Forget About Being Taped…

Are You Being YouTubed? Inside Higher Ed reports on the growing phenomenon. I enjoyed the discussion on Mike’s related post, but I wonder if those who defend students’ right to tape lectures would include this type of recording?

IP issues aside, I have trouble with it because of the potential decontextualization that can result from this sort of unauthorized surveillance. As Helen Nissenbaum suggests in Privacy as Contextual Integrity, a classroom lecture is meant to be watched as a whole–not to be broken down into, say, its most embarrassing (or even enlightening) parts.

Would I give the same right to performers? Say, to a musician who doesn’t want her songs parodied and puts a shrinkwrap license on CD’s to prohibit buyers from doing so? I think one can draw a principled line between performances and recordings. The performance should remain a space of improvisation and spontaneity, and the privacy protections needed to keep it that way ought to be respected. But the authorized recording is presented to the world as a finished product, and I’d approach shrinkwrap restrictions on it with my usual skepticism about the desirability of wholly-privately-crafted IP rules.

2 thoughts on “Forget About Being Taped…

  1. Well, I think those students are being very disrespectful and it’s not something I thing they *should* do…

    …but… if the University owns the content of the lecture, and allows the students to record it, why can’t they You Tube parts as parody or clips as fair use? It would seem if they shared the whole video, there would be a clear copyright violation. But if they just share a clip–couldn’t it fall under fair use (depending on length, etc, obviously). And if they manipulate it into parody, isn’t that protected under the 1st Amendment?

    I’m sure many performers (artists, musicians, etc.) would love to never have their work taken out of context and parodied, but we allow that. Why is this different?

    I think there might be an IP problem with this sort of thing, but privacy? Again, what is the real expectation of privacy in a lecture hall with 150 students?

  2. I think that Frank is on to something in distinguishing between performances and recordings, though I’m not as sure that there’s a *principled* line to be drawn. The *conceptual* line is that there is an unmistakeable and distinctive spatial element to the performance, and recording and distributing all or some of the performance disturbs that spatiality. How much *legal* weight that observation should carry isn’t clear to me, but I think that it’s an important observation. We live in a 3D (and sometimes 4 and more D) world, but law is usually a 2D domain. So real world spatiality is often underappreciated as a feature of both IP and privacy law. For more, read Julie Cohen’s recent work.

    Update: And along the same lines, take a look at this post by Rebecca Tushnet.< /a>

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