This afternoon, I read a post at the Wired Campus blog about libraries loaning out Netflix discs to students and faculty. They point to a guest post from a librarian on Tame the Web who discusses how she is doing this at her library. She touts it as a great way to offer more DVDs to patrons than her library could possibly afford to purchase. Then I see that there was a 2010 article in Library Trends, a scholarly publication, describing using Netflix to expand the library’s DVD offerings as well (I can’t read it because our databases have a 1 year pay wall for LT). At this point I am gobsmacked, not because this is a brilliant idea, but because I can’t believe librarians would actually publish and brag about how they are willfully violating a company’s terms of service.
According to Netflix, “The use of the Netflix service, including DVDs rented to you by us and the Netflix instant streaming discs is solely for your personal and non-commercial use.” They are not saying that you can give this to others. They are not saying that you can use this in the classroom. They are saying that this is for your personal use and you can’t make any money off it. Netflix does not have institutional subscriptions. Therefore, what the library is doing is in violation of Netflix’s terms of services and opens them up to legal repercussions. And it’s not just one or two libraries doing this. I found a number of other libraries offering Netflix discs to their patrons. This library states that the use of Netflix discs is “designed for instructional purposes only; it is not intended for recreational or home use” (which is the opposite of Netflix’s actual Terms). Does the library think that somehow that makes it better? This library makes money when someone returns a Netflix disc late, which could also test the boundaries of non-commercial use (I’m not a lawyer… just conjecture). This one charges a $50 lost fee when a Netflix disc is lost (is that how much DVDs cost these days?). This library also only loans out discs to instructors, as if that somehow makes it ok to willfully disregard the Terms of Use.
So what’s the justification for this? In addition to the “this has saved us an enormous amount of money” justification Rebecca Fitzgerald at Concordia College, author of the Tame the Web post, makes 3 arguments in response: 1) “there have been no legal repurcussions involving our Netflix accounts”, 2) “No one from Netflix has questioned this”, and 3) “our library is not the first to use this program.” Well, clearly that makes it ok, right? This sounds like the same arguments people who violate copyright make. Well, you know, everyone is doing it. We need to do it because we couldn’t afford to provide all these things otherwise. No one has told me not to. Actually, they have. They told you not to in the Terms of Service, which you tacitly accepted when you signed up for the service.
It’s annoying enough when average people do things like this, but librarians should be smarter than that. We are supposed to be the ones helping faculty stay on the straight-and-narrow regarding copyright. What kind of an example are we setting when we show such flagrant disregard for a company’s Terms of Service? And this not only opens a library up to being sued by Netflix; it also opens the library up to being sued by the studios that own the movies libraries are saving money on by not purchasing and getting through Netflix. There are a number of video on demand services that are designed for use by educational institutions, so it’s not like Netflix is the only option for making a huge wealth of video material available for instructional use. What it is is the cheaper option. Are librarians really this clueless and/or irresponsible?
Now, let’s imagine that there’s a grad student who is really impressed with his library’s collection and thinks it sucks that average folks in his community do not have access to the same wealth of books and DVDs. So, because he’s a grad student, he gets a longer loan time and he decides that he is going to check out books and DVDs for people in the community who are not affiliated with his university. He creates his own policies and loan times and even charges late fees to “borrowers” which nets him a little income too. Now, essentially, the library is loaning books out to people who are not members of the university community without their knowledge and in violation of their policies. Now let’s say that this guy is so brazen that he actually sets up a website touting this service he offers and a librarian happens to see this website. What do you think will be the reaction of the library? This guy would be in a whole heck of a lot of trouble. At a minimum he’d lose his borrowing privileges, but I bet it would go further than that. And how is this any different from what libraries are doing to Netflix?
I have to say that I am still in a state of shock that so many libraries, including some major Universities, are doing this. I keep thinking that there is something I’m missing that somehow makes this ok. But I really can’t see it. Could someone enlighten me?
Thanks for stepping out on this one Meredith. This smacks at the liberalization trend in the 21st century regarding intellectual property, copyright, and the plethora of “terms of use/service” we all agree to but never read. It is intriguing. A similar conversation could occur regarding the circulation of Kindle’s in libraries.
In your research, did you seek out any comments, beyond the terms of use, from Netflix employees about this practice?
You are absolutely right on this one. And the contracts libraries sign always trump copyright. It is true that vague and lengthy “terms of service” agreements are largely junk, and there are several court decisions that have said many parts of those are unenforcable. But on something as basic as this, particularly where institutions are concerned, there’s no way a judge will let it go.
