Fair Use or Fair Game: The (Distance) Educator’s Dilemma

During (and after) the lockdowns of the Covid-19 pandemic, educational communities have employed distance education to reach their students. However, not all districts are aware of the legal requirements of using instructional materials in a virtual setting. In recognition of the growth of virtual learning environments, Congress passed the Technology, Education and Copyright Harmonization (TEACH) Act in 2002 with the goal of redefining the circumstances and rules under which nonprofit and educational institutions might digitally use copyright protected materials. For districts exploring or expanding opportunities in distance education, understanding the laws that pertain to the use of digital, copyrighted materials is of critical importance. This article explores and explains these requirements for policymakers, site and district leadership, and classroom instructors.

In the winter of 2019, attorneys for the Houston Independent School District (HISD) found themselves in federal court (DynaStudy, Inc. v. HISD, 2017). They were finalizing their defense of the district against charges of infringement in violation of the Copyright Act and the Digital Millennium Copyright Act (17 U.S.C. § 501 et seq and § 1201 et seq.).  

After a three-year legal battle, a federal jury found in favor of the DynaStudy textbook publisher in May of 2019 and awarded them $9.2 million to be paid by the district. The HISD appealed the verdict, and the parties agreed to $7.8 million as a final settlement of the case in October 2019 (Carpenter, 2019). 

The examples of violations were egregious. They included cutting off the copyright warning from a study guide and then making multiple copies to share around the district as well as using a sticky note to hide the admonition against making copies. One teacher used white tape to “hide copyright warnings on an eighth-grade science guide, then circulated the document more than 50 times over two years” (DynaStudy, Inc. v. HISD, 2017).