Submission Date:
Question:
A teacher from our school needs audiobook access to four different books for about 10 students per book, particularly if our absence from school is extended. She would like to provide the links to students where such audiobooks have been uploaded and posted by others on YouTube. The audiobooks are still under copyright. Previously, I had been told that if a teacher merely posts links that the teacher him/herself is not liable for copyright infringement, but another librarian recently stated that there is some new case law on the issue and that even posting the links constitutes a violation. Any guidance you could provide would be appreciated. Thank you.
Answer:
For the record, as I write this response, the following message runs across the top of the U.S. Copyright Office’s web site:
Operations Updates During the COVID-19 Pandemic
Out of an abundance of caution, all Library of Congress buildings, which includes the U.S. Copyright Office, will be closed to the public until Wednesday, April 1, 2020, at 8:30 a.m. to reduce the risk of transmitting COVID-19 coronavirus. If you are a user of U.S. Copyright Office services, submit your applications online, browse FAQs, and submit emails with questions through copyright.gov. You may also reach the Copyright Office by phone at (202) 707-3000.
Despite that announcement, no deadline, fee, or change in copyright law or regulation has been announced.[1] That said, even the Copyright Office is switching things up as we respond to a global pandemic, and I have received many questions asking if the normal copyright laws still apply (they do).
This question, too, is about pandemic response; the member’s colleague is working to provide content for students whose education is making a quick, unplanned transition to distance learning. That calls for flexibility, ingenuity—and appropriate online content.
The member’s institution is not alone in this need for new resources. As I write this, my staff is working from home, and my kids (ages five and fifteen) are handling packets from school and electronic transmissions of homework. Everyone I know now wishes they had bought stock in Zoom. We are all seeing how vital solid online content can be.
The member wants to know if simply providing links to content that might not be posted with the permission of the copyright holder will expose their school to liability.
As of this special moment in time,[2] the clearest[3] case law on linking and academic texts found in an array of cases pen-culminating[4] in Pearson Education, Inc. v. Ishayev, a 2014[5] ruling from the one of the federal courts located in New York City (the “SDNY,” if you want to sound cool about it).
In the “Pearson” line of opinions, academic publisher Pearson Education accused two Brooklyn residents of (among other things) providing a hyperlink to a file-sharing website where a person could (allegedly) obtain copies of the Plaintiff’s materials.[6] Pearson’s law firm even had one of their legal staff pay for the links from the defendant! (This is the kind of sneaky thing that makes people not like lawyers.)
As pointed out in the line of Pearson rulings, sending an email containing a hyperlink to a site facilitating the sale of a copyrighted work does not itself constitute copyright infringement; it’s viewed as “the digital equivalent of giving a recipient driving directions to another website on the Internet.” But that doesn’t mean that sending a link to infringing content is always okay.
As put by SDNY Judge Paul Englemeyer’s March 24, 2014 ruling on the case:
The publishers assert that Ishayev is liable for contributory infringement because he knowingly sold access to hyperlinks, which allowed other individuals to download eight of the publishers' copyright protected works from a website. If proven with competent evidence, such conduct would lead to liability for contributory copyright infringement—sending hyperlinks that permit others to download protected materials would plainly amount to conduct that encourages or assists in copyright infringement. [emphasis added]
Unfortunately, as can be seen in the Pearson opinion, deciding possible liability in matters like this doesn’t come down to a simple question of “links, or no links?”
What does it come down to? The sender’s awareness of infringing copies, and their state of mind and intentions when they sent the links.[7] In other words: if you know it’s wrong, don’t do it.
That’s the cold letter of the law, and it’s not very helpful or comforting, I know. I give you something that might be a better guidestart on this one: professionalism and respect.
We are living in a very odd Spring Semester, here in 2020. As the State of New York issues Executive Order after Executive Order, I am struggling to find solid guidance for clients. People need to know what they can do (and not do).
While not quite on par with trying to education students, I can relate: we need content to get the job done, and the content we are finding at this precise moment might not be the most reliable. It’s scary and inconvenient and hard.
I think, more than ever, that means it is time for us to do what we know is right. If we know an audiobook is available from an unauthorized source, don’t direct innocent kids to go download it from a known infringing source. It’s just not the right thing to do (and some day, those students might be copyright holders themselves, deserving of the same respect).
And finally, even if you’re willing to take the risk for your institution (we’ll take our chances, it’s a pandemic!), think of it this way: publishers and content owners track infringements by IP address, so the person who might get in trouble might not be the school, but rather the student.[8]
So, did the case law on linking “change?” Not quite. But it has evolved. And who knows, maybe as a result of the current crisis, it will evolve some more. But for now, knowingly linking to known unauthorized content brings risk.
Thank you for a great question. I wish you health, energy, and ingenuity in this time of national emergency.
[1] Registration fees went UP this month, but that’s another story!
[2] March 22, 2020, and what an odd day it has been.
[3] In my opinion.
[4] Welcome to my new word, “penculminating,” which means, the next-to-last thing before the end result.
[5] There are actually quite a few judicial opions on “Pearson Education.” Make sure you look at the final rulings from 2014.
[6] This is a very bare-bones summary. For the full story, check out the opinion here: https://scholar.google.com/scholar_case?case=2045770819331774838&hl=en&as_sdt=6&as_vis=1&oi=scholarr. (Note my intrepid linking without fear of liability!).
[7] I am not even going to attempt to go down the fair use road on this one! But in different circumstances (not using the materials simply to teach from, for instance, or using tactical excerpts) such a claim could be made.
[8] Okay, let’s get real: it would be the parent whose name the IP address resolves to. But you get my point.
