Submission Date:
Question:
Is it legal for the library to purchase a Netflix account and install it on a Roku or Firestick and lend that out for patrons to use? See also: Amazon Prime, HBO Max, Disney+, Paramount+, etc. etc.
Answer:
When this question came in, our first thought was that it was addressed in answers such as ATL 191 and ATL 104, and even older ATL 55, where we tackled the types of limits streaming services impose on accounts via contract.
These answers (and others) discussed how most[1] commercial streaming service contracts limit the ability to transfer a personal streaming services account to another person (temporarily or permanently), even if the transfer is limited to one person at a time.
The member replied that we hadn't yet addressed their issue.
This question was submitted in June of 2021, and I have had a chance to chew it over.[2]
As I chewed, I reminded myself of a few things:
- librarians, as a profession, need to see information flow;
- librarians, as a profession, are innovators;
- librarians, as a profession, are service-oriented.
This is different from lawyers. If you say: "An enforceable contract with no loophole means no one gets to borrow a Firestick to access 'If Beale Street Could Talk' during Black History Month," to a lawyer, they will say "Hmm. When does that contract end? Let's make a note for future negotiations."
However, from what I've seen, if you say something like that to a librarian, they will reply: "There has to be a way."
This may have something to do with why the librarians have a more popular profession than lawyers.[3]
So...is there a way? I see three ways.
First way: enable the lending through a stark and deliberate violation of the streaming service's terms. Just do it.
Of course, choosing to do such a thing runs a heavy risk of potential liability (for both the library and the borrower), so this is a VERY, VERY, VERY, BAD IDEA. Don't do it, unless you have worked with a lawyer on a strategic defense and are planning to use any potential litigation as publicity to negotiate changes to streaming contracts (a sort of contractual "civil disobedience").
Second way: reach out to the streaming service and see if you can negotiate a custom arrangement. For instance, it would be very interesting to see if a library could negotiate up to 10,000 viewing hours on an annual basis to be on accounts specially created to be shared. Clever lawyers at the streaming service could even make sure that this was regarded as a charitable donation by a streaming giant, and of course, they would also milk it for positive publicity.
Third way: You need to Go Big.
What do I mean by that?
This question is yet another example of the troubling trend of for-profit content aggregators using their market share to restrict information access.
This used to be the bleeding edge of concerns created by the intersection of copyright/contracts/capitalism, but it is now a firmly established Problem.
In my work, I have consulted with academic libraries and other institutions on how scholarly and public service-oriented content providers can guarantee access is not completely cut off on the basis of money. I have worked on checklists for contract negotiation, and provided model contract terms to help libraries use their market power to ensure big aggregators don't use their market power to stifle access, innovation and collaboration. This is not new work and I am not the first person to say this; it's an issue to which the library community is very much aware, and is closing ranks.
To solve this issue, there are a few ways to go. The best way would be to seek amendments to the copyright law to carve out further protections for libraries who are sharing electronic resources and streaming access in furtherance of their missions. This type of discussion is happening in Washington right now, and it is critical that everyone is rooting for the right revisions to be put into the law.
The second way is of course a version of my second answer above...use contract, and the market share of libraries, as leverage to negotiate for terms that enable the type of access the member is suggesting. While I am a fan of using contracts to come up with creative solutions, this will not create an even playing field for the different types of institutions who need to benefit from this, so I prefer the legislative option.
I encourage all librarians to monitor this discussion at https://www.copyright.gov/policy/section108/, because the question the member has provided is exactly where the rubber hits the road on that type of legislation.
I am putting screenshots of the Netflix terms of service below this answer, which I took on February 11th, 2022, to show that at least as of this date, that particular streaming service continues to restrict access to personal use (first red box), with very limited exceptions for certain educational showing of certain documentaries in educational settings (second red box).
Thank you to the member for your tenacity, and for submitting this question.
[1] Actually, based on what I've seen, "all," but most of the services reserve the right to change the license without notification to the end user, and of course, I am not omniscient, so I'd like to think there's a streaming service out there somewhere with less draconian terms. Hope springs eternal!
[2] And swallow it, digest it, and create this end product. Many thanks to CLRC and member Hamilton Public Library for your patience! It took a rain-logged, windy Saturday in February 2022 to get me in the right head space for this.
[3] I took a look, and of course, "National Librarian Day" happens every year in April. As librarians no doubt know, NLD is billed as a chance to "celebrate" your local librarian. Interestingly, April also hosts international "Be Nice to Lawyers Day." That's right...we have ONE day a year when people are told to be "nice" to their lawyer!
