Digital Learning Legal Background Paper

Digital Learning Legal Background Paper The TEACH Act: The Impact of Copyright and Compromise on Digital Distance Education1

Introduction

In 2001, the Technology, Education and Copyright Harmonization (TEACH) Act amended Section 110(2) of the copyright statute, redefining privileges of educators—specifically, online distance educators—in response to concerns that the law was limiting online educators’ ability to teach their students. As originally enacted in 1976, Section 110(2) was seen to provide exemptions sufficient to “cover all of the various methods by which performances or displays in the course of systematic instruction take place.”2 However, development of digital methods for distance education by the end of the 20th century strained Section 110(2), which had been enacted when closed-circuit television and radio were the only means of such distance learning.3 The 1976 version of Section 110(2) authorized:

performance of a nondramatic literary or musical work or display of a work, by or in the course of a transmission, if — (A) the performance or display is a regular part of the systematic instructional activities of a governmental body or a nonprofit educational institution; and (B) the performance or display is directly related and of material assistance to the teaching content of the transmission; and (C) the transmission is made primarily for -- (i) reception in classrooms or similar places normally devoted to instruction, or (ii) reception by persons to whom the transmission is directed because their disabilities or other special circumstances prevent their attendance in classrooms or similar places normally devoted to instruction, or (iii) reception by officers or employees of governmental bodies as a part of their official duties or employment.

While permitting displays of all works, Section 110(2) permitted performances only of nondramatic literary or musical works, thus providing no exemption for projection of films or performance of plays in the course of distance education.4 Furthermore, the exemption restricted where transmission could be received, and by whom: recipients, if not subject to “special circumstances” preventing their physical attendance of class, had to have been located in a physical classroom or similar place of instruction.5 As written, then, Section 110(2) had only limited application to digital distance education.6 In response to indications of its being outdated and inapplicable to current technologies, the Copyright Office proposed changes in April 1998, submitting initial recommendations to congressional committee leaders.7 Though the proposed changes were not accepted, the Copyright Office’s proposal for a study of the legal issues involved in digital distance education was accepted and incorporated into Section 403 of the Digital Millennium Copyright Act (DMCA), 8 which charged the Copyright Office with conducting a study of digital distance learning and its intersection with copyright law.9 History and Background

The DMCA was enacted into law on October 28, 1998.10 Section 403 of that act required that the Copyright Office consult with interested parties—educational institutions and libraries, copyright holders and their representatives—and submit to Congress a report suggesting methods of supporting distance education while respecting the interests of copyright holders.11 The Register of Copyrights solicited comments and held public hearings throughout 1999.12 In the nearly 200 comments and reply-comments received by the Register,13 interested parties appealed to common themes. In support of greater exceptions for distance education, many educators, librarians and universities urged a broadening of the exemptions of Section 110(2). Likewise, in support of greater protections for copyright holders, record companies, publishers and writers urged the Office to resist limiting rights.14 Namely, representatives of copyright holders generally noted:

. dangers posed to copyright holders by digital piracy;15 . the functionality of the existing system and lack of need for new exemptions;16 . the efficiency and success of licensing systems and arrangements;17 . negative impacts on creation of copyrighted works and dissemination to educators that weakened rights would have;18 and . the inadequacy of technological means of limiting access and protecting against copying of online materials.19

On the other hand, representatives of universities, libraries, and online learning institutions generally noted:

. the inadequacy and out-datedness of the existent regime, given the expansion of distance-education practices beyond closed-circuit television;20 . chilling effects of difficult and unequal licensing negotiations with copyright holders;21 . the availability of reasonable technological barriers to unauthorized access and copying;22 . the inadequacy or unreliability of current fair use doctrines to protect educators.23

Additionally, parties representing various interests expressed concern about accreditation and quality of online learning programs, particularly in light of their profitability.24 Ultimately, on the basis of these comments and independent research, the U.S. Copyright Office presented a “Report on Copyright and Digital Distance Education” to Congress in May of 1999, in which the office recommended several changes to sections 110(2) and 112 of the Copyright Act.25 Specifically, the Copyright Office noted the following problems with the previous Section 110(2) as it applied to digital distance education:

