Zoom, COVID-19 and Academic Freedom

Scholars who support academic freedom as a bedrock principle that universities must uphold are seeing a troubling pattern emerge regarding the use of Zoom as a modality for instruction and academic discourse. The act of adopting Zoom as the preferred infrastructure for disseminating synchronous information to students as well as other scholars was, arguably, the only viable option as universities had to expedite decision-making in order to keep faculty and students safe during the pandemic’s initial outbreak in March. The transition to fall semester distance learning incorporating Zoom in retrospect, seemed inevitable to the point of assumption. And despite outages and screen fatigue as the semester grinds on, academia as a whole would be hard-pressed to even imagine an alternative. Which makes recent troubling events surrounding Zoom, its use by universities and the impact of scholarly debate and teaching, somewhat concerning.

In fact, most of the growing concerns of academics’ use of Zoom coalesce around Zoom’s disinterest in confronting issues of academic freedom. Which isn’t surprising since Zoom was not created for academics but rather for business. Ads a result, Zoom’s terms and conditions provide Zoom with an enormous amount of power and control over who uses their video conferencing and webinar tools. Added to that toxic brew is the emerging reality that Zoom’s security is inadequate to prevent attacks on university virtual classrooms. Consider the following events surrounding Zoom’s willingness to censor and restrict content while at the same time providing insufficient security solutions to prevent trolling and Zoom-bombing aimed at quashing academic ideas:

• In June, Zoom faced enormous backlash for disabling accounts in the US that shared information about democracy protests in Hong Kong as well as events commemorating the 1989 Tiananmen Square Protests; Which is disappointing considering Zoom left the Chinese market in 2010 due to censorship concerns;
• News reports of frequent Zoom-bombings at universities intent on dismantling scholarship surrounding race, gender, sexuality and white supremacy. Universities attacked in this way include several CSU’s, Northwestern, Oklahoma City University, University of Texas, and University of Florida, among others;
• Recent events at San Francisco State University where Zoom prohibited the use of its platform to facilitate an academic panel featuring Leila Khaled, a member of the Popular Front for the Liberation of Palestine, the second largest group that makes up the Palestine Liberation Organization;
• Frequent news reports about the potential for identifying and harming students who are taking classes remotely from countries that have oppressive surveillance and human rights abuses.

Considering all of the above, it’s completely understandable that universities are beginning to express concerns for their students taking classes remotely from China due to the potential for widespread surveillance by the government. Additionally, the threat of Zoom disabling accounts of users or organizations that hold unpopular ideas as well as inadequate security which makes Zoom a potentially dangerous space for scholars working in areas of social justice and equality. Any of these things separately would indicate that the change to instruction over Zoom has significant repercussions for academic freedom. Taken collectively they point to a need for heightened vigilance by universities to ensure Zoom’s presence as the primary vehicle for instruction doesn’t further erode academic freedoms.

An October 8th letter to Zoom (as well as Facebook and YouTube) from the National Coalition Against Censorship, of whom the American Association of University Professors is a member, summarized the gravity and importance of the San Francisco State situation along with Zoom’s inadequate response:

… an American company that truly supports the free and open exchange of thoughts and ideas would not have silenced the San Francisco State panel. Knowing that no precedent exists for punishing an academic forum for allowing a member of a terrorist group to speak, such a company would have hosted the panel and dared the government to come after it. Such a company certainly would not have “played it safe” by canceling the session.

Additionally, in a late September Academe blog post, John Wilson, in response to Zoom’s censorship at San Francisco State, opined:

For those on the left who demand that tech companies censor speech they think are wrong or offensive, this is a chilling reminder that censorship is a dangerous weapon that can be turned against progressives. It’s also a reminder of how vulnerable online learning is under corporate control. All colleges that use Zoom ought to demand that Zoom commit to protecting free expression of academic classes and events on its platform.

The real problem with Zoom and academic freedom is one of locus of control. With Zoom, a corporate actor whose primary raison d’être is revenue, their ‘control’ over what information and ideas are permissible in a scholarly setting is an enormous potential threat to academic freedom. Universities, due to their unique role in collecting, developing and disseminating information in an effort to provide an enriching educational experience for its students by operating in accordance with their own  standards supporting open debate and free expression, should be in the best position to make these decisions. Not a corporation who is primarily motivated to increase profits while preventing liability exposure (as if Section 230 of the Communications Decency Act of 1996 doesn’t provide more than adequate cover) for permitting dissemination of unprotected or unpopular ideas.

Fair use, COVID-19 and Remote Instruction

Fair use has been busy the last few months and the abrupt shift to online instruction last spring was really only the beginning. As academic institutions move into the fall 2020 semester there will be, potentially, more college students learning remotely than face to face. The unprecedented events surrounding covid-19 and the move to online instruction has forced a reckoning of sorts in terms of the expansiveness of fair use in education, especially now when most education is happening virtually.