But it does speak to a larger point, one with particular relevance for public libraries that focus on more popular materials. There is no law that says content publishers must sell libraries their content with reasonable terms of use, and in a digital age I wonder if libraries will even be able to get popular content. For more academic/obscure content, libraries may be the main or even the only customer. But that isn’t true for Harry Potter.
The argument that there have been no repercussions yet clearly means that they won’t have any in the future. Huh.
If they’re counting on the film and distribution industry giving them a pass because they’re an education institution, they’ve got another thing coming when legal inevitably learns of this and sues them, or cancels their account.
I wish we could use this conversation to draw attention to the increasing poverty of library resources, and the increasing view of libraries by content providers as either pirates or targets of exploitation.
Yes, breaking Netflix’s TOS is a bad idea for many and varied reasons. The larger question IMO is why libraries and classrooms can’t afford videos. (Or, increasingly, many other forms of media.) Viewed that way, Netflixing is band-aiding the problem rather than confronting it head-on.
It’s one thing to ask netflix to offer a library model we can subscribe to – and I think that would be a great idea and a great way for netflix to take advantage of our need in that area. It’s another thing entirely to blatantly break terms of service because “it saves us money” and “they havent sued us yet.” For folks who get our panties in a wad over copyright the way librarians do, it’s insulting to see them flaunt this. Talk about irresponsible. And a great way to dilute the legitimacy librarians claim when they enter into discussions with vendors and government bodies on topics of this nature.
Thank you, Mer. This is exactly why I asked the question I did on the original blog. Great job
Meredith, you’re absolutely correct on this, and your analogy of the grad student is spot on. Librarians willfully violating the Netflix TOS are also violating Netflix contracts with the copyright holders.
However, I agree with Dorothea that the real issue, especially as libraries increasingly rely on electronic resources (and as Netflix and others move towards streaming), is assuring affordable and continued access.
Very commendable bringing this issue to a larger audience, and agreed that libraries of all stripes have an ethical obligation here to abide by service agreements.
Not sure this warranted a conflation with the whole copyright dilemma. But seeing as how you brought into the mix I guess it puts an interesting spin on what you are confronting here. Much as with copyright, Libraries (depending on your size and/or clout with corpse like Google) do not have “too” much to lose by pushing the boundaries with things like Netflix (especially if they are restricting circulation to faculty). I can’t imagine that Netflix is in the dark about this, and probably the worst thing that can happen is that they get their accounts canceled.
I’ve seen some other articles that raise the likely suspicion that this is all just good marketing for Netflix at the moment. Rest assured that when Netflix “really” views it as a breach of service agreement they will put the kabosh on it. Much like corporations I suppose Libraries more and more consider themselves “persons” in the legal sense of the term, and Netflix is comfortable treating them as such…from one “person” to another.
Also, the whole moneymaking spiel I’m not really buying. Aren’t late charges just a classic mechanism for maintaining circulation? And replacement fees are something the Library would potentially be faced with from Netflix if they don’t get their disc back, so a fee is just another way of making sure it makes its way back in the drop box, and covers the contingency if it doesn’t.
And as for your scenario about the Pandora’s box of rampant Netflix lending. Like I said, Netflix would be the last to be in the dark about this, and it is a nice doomsday scenario, but a little outside of the norm for most communities to put up with a hassle distribution chain like that. It would be aberrant. This is the problem with all slippery slope arguments. Most of them use too many far-fetched abstractions as counterpoints.
I mean aside from how “bad” this looks for Libraries to be toying with the language and terms of service agreements, maybe we should be applauding them for trying to put as much cultural content into the hands of their communities as they can in times like these.
I mean Information Wants to Be Free right?
I totally agree with you on this issue. I also think that the same issue exists with those libraries that lend Kindles. Our attorney carefully read Amazon’s license agreement and determined that we would be breaking that agreement is we lent Kindles to the public.
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I called Netflix and spoke to them personally about using Netflix in our high school and how staff planned to use the DVDs. They were very helpful and said they saw no problem. They said that businesses are using this model with them all the time, and that although I was the first library to call them (2 weeks ago), they assumed there were other libraries using their services.
I would love to hear more about the model NH Librarian refers to. I’m glad this Netflix issue is being discussed as I have wondered about it for a long while.
While we may not be allowed under the TOS to ILL Netflix, we may be able to use them in the classroom under Section 110 of the copyright law.
Rental videos almost all stipulate for home use only. But, it is permisable to use these for educational purposes in the classroom, according to copyright experts, despite the home use labeling.
Section 110 Copyright Law:
“Limitations on exclusive rights: Exemption of certain performances and displays:
Notwithstanding the provisions of section 106, the following are not infringements of copyright:
performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made;”
Thoughts on the application of Section 110 to Netflix?
