOT be shared with others, however, they are legally for personal/individual use only.

May they [teachers] play entire songs in their classroom from the laptops/CD players/desktop computers or only 10% (or up to 30 seconds) of a song?

This is a tricky question. Before going into detail, I’ll say that playing music which a teacher has personally purchased (either via iTunes, as an actual, commercial compact disk, or via other means) in the context of their own classroom is most likely fine. I say “most likely” because in our litigious U.S. society, the reality is that anyone can sue anyone for just about anything. Philip Howard’s book “The Death of Common Sense” is one of the best treatments I’ve read about how crazy our legal system has become, and how much we are in need of tort reform.

The reference you are making to “10% (or up to 30 seconds)” of a media file is most likely traceable to the 1986 Fair Use Guidelines for Educational Multimedia. As I describe in my 2003 TechEdge article “Copyright 101 for Educators,” this well-intentioned document attempted to establish “bright-line rules” for fair use copyright compliance in the U.S. for educators, but those guidelines are NOT entirely accurate and can lead to problems. First, they can lead to overly conservative limits on uses of media, which CAN be “fair uses” under U.S. law. Secondly, rigid adherence to that document can lead to uses of content in the classroom which result in a lawsuit. Some known U.S. entertainment companies have become rather famous for their defense of copyrights, and have actually sued school districts as as well as teachers from what I understand. (I was not able to find a web link to a case like this for this post, if you have one please include it as a comment to this post.)

As I state in the previously referenced “Copyright 101” article, the best thing for teachers to look to when asking questions about “fair use” and using materials licensed under traditional copyright terms is the actual text of U.S. fair use law. There are four different aspects which are considered by courts in interpreting fair use law, and these are also described in the article. When it comes to “fair use” under U.S. copyright law, teachers do NOT have an “anything goes” sort of blanket permission. Many teachers have this misperception. I heard a conference presenter last month tell an audience, “If it is on YouTube, I just assume it’s OK for my students to use and republish it.” That is ABSOLUTELY NOT TRUE. Copyrighted materials are posted to YouTube frequently, and while some are taken down many remain. As a user-created media website, YouTube cannot and does not vouch for the copyright compliance of all the content posted there. YouTube will take down content reported as violating copyright law, but their “terms of use” spell out their limited ability to vouch for copyright compliance of user-created videos.

Generally, the place where teachers and students get into trouble when it comes to copyrighted music is when anyone is doing something for a COMMERCIAL purpose (like a fundraiser) and using copyrighted content without permission, or when they are RE-PUBLISHING content without permission on the “open web.” (The public Internet, on a website which does not require a login or authentication to access it.)

I’m sorry for the long winded answer, I think (scary thought) I may be sounding like a lawyer here. (I’m definitely NOT one.) As I stated in the initial paragraph of this answer, teachers are probably fine playing music they purchase over iTunes for students in their class. They are NOT fine using those songs without permission in videos they republish to the Internet, however, in their entirety. Shorter segments of songs CAN be used in ways that conform to fair use law, however.

An extensive conversation about copyright and use issues is available on Tim Holt‘s Classroom 2.0 post from September last year, “Creative Excuses Not to Use Technology.” This is an important conversation to have with both teachers and students, both offline and online.

In regard to a podcast that is available for free download: are there any restrictions on where it can be placed and/or how it can be accessed?

Podcasts are licensed under different terms. The fact that a podcast is freely downloadable does not mean it can be used in any way. Some podcasts (including mine) are licensed under Creative Commons terms, which are more permissive than traditional copyright. I have several links on my copyright presentation wiki page which relate to licensing and Creative Commons in general. The 2 page PDF file “7 Things You Should Know About Creative Commons” from EduCause is a good place to start.

The short answer to your question is: Yes, there are restrictions about how freely downloadable podcasts can be reused, remixed, and/or re-posted online. In all cases EXCEPT podcasts which are specifically licensed into and placed into the public domain, some sort of restriction (even if it is just a requirement for proper attribution) will apply to the reuse or re-posting of media content.

What about playing music at assemblies and dances (admission is charged for dances)? Are we breaking fair use rules here?

Whenever you play media files (including music and videos) in a public forum, rather than a more limited instructional, classroom setting, the context of use is different and therefore the interpretation of what constitutes “fair use” may be different. Whenever you are playing media files for a COMMERCIAL purpose, the context is also different from the instructional context of the classroom.

I am less familiar with these situations, but do know that some DJs have been found guilty of copyright violations for (as I discussed above) the illegal duplication of purchased music. Bob Moffett’s article for Performance DJ, “Copyright: What Does It Mean To You?” goes into more detail about copyright in the context of DJs and provides some suggestions for avoiding potential copyright problems with DJs you hire.

When it comes to playing songs at assemblies, those are likely considered “public venues” rather than instructional settings. Practically speaking, I think copyrighted songs and clips of copyrighted songs are played at sporting events constantly without the explicit permission of the copyright owners. Does such use of the media constitute “fair use?” If the sporting event is charging an admission fee for tickets, that is less clear. I have not heard of K-12 schools being sued (much less sued successfully) for playing copyrighted songs during a school assembly. That does not mean a school out there hasn’t been sued for this, or that some music company isn’t going to file suit against a school tomorrow for this.

I will reach out to some others I know (including some lawyers) to comment on this and hopefully provide more background and ideas on this last question. I hope these answers overall are helpful to you. Again, please refer to my wiki on copyright for educators for more related links. These are important issues, and I appreciate you raising them so more people can discuss and consider them!

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