Using copyrighted materials in classrooms and teaching environments is confusing enough for most academics. The added layer of a pandemic forcing most courses online hastened the realization that copyright law has not successfully adapted to online instruction generally. Fair use specifically has only added to the uncertainty since most of our understanding of it is predicated upon its use in face to face teaching.

Fair use and its application involve an examination of four factors that the courts have used to determine if use of copyrighted materials is indeed permissible:

• the purpose and character of the use
• the nature of the copyrighted work
• the amount and substantiality of the portion used
• the effect of the use upon the potential market

Much of the case law and factual scenarios upon which they are predicated involve issues related to duplication and dissemination. The law surrounding fair use, which existed in the common law since the founding of the republic was codified in 1976 via the Copyright Act of 1976, 17 U.S.C. § 107. At that time the main motivation for clarity in fair use was the threat of cheap duplication by photocopying. Fair use, and the cases that interpreted, applied and construed section 107 of the Copyright Act, was mostly concerned with physical duplication. Fast forward to 2020, a pandemic and online classes featuring digital content and those same four factors seem less clear than ever before.

A group of librarians highlighted this lack of clarity with a Public Statement of Library Copyright Specialists: Fair Use & Emergency Remote Teaching & Research. Their statement reimagines the four factors as providing a stronger and more permissive interpretation of fair use in order to accommodate the unique societal and policy needs of living during the pandemic.

“It is evident that making materials available and accessible to students in this time of crisis will almost always be a fair use. As long as we are being thoughtful in our analysis and limiting our activities to the specific needs of our patrons during this time of crisis, copyright law supports our uses. The fair use doctrine accommodates the flexibility required by our shared public health crisis, enabling society to function and progress while protecting human life and safety.”

Which is consistent with the original common law understanding of fair use as a check on author’s rights when a significant societal need justified it. In other words, concerns about an author’s exclusive rights will always take a back seat to societal needs especially when the use is educational and has little to no impact on the commercial value of the copyrighted material.

Reimagining fair use to broadly facilitate the use of copyrighted materials is also consistent with the history of fair use. Fair use is much more than section 107 of the Copyright Acts. It is predominantly written in the cases that are brought to the courts to consider the specific kinds of factual scenarios where fair use is allowed. That’s an important point: Fair use is not static but is heavily dependent upon the facts surrounding that use. And there are two recent cases that indicate that fair use might be opening up much more widely for educators teaching online.

In Tresóna Multimedia, LLC v. Burbank High School Vocal Music Ass’n (9th Cir. Mar. 24, 2020)the court held that fair use was permissible despite the fact that the copyrighted material was creative (songs), publicly performed by the school choir while using substantial portions of the music, or the so called  ‘heart’ of the copyrighted material. The court based its reasoning primarily upon the educational use and the lack of any definable economic losses on the part of the copyright holders. The interpretation, when viewed broadly, suggests that courts are open to a more expansive view of fair use in educational environments including public performances.

In Tresóna, the 9^th circuit specifically looked to “the limited and transformative nature of the use [of the song by the choir] and the work’s nonprofit educational purposes in enhancing the educational experience of … students.” And while there are no fair use cases to date that define the use of copyrighted content in an online course as transformative per se, the transformative nature of that use is clear, provided of course, that the copyrighted work was not created specifically for an online course.

The same week of the Tresóna decision, the Supreme Court ruled in Allen v. Cooper (US Mar. 23, 2020) that states, and by extension public schools and universities, could not be sued for any copyright infringement due to sovereign immunity. In what was always considered a bit of a weakness in the copyright law, the Copyright Remedy Clarification Act (“CRCA”), 17 U.S.C. § 511 (1990), was passed by congress as a means to provide clarification for those prosecuting a claim of infringement. One of the main ‘loopholes’ eliminated by the CRCA was language that prevented states from raising sovereign immunity as a defense when sued for copyright infringement. Allen ruled that barring states from claiming sovereign immunity in the context of copyright infringement was unconstitutional. And while this decision wasn’t necessarily fair use  related, the reaction was definitely a product of our times and the pandemic. In normal circumstances you would be reasonable in the expectation that Congress would fix the situation with a constitutionally acceptable means of disallowing sovereign immunity as a defense to copyright infringement.  In reality nothing like that has happened nor is it likely to in the year ahead.

All of this taken together suggests that fair use in educational environments is likely to expand even further as a result of the Tresóna and Allen decisions. The 9^th Circuit’s finding in Tresóna of inherent ‘tansformativeness’ when using copyrighted content in educational environments along with the Supreme Court’s decision in Allen barring state schools from any claim of infringement based upon sovereign immunity, will no doubt open the proverbial Pandora’s box or send us down the slippery slope, depending upon your preferred metaphor. And if there’s one thing we know about jurisprudence in America, once a right is given the courts are loathe to take it away. And right now the rights given to educators by these two cases are quite substantial.

If you’d like to learn more about copyright in online teaching environments self-enroll in the Institute for Research and Information Studies’ online self-paced course on Copyright and Information Ethics.