chose not to allege contributory infringement, so remote storage DVR has not yet led to any liability.[1]
Institutional recording in libraries or schools is a very different story. Take, for example, Encyclopedia Britannica Educational Corp. v. Crooks,[2] where a federal district court held that extensive and systematic off-air taping of educational programs, even for non-profit educational purposes, was infringing. In this case, a non-profit organization funded by nineteen school districts offered a videotaping service for schools. The Videotape and Instructional Television Service (VITS) had a nine-person staff, and a library holding 4,500 videotaped television programs. VITS was able to produce sixty videotape copies of a single program in a twenty-four-hour period, and they transmitted about 14,000 programs to schools in the 1976–77 academic year. Each school could keep the tapes. Jerry Lee Lewis might have sang that there was a whole lot of tapin’ goin’ on.
Not surprisingly, the court concluded that this “highly organized and systematic practice of making off-the-air videotapes of plaintiffs’ copyrighted works for use in later years and the making of numerous derivative copies of plaintiffs’ copyrighted works does not constitute fair use… .” Even though the defendant was a non-profit educational organization, the court reached the right decision.
This case does not mean that you can never tape programs for educational purposes. You can find some guidance in the Guidelines for Off-Air Recording of Copyrighted Works for Educational Use,[3] which were developed by representatives of content producers, educators, and librarians. The negotiations were coordinated by the House Judiciary Committee and the Guidelines were published in the Congressional Record. But they were not been enacted by Congress, and are not law.
A few things about the Guidelines. First, they apply to non-profit educational institutions. A school or academic library that helps its parent institution meet its instructional needs certainly qualifies. But a for-profit library, such as one in a corporation or law firm, does not come within the Guidelines, and neither does a city or county public library unless it is part of an educational institution. Second, the Guidelines apply to programs
