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September 18, 2010, 10:34 AM ET

Academic Libraries Add Netflix Subscriptions

A Netflix subscription seems like a no-brainer for an academic library with a limited budget to meet campus demand for audiovisual materials. But as more librarians sign up for its popular mail and streaming-video services, Netflix says library distribution of rented DVD's or streaming video violates its terms of use.

According to Steve Swasey, Netflix' vice president of corporate communications, Netflix does not offer institutional subscriptions. All of its media are meant only for personal consumption. Loaning DVD's out for faculty members to project onscreen in class or allowing students to watch streaming video from a library Netflix account is something the company "frowns upon," Mr. Swasey said.

The company knows that its service is being used by librarians, but so far it has not taken legal action to stop them. "We just don't want to be pursuing libraries," Mr. Swasey said. "We appreciate libraries and we value them, but we expect that they follow the terms of agreement."

A number of college and university libraries have active Netflix programs available to faculty and staff members. According to their libraries' Web sites, the University of Washington, Willamette University, and Pacific Lutheran University are among the institutions with Netflix programs in place.

Rebecca Fitzgerald, acquisitions librarian and office manager at the Scheele Memorial Library at Concordia College, described her college's Netflix plan for students in a September 9 guest post on the Tame the Web blog. Ms. Fitzgerald said Netflix has saved her campus approximately $3,000 on film purchases. "I hope many libraries, who are facing hard economic times, consider Netflix as a valuable option," she wrote. "It continues to be cost-effective and easily accessible for the students."

Ms. Fitzgerald said there have been no legal repercussions from her library's Netflix program. "No one from Netflix has questioned this," she wrote in response to comments on the blog concerning the program's legality. She did not respond to The Chronicle's requests for an interview.

Ciara Healy, who now works as an outreach-services librarian at the Netflix-less University of Wisconsin at Oshkosh, published a report in the Winter 2010 issue of Library Trends on a Netflix program for faculty members she set up while a librarian at Wake Technical Community College in Raleigh, N.C. Ms. Healy lauded Netflix as a way to make up for gaps in smaller libraries' collections.

At Wake Technical, Ms. Healy said, she set down strict guidelines for access to Netflix material. DVD loans were restricted to faculty members who planned to use the material in the classroom, not for at-home entertainment. She allowed students to access streaming video from the Netflix Web site, but only under supervision on a computer in the college library. "I had a very tight grip on how those items were used," she said.

Ms. Healy said she acted according to federal copyright law, which allows faculty members to share legally obtained material in face-to-face instruction. She said she was never notified by Netflix that she was violating its terms of use, although she opened up the account under the college's name. "They certainly know that universities are using their service," she said. "They have their licensure for a variety of legal reasons. I don't think that they mean it as a strict prohibition against using their materials for face-to-face teaching."

Copyright lawyer and librarian Kevin Smith, a scholarly communications officer at Duke University, said academic libraries are taking a risk with these programs. Although copyright law allows faculty members to use the material in the classroom, he said, they may be opening themselves up to legal action from the company.

"My personal opinion is that the risk of a contract problem makes it not worthwhile for us to have a program to lend discs that we borrow from Netflix," Mr. Smith said. "It's not a copyright issue. It's an issue of the contract between the user and Netflix."

Comments

1. 11245439 - September 18, 2010 at 03:41 pm

Maybe Mr. Swasey needs to train people in his company to tell libraries that this kind of use is not an option. When I called NetFlix well over 2 years ago to inquire about this kind of subscription, I could not have been more clear about how we intended to use it (faculty previewing films for purchase, or needing a film that is checked out or on order.) No problem, per NetFlix staff. We pay every month on a university credit card. no hiding or pretending it is some other use. I am amazed.

2. mbelvadi - September 20, 2010 at 08:46 am

The issue Kevin Smith raises in the very last paragraph is a very important one for US libraries in general, and one that a great many people, including librarians, fail to understand. Fair use rights under copyright law do NOT supersede the restrictions placed on your use under a private contract with a provider. That's unfortunate, and many of us wish that Congress would pass a law that said that you can't sign away your Fair Use rights in a contract, but until that happens, the contract you sign is what you have to live under. This has much bigger implications for libraries for ebooks and ejournal packages than just Netflix. If modern library schools aren't teaching students how to read (and negotiate changes in) a licensing agreement, they should.

