“For digital transmissions, Section 110 trumps fair use. If a use does not qualify for 110 protection, it cannot be a fair use.” This may be the most harmful notion that circulates in debates over educational use of films. It is also the most demonstrably false. During the drafting of the TEACH Act, which modified Section 110(2) to allow digital streaming, the Register of Copyrights prepared a report that urged Congress to include key points about fair use in the legislative history of the statute. The Conference Report on the TEACH Act did just that, quoting the Register’s conclusion that, “Fair use could apply as well to instructional transmissions not covered by the changes to section 110(2)….” Congress clearly had no intention of preempting fair use when it enacted 110(2). On the contrary, legislative history and subsequent analysis show Congress intended for fair use to fill in the gaps where the specific exception may not apply.8 “If a video is marketed for educational use, it cannot be transmitted digitally under 110(2).” This legend expands the exception in the law far beyond its plain meaning. The TEACH Act does not allow transmission of works “produced or marketed primarily for performance or display as part of mediated instructional activities transmitted via digital networks.” Many works are produced or marketed to some extent for educational use in some contexts. Productions of Shakespeare’s plays filmed by the BBC, for example, are commonly sold to high schools and colleges for showing in literature classes. But to be excluded from the 110(2) educational provision, a work must be produced or marketed primarily for digital distance education. The vast majority of feature films simply do not have such a targeted audience. If the work is marketed primarily for commercial audiences, or for face-to-face educational use, repurposing it for digital distance education is precisely what 110(2) is meant to allow. Conclusion Copyright law can be confusing, but the proliferation of misinformation and misstatements about copyright has made rational discussion considerably more difficult, not to mention chilling beneficial behavior. Hopefully bringing some popular misconceptions to light will help clear the way for a calmer, more reasonable discussion of these issues. RLI 270 19 Urban Copyright Legends ( C O N T I N U E D ) JUNE 2010 RESEARCH LIBRARY ISSUES: A BIMONTHLY REPORT FROM ARL, CNI, AND SPARC