Cindy Chick asked previously whether a law firm could borrow a
videotape from another firm's library to show for an in-house CLE
program.
Whether the performance of a videocassette in a law firm
infringes copyright depends on several factors. First,
copyright infringement problems can exist only if the
performance is "public" under the definition contained in
Section 101 of the Copyright Act of 1976 (17 U.S.C. Sec. 101).
If the performance is not "public" (i.e. it does not satisfy the
definition), no problem exists because the copyright
owner's rights under Section 106 extend only to public
performances.
Determining whether a particular performance is public can
be tricky. Section 101 classifies several typical
performance scenarios as public. First, a performance is
public if it takes place in an area generally open to the
public--like a public or academic library. Law firms would not
likely be classified as generally open to the public in that
members of the public cannot walk freely throughout a
law firm.
Second, a performance is public if it occurs "at any place
where a substantial number of persons outside of a normal
circle of a family and its social acquaintances is
gathered." The legislative history of the act states that
business meetings ordinarily would fail this test because
the number of persons involved would not be "substantial." Case
law suggests that the number of persons involved to be
substantial would be upwards of 20-25. It is possible in
large firms for that many attorneys to be involved in a CLE
program, so your situation might fit this. Simply limiting the
number of persons who view a performance at any one time to 10-15
would solve this problem.
Third, a performance is public if you "transmit or otherwise
communicate a performance . . . to a place specified by
clause (1) [i.e. generally open to the public or where a
substantial number of persons is gathered] or to the public, by
means of any device or process, whether the members of
the public capable of receiving the performance . . .
receive it in the same place or in separate places and at
the same time or at different times."
This is known as the transmit clause and could apply to a
teleconference situation. Nimmer suggested in his treatise on
copyright that the rental of a videocassette could be a
public performance in that one uses a device (the VCR) for
the performance and members of the public would be capable
of receiving it a different times and different locations. This
interpretation has not been tested fully in the courts, but it
could arguably apply to your situation if you borrow tapes from a
library. I seriously doubt, however, that you would have
difficulty with this interpretation. If
copyright owners embraced Nimmer's reasoning, they would
have moved against video rental stores long ago.
So, I think that law firms should not have difficulty with
performances in-house at one location if you limit the
number of viewers.
Wes Cochran
Law Library Director
Texas Tech University
xpjwc@ttacs1.ttu.edu
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