I agree with the hypocrisy angle. More classic American “Do as I say, not as I do.”
The library that I work at used to have a Netflix account that faculty members, and instructional staff, could use. This account was only started after library personnel, and I believe also the college’s lawyer, discussed this with Netflix who gave us the go ahead. We also talked to other libraries who had created a similar service, and they too had checked with Netflix before starting it.
We stopped the service though once it became clear that Netflix was being inconsistent in its stance towards libraries’ use of this service (I believe that there was actually a NY Times article where they said that this was not acceptable).
So, while I agree that some libraries may be overly glib in their reasons for why using Netflix is acceptable, I think that the real problem here is that Netflix is (at least sometimes) giving libraries the go ahead without changing their ToS, or creating a different subscription model which would address these issues. The fact that a mere two weeks ago Netflix told someone that they were the first library to have asked about this (which is simply not true) indicates that Netflix either has no policy on this or it is not communicating it well to its employees.
At the University of Washington, our Media Center provides a service to class instructors that allows them to request a DVD from Netflix for instructional purposes, if the DVD has many holds or is not held locally at UW.
http://www.lib.washington.edu/media/netflix.html
Ian, did that program go through legal at your university (or at your library) before being put into practice or do you have some sort of written permission from Netflix to do a program like this?
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Nice call. It is beneath librarians to knowingly violate copyright laws, or even TOS by such actions. If there are no institutional accounts with Netflix, then some individual librarian is putting their neck and career in jeopardy, and inviting personal liability along with the library as defendants in a law suit. Does anyone really believe that Netflix is going to extend their services to EVERY library in the nation? Not likely!
Librarians should be above such actions and not take advantage of some low-level Netflix employee’s willingness to be agreeable, or take a “Sure. Why not.” answer from any company as legal and binding. Do we not have professionals in our libraries anymore who know right from wrong? SAD!
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I’ve been amending license agreements for as long as I’ve been doing collections work in libraries — a decade, now. I consider it part of my responsibility to our users to ensure that information for which we pay on their behalf is accessible and usable. It’s one of the ways we can advocate for our users in the increasingly commercialized copyright environment, using the power we have as customers.
Since Netflix does not have a way to amend the agreement in writing prior to starting the service, we contacted them through their published channels and explained our intentions for our service. We indicated which parts of the ToS we thought we would be violating (“personal use”). We indicated that we would stop our service as soon as we heard from them that they would not abide by our intention in using their service.
We never heard from them, and thus by the terms of our communication with them, we interpreted this as tacit approval of our intentions. Our account is registered to The College Libraries. They could track us down very easily.
I don’t see it as hypocritical — at ALL — to claim that my library’s use of Netflix, which is largely in support of classroom use of video, is a fair use of copyrighted materials. I also don’t see it as a problem for a library to challenge the terms a vendor puts forward if they are more restrictive than our philosophy of copyright and use allows for. Like I said, I’ve been doing that for a decade, and I’ll keep on doing it.
While I’m supportive of trying to use Netflix in an academic environment, a ToS agreement trumps copyright law every time. Fair use is largely irrelevant in this debate.
Thanks for the clear, rational post @jenica, it’s very much appreciated. Keep up the good work!
Last Spring, we called Netflix also and asked about having a library account. The customer service rep said that was fine, he knew that many educational institutions were doing it and Netflix did not have a problem with this.
When we asked where in the TOS it said that, he could not point to it, and would not put it in writing for us.
I question if Jenica’s one way written attempt at amending the TOS would protect her library from the rights holders/movie studios on the other side of Netflix if they decide to start suing. If Netflix answered in writing, that may be a different situation then.
My campus does not have deep pockets to be a test case, so we’ve been told to get it in writing or don’t do it.
Having worked at the Netflix Customer Service Call Center years ago, this issue has come up internally at Netflix.
The official word we got was basically a don’t-ask-don’t-tell policy. We were told if asked about the idea of a library lending Netflix discs to tell the caller that it was against the terms of use and they should contact their legal department. Basically, Netflix will cover its butt with the studios and say it’s a violation of the TOS, but libraries can get away with it unless someone draws too much attention to it.
So far, the studios haven’t made a fuss. Netflix is making money off of the library accounts, so it certainly doesn’t mind.
This was similar to teachers and instructors calling about showing movies in their classrooms. We were told to mention the need to license movies for public display and to contact their school’s legal department.