. Digital transmission of educational works “involves multiple acts of reproduction, and often distribution, which are not covered by section 110(2). Therefore, even if the performance and display were exempted, these digital transmissions would result in an infringement unless the accompanying acts of reproduction and distribution were otherwise authorized.”26

2 . While students taking distance courses because of hindrances caused by employment, geography or childcare might fit into the Section’s definition of “special circumstances,” a majority of students taking distance classes would not—and, as such, copyrighted works transmitted to them in a non-classroom setting would not be exempted from protection.27

The Report sought to achieve a “balance of interests between copyright owners and users of works” and suggested that “updating section 110(2) to allow the same activities to take place using digital delivery mechanisms, while controlling the risks involved, would continue the basic policy balance struck in 1976.”28 Thus, the Copyright Office made the following recommendations for change of Section 110(2):

a) Clarify meaning of “transmission”; b) Expand coverage of rights to extent technologically necessary; c) Emphasize concept of mediated instruction; d) Eliminate requirement of physical classroom; e) Add new safeguards to counteract new risks; f) Maintain existing standards of eligibility; g) Expand categories of works covered; h) Require use of lawful copies; and i) Add a new ephemeral recording exemption.

The Copyright Office summarized and explained these recommendations:

Specifically, we recommend updating section 110(2), the exemption for instructional broadcasting, to allow the same types of performances and displays it currently permits to be delivered by means of digital technologies, and received by students in remote locations, whether or not in a physical classroom. In addition, we suggest that the exemption be broadened to permit certain limited performances of categories of copyrighted works not covered by its current language. At the same time, in order to maintain an appropriate balance between the rights of copyright owners and the needs of the educational community, we recommend that the expansion of the exemption be accompanied by the incorporation of a number of safeguards to control the risks of unauthorized dissemination and ensure the continued effectiveness of the existing restrictions in the statute.29

These policy concerns and recommendations ultimately form the foundation for the 2002 TEACH Act, which substantially incorporated the Copyright Office’s study and recommendations into Section 110(2) in order to better serve the digital distance education market while recognizing the continued interests of copyright holders in protecting the markets for their works.

3 The TEACH Act

The TEACH Act, as first introduced in March 2001, was modeled directly on the Copyright Office’s study. However, copyright owners perceived the bill as overly educator- friendly and persuaded legislators that the alteration of rights would significantly harm the market for their works.30 The Senate encouraged interested parties to themselves negotiate and propose alterations to the bill. Through these negotiations, several aspects of the original bill were modified—adding, among other provisions, a requirement that institutions use technological precautions against downstream piracy.31 On June 7, 2001, S. 487—the bill preceding the TEACH Act—having been developed through extended discussions among stakeholders, was passed by the full Senate.32 Held up for some time both by interested parties33 and by the events of September 11, 2001, it was ultimately incorporated into H.R. 2215—the 21st Century Department of Justice Appropriations Authorization Act—and signed into law by President Bush on November 2, 2002.34 The new text of 110(2), amended by the TEACH Act,35 defines the following as not an infringement to copyright:36

except with respect to a work produced or marketed primarily for performance or display as part of mediated instructional activities transmitted via digital networks, or a performance or display that is given by means of a copy or phonorecord that is not lawfully made and acquired under this title, and the transmitting government body or accredited nonprofit educational institution knew or had reason to believe was not lawfully made and acquired, the performance of a nondramatic literary or musical work or reasonable and limited portions of any other work, or display of a work in an amount comparable to that which is typically displayed in the course of a live classroom session, by or in the course of a transmission, if-- (A) the performance or display is made by, at the direction of, or under the actual supervision of an instructor as an integral part of a class session offered as a regular part of the systematic mediated instructional activities of a governmental body or an accredited nonprofit educational institution; (B) the performance or display is directly related and of material assistance to the teaching content of the transmission; (C) the transmission is made solely for, and, to the extent technologically feasible, the reception of such transmission is limited to-- (i) students officially enrolled in the course for which the transmission is made; or (ii) officers or employees of governmental bodies as a part of their official duties or employment; and (D) the transmitting body or institution-- (i) institutes policies regarding copyright, provides informational materials to faculty, students, and relevant staff members that accurately describe, and promote compliance with, the laws of the United States relating to copyright, and provides notice to students that materials used in connection with the course may be subject to copyright protection; and (ii) in the case of digital transmissions-- (I) applies technological measures that reasonably prevent-- (aa) retention of the work in accessible form by recipients of

