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I've been trying to research how digital media can be lawfully utilized for online, distance-learning courses. The specific use case here would not be a MOOC or anything massive, but an online course offered to homeschooled students that probably would have less than 20-30 signups per semester. The sourced videos would include items such as this one:

http://www.pbs.org/wgbh/amex/scottsboro/

Current American guidelines suggest that it is perfectly OK to offer this video in-person in a physical classroom:

  1. Classroom Use of Videos Public performances of a video/DVD in the face-to-face classroom is an exception to the public performance right §110 (1) and therefore lawful. The following conditions apply:
    • The teaching activities are conducted by a non-profit education institution
    • The performance is in connection with face-to-face teaching activities.
    • The performance takes place in a classroom or similar place devoted to instruction.
    • The person responsible for the performance has no reason to believe that the videotape was unlawfully made.

Source: http://www.ala.org/tools/libfactsheets/alalibraryfactsheet07

However, I am unable to find current and accurate guidelines that would apply to online courses in a similar manner. At the current time this means that we are restricting our course videos to items that can be obtained reasonably on Amazon, Netflix, iTunes and so forth - however, this is so piecemeal that it becomes a real pain to attempt to track and maintain locations, prices, availability, and so on for the relevant videos.

Is there any legal path for a purchased educational DVD such as the above to be made available online for a strictly limited educational audience in a distance learning context?

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    There's a brief here that may be of interest to you. – ff524 Oct 26 '15 at 1:09
  • Thanks! I'm reviewing that now. At first glance, it looks like it is most relevant to a course with online presence - the students are gathered synchronously and the media is being streamed in real time. For reference to others, I'd be interested as well in situations such as: discovering a copy of a video on YouTube that may not be licenses, and linking to it, as well as asychronous (non-realtime) viewing, such as embedding a video in a Canvas course. Thanks! – E.M. Connor Durflinger Oct 26 '15 at 1:31
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    Have you asked your academic librarian? I think this is a pretty common situation, and they are likely to know how to handle it. – Nate Eldredge Oct 26 '15 at 1:41
  • This isn't a college course; this is a homeschool education course for home education. but you're right, my wife who's offering the course does have a PhD in education and has alumni resources we should probably tap here. – E.M. Connor Durflinger Oct 26 '15 at 1:52
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Per brief linked by @ff524 in the comments (updated location here - PDF), there seems to be a reasonable argument that anything you could do in a face-to-face classroom is reasonable to do in an online learning situation as well, as long as similar barriers to entry apply.

The classroom exemption basically says that what you're doing isn't really a "public" performance per se, it's use in a small-group instructional setting. Hundreds of thousands of people can't just drop in, like they can for a publicly posted resource on the internet.

As such, it seems that if you use technology to shift that small group around in space (e.g., via online streaming) or in time (e.g., via asynchronous viewing), then it's still instructing a small group. The legal details might or might not be resolved, but the argument would be strong and there's clearly no moral or ethical issue.

If you just post something publicly, however, then you've removed the barrier to entry, and the number of people who can potentially be using that resource is unbounded. Maybe there will never be more than just your students, but what if for some strange reason the lecture went viral? While that probably won't happen, there is a moral and ethical (and likely legal) line being crossed when you decide to make something that is otherwise restricted freely available to the entire internet.

In between the two cases, I believe, is a grey area of MOOCs, in which there is a barrier to entry, but the technology is used to greatly scale up the number of students that are being served by a lecture. Since it sounds like you're planning to stay small, however, that's not something you would need to worry about for now.

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