Wired Campus blog has a post entitled “Academic Libraries Add Netflix Subscription”- in it, the Netflix spokesman clearly states this is a violation of the ToS. I have no doubt that in the past Netflix had a don’t-ask-don’t-tell/permission given depending who you call; I’d say those days are over:
http://chronicle.com/blogPost/Academic-Libraries-Add-Netflix/27018/
I have a sneaking suspicion that, once netflix really takes a look at this, a library model will be implemented. It does not make business sense to do otherwise.
Relying on Netflix to continue to allow this, despite their own terms of service is, IMHO, a fools paradise. Since this is a violation of TOS and libraries do not have a legal written agreement allowing them to use this private service this way, we are leaving ourselves wide open to a lawsuit or non-access at a later time.
This just came up at my university as a note of interest. I think it’s a fantastic idea, although I do agree the TOS should be amended for institutional subscriptions considering they seem to be ok with institutional use pragmatically. Everyone makes money on the deal, the studios, netflix, and the institution (via savings).
I also applaud the point that this conversation should shed light on library budget cuts, and highlight the need that exists. information poverty is alive and well folks, and libraries are being used more than ever these days and expected to provide exceptional services with significantly smaller budgets and less man/woman power. It seems libraries are struggling with the same financial issues that their information impoverished users are, what do we do when niether the library nor the user can afford access to the information, or we are barred from the information via end user licencing agreements and TOS’s??
Very thought provoking discussion! 😉
I agree 100% with Jenica: “I don’t see it as hypocritical — at ALL — to claim that my library’s use of Netflix … in support of classroom use of video, is a fair use of copyrighted materials.” This point becomes increasingly valid when Netflix willingly and with full knowledge sign up libraries for its service. Given the VP’s comments, it sounds like Netflix needs to clarify its own internal practices if they are really frowning on such use.
What concerns me about this discussion (and by extension the future of librarianship) is the extreme “copyright police” mentality that many librarians adopt. If Netflix doesn’t appear to be interested in enforcing its own terms, why are librarians so eager to enforce them on their behalf? Perhaps it stems from the discourse of
control that underpins librarianship (see Radford & Radford 2001). Whatever the case, I’m sure Netflix has the resources available to enforce its terms, if so desired.
What *does* seem hypocritical to me is to host a blog called “information wants to be free” and then post anti fair-use and anti first-sale doctrine comments that embrace the privatized and quickly growing clickwrap licensing knowledgescape. Information wants to be free, really? Perhaps this blog should be renamed “information should be licensed, and I’m here to enforce it even if the licensor doesn’t want to.” OK, it’s kind of a long and awkward title, but I think you know what I mean.
I just spoke to a representative at Netflix about an institutional membership and Netflix suggested the purchase of a Umbrella License from the MPLC: http://www.mplc.com/umbrella.php
This covers publicly performed videos/films and therefore would cover the language present in the service agreement.
John, you’re confusing two very different issues. Fair use is something I believe in very strongly. Our faculty certainly use videos we have in our collection for instructional use with their students, which is well within the bounds of fair use. This is not about fair use. It is about contract law. Fair use means nothing if a library signed a contract saying that they would absolutely NOT do something. For example, in my library’s contract with EBSCO we agreed that we would not link to articles in Harvard Business Review but would pay HBR if we wanted to use their articles for classroom use. We chose to agree to that in order to have access to Business Source Premier (and HBR), but that has nothing whatsoever to do with copyright, since there’s nothing wrong (in terms of fair use) with us linking to an article in a database. Contract law and copyright law are two completely different things. If you sign a contract saying you will not do x, you shouldn’t do x — plain and simple.
If a library doesn’t like a contract, they should not agree to it. They should at the very least try to get the company to change it and band together with other libraries to lobby the company for better terms. This is the way to improve things, not quietly doing something at your library that is against a company’s terms of service and hoping the company doesn’t get mad about it.
When a library sets up an account with Netflix, what does Netflix assume that the library intends to do with the DVD’s other than to circulate them?
As far as how much money Netflix is losing through libary circulation of DVD’s, no one knows. If people couldn’t get the DVD’s from their library, maybe they’d go to a video store or just do without.
I called Netflix in regards to our university using an institutional account for streaming video.
I was referred to the MPLC’s Umbrella License program. I was upfront about us being an institution. I called again to confirm this and was told basically the same thing. Another staff member called and was given the letter of the law concerning the Netflix TOS.
It seems as if that they are trying to allow libraries to circumvent their TOS until an institutional level language or seperate subscriptions are added.
Seems to me that they are talking out of every side of their mouths, except the legal one. For now.
As a public librarian, we’ve run into this same issue with TurboTax. Their terms of use very specifically state the CD-ROMs cannot be loaned to others, but many public libraries freely circulate them. It becomes very difficult to explain to a patron why you don’t carry these popular items when a neighboring library does.