3. grahambennett - September 20, 2010 at 09:08 am

Netflix is missing a great opportunity here. The company should create a university account option that would allow faculty to place certain videos on "electronic reserve" via the Netflix streaming service for a period of time. I assign films in class but don't set aside class time to view them: students need to get the films and watch them on their own (they read books on their own, right?). But Netflix could create an account option that would let my class subscribe to a list of films for the semester. If they were particularly clever, they would approach Blackboard for an interface that would deliver the films to the students' computers via their Blackboard login. The individual subscription may not fit the university library and class use model, but that doesn't mean the company can't find a way to deliver the services faculty, libraries, and students need.

4. catlkelley - September 20, 2010 at 09:48 am

I have to wonder where these universities' General Counsels were when the librarians signed these contracts, intending from the outset to violate the terms. Where I work, any contract must be reviewed by the GC and signed by an officer of the university. This would simply never fly.

For the person in post #1, I hope that you have that agreement with a Netflix employee in writing. I've been told all kinds of things by sales people that turned out to be false, which a careful reading of the contract (by our University GC) revealed. Sales people's misunderstandings (or downright mis-representation) won't protect you. Having it in writing might help, though I'm not a lawyer so I'm not sure of that.

5. pdierschke - September 20, 2010 at 10:35 am

'She said she was never notified by Netflix that she was violating its terms of use, although she opened up the account under the college's name.'

- So, that makes it right?!? Do you also illegally copy and distribute music, but as long as the band has not contacted you, it is okay? Interesting role models...

6. texasmusic - September 20, 2010 at 10:46 am

It's interesting how we only talk about NetFlix and we forget that Blockbuster offers a similar (if not quite as good) service. I've spoken to representatives at Blockbuster and as far as they know, which may mean nothing, there is no restriction on library use. The closest thing I could find in the Terms and Conditions on their site was a restriction on using streaming video for a commercial purpose. Okay, I personally HATE Blockbuster, and for a very specific reason, but has anyone thought of trying the Blockbuster service?

7. intplibrarian - September 20, 2010 at 11:36 am

Where in the terms of use does it prohibit what libraries are doing with their subscriptions? Did anyone here criticizing the libraries for violating the license actually READ the terms of use?

mbelvadi (#2) is absolutely correct in pointing out that a license supersedes Fair Use and the TEACH Act -- but only in so far as it explicitly prohibits those types of use. The license I read (from my own personal account) doesn't. At least not right now. The Terms of Use document does say that Netflix can change the Terms of Use at any time and it also states that they can cancel anyone's membership for "any or no reason."

8. catlkelley - September 20, 2010 at 12:32 pm

"Unless otherwise specified, our DVD rental service and the content on the Netflix website, including content viewed through our instant watching functionality, are for your personal and non-commercial use only and we grant you a limited license to access the Netflix website for that purpose. "

I think the key words are "personal use only," and "limited license."

9. catlkelley - September 20, 2010 at 12:34 pm

The terms are available here:

http://www.netflix.com/TermsOfUse#limitations

As I said above I'm not a lawyer, but my reading is certainly that Netflix has granted a limited license restricted to personal use. Also non-commercial, though that is not the issue here.

10. librariankate - September 20, 2010 at 01:27 pm

So a logical extension is that while corporations have recently been found to be persons -- and therefore presumably able to make "personal use" of a Netflix account -- universities are not persons. Perhaps what is needed is a non-profit incorporation by the universities in question.

11. 11159995 - September 20, 2010 at 01:56 pm

I'm not a lawyer, but isn't it true that if a licensor is aware of violations of its contracts and takes no action to enforce them, doesn't this failure to take action undercut the licensor's ability to win at trial in the future? --- Sandy Thatcher

12. mbelvadi - September 21, 2010 at 06:33 am

Sandy, I think you're right and it's called estoppel, but there may be a question as to which employees in the company are important enough that their knowledge constitutes the basis for an estoppel argument. The likely-outsourced sales reps answering the customer service line may not "count" as the "licensor". Any lawyers out there who could clarify this?

13. boone - September 21, 2010 at 10:32 am

The cost of a Netflix account that would meet the needs of most academic individuals (3 dvds at a time, unlimited instant viewing) is about $17.00/month. At this rate, a semester subscription costs less than most textbooks. While it wouldn't address the issue of showing films in class, requiring that students maintain their own Netflix account for a semester should cover the needs for supplemental viewing.

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