4 the transmission from the transmitting body or institution for longer than the class session; and (bb) unauthorized further dissemination of the work in accessible form by such recipients to others; and (II) does not engage in conduct that could reasonably be expected to interfere with technological measures used by copyright owners to prevent such retention or unauthorized further dissemination.

The revised Section 110(2) thus expands protections for distance educators, provided that institutions meet statutory eligibility requirements and provide adequate technological protections and access controls for transmitted materials (as defined in Sections 110(2)(C) and (D)). Specifically, as suggested by the Copyright Office, the new Section 110(2) expands the range of allowable works (excluding only instructional materials and illegal copies), eliminates the classroom requirement, allows short-term recording and retention of copied works and allows digitization of analog works. In exchange, in order to protect copyright holders’ interests, institutions of distance education must meet eligibility requirements (qualifying as a “government body or accredited nonprofit educational institution”), institute a copyright policy about which it informs its students, provide notice to students of the copyrighted nature of instructional works, and limit transmission to enrolled students.37 Institutions must also make use of technologies to limit unauthorized copying.

Impacts, Reactions and Expectations

The TEACH Act and the revised Section 110(2) are products of compromise between competing interests of copyright holders, concerned with protecting against leakage of their content, and educators, concerned with legal barriers to using copyrighted information in the increasingly important context of distance learning that is “remov[ing] the concept of the physical classroom.”38 Though legislators and the Copyright Office attempted to maintain the “balance” said to have been achieved in the 1976 Act, some have suggested that this balance has been tipped slightly in favor of educators.39 Some critics have also noted that the compromises which gave fruit to the TEACH Act have limited its effectiveness. As one such commentator writes: Many of the compromises made during the legislative process have limited the effect of the legislation. In some cases, the negotiating parties incorporated such limits into the Act itself--restricting the performances and displays of works that are not nondramatic literary or musical works to reasonable and limited portions of those works. However, in many cases the limiting effects of the TEACH Act arguably were unintended. For example, because the TEACH Act requires institutions to "reasonably prevent" unauthorized retention and dissemination of the copyrighted works that they use for online education, some institutions, which either do not know what they must do to meet this requirement or cannot afford to meet it, will choose not to rely on the legislation. Still other limitations are the result of societal or market forces. These limiting factors include many educators' lack of interest in using the expanded types of copyrighted works that the TEACH Act authorizes and the fact that many providers of online education do not qualify as accredited nonprofit educational institutions and are therefore ineligible to take advantage of the TEACH Act.40

5 Likewise, the effect of the Act has been limited by its requirement that institutions be non-profit and accredited, as many online educators are for-profit or not accredited.41 David Nimmer has characterized the Act as having “all the hallmarks of arcane amendments for specialized areas that have preceded it” and as “lacking national significance.”42 Yet whether the TEACH Act ultimately will achieve its goals—maintaining a balance between interests of copyright holders and educators, encouraging the expansion of digital distance learning while maintaining adequate protection for the markets of copyrighted materials —has yet to be functionally assessed. As the boundaries of the new Section 110(2) are tested in courts,43 as educators become more aware of its provisions, as digital distance education further expands, and as copyright owners to assess changes in their markets attributable to the expanded privileges of 110(2), the impact of the Act will become clearer, and interested parties may assess whether their compromises have proven fruitful or futile.