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This morning, a leading voice in scholarly publishing weighed in on libraries’ use of Netflix.
http://scholarlykitchen.sspnet.org/2010/09/23/libraries-and-netflix-do-the-risks-of-abusing-rentals-outweigh-the-benefits/
I completely agree. Thank you for writing about this.
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Megan –
You’re correct that this isn’t a fair use issue, but it’s not a stretch to say it’s anti-first sale, with Netflix as the purchaser that is being bullied by media distributors who want to limit what they can do with purchased content. (obviously Netflix feels that their business model can handle library use, but I’m sure that language in the terms is driven by media distributors holding content hostage without it).
I do think it’s a bit hypocritical to call librarians here unethical…By the same thinking, musicians like Trent Reznor must really get your craw! Copyright says that people can’t reuse or distribute his music, but he’s ok with it and he lets it happen and even encourages it! (Just because he is ok with that doesn’t change copyright law and material doesn’t need to be registered to be covered by copyright)…
Libraries need to fight back against restrictive terms of use. Eventually we won’t be able to collect or preserve anything. Do we want to leave this up to corporate America to decide? You’re right – this isn’t fair use, but ONLY BECAUSE of restrictive licenses that go above and beyond that part of the law. If libraries sit back and do nothing, they are going to be able to provide a lot less to their patrons…and if you just look at the recent 9th circuit decision about software and the first sale doctrine, you’ll see that these rights are under attack. I think as librarians we have an ethical responsibility to fight against laws and consumer licenses that are not good for our constituents. Subscribing to Netflix is one way to do that.
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Hello. Thanks for posting this article. Useful info.
Kathleen, I’m not sure who Megan is, but I (Meredith) didn’t say that what libraries were doing was unethical — I said it was hypocritical AND foolish, because of the potential legal liabilities. I’m amazed that libraries have gone ahead with this without contacting Netflix and that those who have talked to a customer service rep haven’t gotten that exception in writing (since citing a phone conversation with a customer service rep whose name you probably don’t even remember probably isn’t going to hold up in court).
If Trent Reznor holds copyright on his albums, then he has every right to distribute them how he wishes. Everything on my blog is licensed under a creative commons license, which allows people to reuse and remix my content so long as they give me credit and are using it non-commercially. If someone who holds copyright on a work wants to give that intellectual property away for free, there is absolutely nothing wrong with that, because it is THEIRS.
I’m not a lawyer, but I would guess that those Netflix terms are not ones they made up, but that they are bound to them by the studios they make deals with. Netflix has made many concessions to studios to get more content for its users, like holding back some new releases for 28 days after they’re released. It wouldn’t be shocking to me that those terms were dictated by the studios, not by Netflix.
I’m not sure how libraries subscribing to Netflix actually helps anything. What would help, which I mentioned in my comment above, is that libraries should fight terms of service like this. They should talk to Netflix’s legal department and executives and see if there’s something that can be done to create a license appropriate for libraries. Just breaking the rules or individually asking for exemptions doesn’t change anything at a macro level.
Kathleen, while I agree that libraries have a responsibility to “collect and preserve”, I don’t see how paying a rental fee to a company in order to play middle man in content delivery (content that we don’t actually own) between that company and our end users achieves that goal. I’m all about the fair use of materials we’ve purchased and hold in our collections but this is something entirely different.
This is no different than a professor placing her personal books on reserve for a course she’s teaching, intending those books to be used inside the library for 3 hour stretches and then having the library lend them to students according to our regular circulation policy in violation of the agreement we entered into with said professor. We would never be able to justify this practice. It is easy to overlook honoring a contract or agreement when the other party is a faceless multinational corporation – not so easy when there is a face to go along with it.
What about the libraries that already partner with RedBox? At no cost to the library other than the kiosk space outside, the library earns $.03 for each rental. http://bit.ly/aN6p7T
Several Libraries Now Testing Redbox DVD Rental Kiosks Norman Oder — Library Journal, 02/02/2010
In my experience media loans are typically universal– a week or a few days for everyone– grad, undergrad, faculty, etc. Plus… I’ve spent this year talking to a lot of grad students and they can’t fit in such an ambitious enterprise as you’ve imagined! 🙂 But anyway, perhaps a loophole in the system… it could be a grad student who is a TA and hence can borrow a DVD for the duration of a quarter/semester… but that’s a lot of work to to loan and collect fees, etc. How about this though… a grad student– or undergrad– who “sells” scholarly articles? Elsevier wants to charge $30– what if this student sells that hot engineering paper for the low price of $9.99– or even .99 if you want to go all iTunes. I’m just saying…. the black market of scholarly communications!
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