Submission Date:
Question:
The question, as a follow up to the Oct 31, 2019 post about showing movies and Swank.
The school does subscribe to Swank and would like to show a video using Netflix. This is not for face-to-face instruction. According to Swank’s terms of use they are licensed by the movie studios to show any legally acquired version of the video. From Swanks’ FAQ Page (https://www.swank.com/k-12-schools/faq#whereCanIAcquire).
Regarding Netflix, this is there term of use:
Netflix Service 4.2. The Netflix service and any content viewed through our service are for your personal and non-commercial use only and may not be shared with individuals beyond your household. During your Netflix membership, we grant you a limited, non-exclusive, non-transferable right to access the Netflix service and view Netflix content through the service. Except for the foregoing, no right, title or interest shall be transferred to you. You agree not to use the service for public performances.
My question- does Swank’s license allow for this OR does Netflix’s license stand even though rights are secured by the movie studio.
Answer:
I must be very clear: Unless I obtained a written representation signed by an officer of Netflix, I would never advise a corporate client[1] to rely on the Swank umbrella license to show a video from a “personal and non-commercial” Netflix account.
Why is this? Because the one license does not trump the other.
To illustrate this concern, here is the best analogy of I could come up with[2]: if it’s bow hunting season and I get a bow hunting license, I can bow hunt. I can commune with nature, test my skills, and if I’m lucky, come home that night and make some venison stew.[3]
But if, while eating my dinner, the police stop by to investigate an allegation that I shoplifted the bow and arrows, they won’t say: “Oh, you have a license? Sorry, back to your stew.”
The same principle applies here. A Swank license can definitely allow your institution to watch a covered movie you lawfully obtain. But the Netflix license quoted by the member does not allow the movie to be shown beyond the account holder’s “household.” And the language makes it clear the account is for “non-commercial” uses. In other words: a copy used to further institutional operations was not lawfully obtained.
Unfortunately, Swank is pretty coy about this concern. Here is the language from the link provided by the member:[4]
Where can I acquire movies after we receive our license?
You can use movies that are secured from any legal source (DVDs, digital copies or any other legal format). While we cannot speak for other companies, we recommend checking the terms and conditions of any streaming service used to confirm that they do not prohibit public performance. [emphasis added]
Now, in copyright law, everything is up for debate. If I put this topic on the table at a gathering of three copyright attorneys, I guarantee you’d get six answers (maybe seven). And of course, attorneys love it when their clients test the boundaries of the law: it gives us a chance to engage in high-stakes, nuanced, and learnedly arguments—and sometimes, it comes with a paycheck.
But one thing most attorneys in the business world respect is risk. There is a risk that Netflix[5] could view the use as unauthorized. And I stated above, unless there is rock-solid assurance from the vendor (in this case, Netflix) that it is authorized, use of a personal Netflix account for an institutional purpose is just too risky.
How does this play out in the real world? Large services like Netflix look for “teachable moments,” to bring lawsuits. They send out private investigators, track IP addresses, and look for evidence of broad misuse. Once they gather the evidence, they select a victim, and sue[6] (although in the case of Neflix, Section 7 of the License allows for them to resolve the matter via private arbitration).
What is the protection against that? An institutional policy that bars use of personal accounts for professional purposes.
There are some approaches to this educational dilemma that do pass my “sniff test.” Some colleges encourage students to get Netflix accounts if they are taking a film class, so they can watch movies at home. Near as I can see, unless Netflix starts putting some new “not for class” terms in its license, this is okay (but does not extend to the entire class using one student’s account…unless they are all in the same household).
Similarly, if a history teacher wants to use their Netflix account to view “13,” at home, even if it is to prepare for a lecture or a discussion of the film in class the next day, that strikes me as a “personal” use. But if their institution asked them to do it, or they wanted to use their account to watch the movie in class, that would not be allowed.[7]
I wish I could give the member clever answer informed by Fair Use, or coming up with some special rule that applies to libraries. But licensing is a creature of contract, and if you accept the terms, they will generally govern.
So, just like this member, read those licenses carefully!
[1] I know it sounds rather cold, but in liability-land, schools are “corporations.”
[2] You should see the analogies I left on the cutting-room floor! My favorite involved a building permit and pirated architectural plans.
[3] I do not bow hunt, but if I hunted at all, that is how I’d do it. I have a friend who bow hunts; she is like Wonder Woman, but with white hair a much more practical gear.
[4] As of December 18, 2019 (I took a screen shot). We’ll see if it’s there in a year or so. I’m such a media influencer, maybe once Swank hears about me calling them “coy,” they’ll switch it up!
[5] As discussed in other columns, Netflix does have an “educational use” license for some documentaries. Their instructions to see if a movie is available that way is here: https://help.netflix.com/en/node/57695
[6] ASCAP, BMI, RIAA, MPAA, and DirectTV were the pioneers of this tactic.
[7] I would like to thank Jim Belair (who gave me permission to credit him here) at Monroe 2 Orleans BOCES for a great discussion on the implications of this issue for New York public schools. Most institutions don’t invest in DVD players anymore, which means that streaming is the way the access content. But if the streaming service isn’t in the name of school (just the teacher or the administrator) use by the school risks violating their license.
Tag:
Copyright, Movies, Streaming, Swank Movie Licensing, Umbrella Licensing, Licensing