6 1 Notes

This legal background paper was produced as part of the Digital Learning project by the Berkman Center for Internet and Society at Harvard Law School. Primary research and drafting was conducted by Harvard Law student Ashley Aull. This work is licensed under a Creative Commons Attribution/Non-Commercial/ShareAlike License, as explained further at http://creativecommons.org/licenses/by-nc-sa/2.5/. 2 H.R. Rep. No. 94-1476, at 81 (1976). 3 Supplementary Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law: 1965 Revision Bill, Pt. 6, House Comm. On the Judiciary, 89th Cong., 31 (Comm. Print 1965). See also Report on Copyright and Digital Distance Education, http://www.copyright.gov/reports/de_rprt.pdf at 77 (hereinafter “Report on Copyright and Digital Distance Education”) (last visited October 16, 2005). 4 Report on Copyright and Digital Distance Education, supra note 2 at 78. 5 Id. at 81. 6 Id. at 82-83. 7 Id. at 122. 8 Id. at 122-125. 9 See infra note 10. 10 Pub. L. No. 105-304, 112 Stat. 2860 (1998). 11 Section 403 reads: (a) Recommendations by Register of Copyrights.—Not later than 6 months after the date of the enactment of this Act, the Register of Copyrights, after consultation with representatives of copyright owners, nonprofit educational institutions, and nonprofit libraries and archives, shall submit to the Congress recommendations on how to promote distance education through digital technologies, including interactive digital networks, while maintaining an appropriate balance between the rights of copyright owners and the needs of users of copyrighted works. Such recommendations shall include any legislation the Register of Copyrights considers appropriate to achieve the objective described in the preceding sentence. (b) Factors.—In formulating recommendations under subsection (a), the Register of Copyrights shall consider— (1) the need for an exemption from exclusive rights of copyright owners for distance education through digital networks; (2) the categories of works to be included under any distance education exemption; (3) the extent of appropriate quantitative limitations on the portions of works that may be used under any distance education exemption; (4) the parties who should be entitled to the benefits of any distance education exemption; (5) the parties who would be designated as eligible recipients of distance education materials under any distance education exemption; (6) whether and what types of technological measures can or should be employed to safeguard against unauthorized access to, and use or retention of, copyrighted materials as a condition of eligibility for any distance education exemption, including, in light of developing technological capabilities, the exemption set out in section 110(2) of title 17, United States Code; (7) the extent to which the availability of licenses for the use of copyrighted works in distance education through interactive digital networks should be considered in assessing eligibility for any distance education exemption; and (8) such other issues relating to distance education through interactive digital networks that the registrar considers appropriate. 12 Report on Copyright and Digital Distance Education, supra note 2. 13 A complete list of submitted comments and reply comments, many with full-text available online, is available at http://www.copyright.gov/disted/comments.html and http://www.copyright.gov/disted/reply. 14 For an excellent summary of interested parties’ contentions, see the Report on Copyright and Digital Distance Education, supra note 2, at 127-140. 15 See, e.g., Comment of the American Society of Journalists and Authors, http://www.copyright.gov/disted/comments/init007.pdf at 1-2 and 4; Comment of the Motion Picture Association of America (“MPAA”), http://www.copyright.gov/disted/comments/init022.pdf at 4 (“MPAA supports the right of APA and other copyright owner interests to present evidence that greater protections are necessary to stimulate the production and dissemination of works necessary to carry out effective distance education activities, and urges the Copyright Office to give such evidence the same consideration given to calls for limitations on copyrights”); Comment of the Recording Industry Association of America, http://www.copyright.gov/disted/comments/init023.pdf at 2. 16 See, e.g., Comment of the American Society of Journalists and Authors, supra, at 5 (“A distance education exemption at this time would wreak havoc on the economic interests of copyright owners.”); Comment of the MPAA, supra, at 2 (“The mere fact that technological advances have occurred, however, is not evidence that changes in the copyright law are necessary.”); Comment of the RIAA, supra, at 2; Comment of Time Warner, http://www.copyright.gov/disted/comments/init050.pdf at 1 (“[N]o one suggested that any request to use copyrighted material in a distance learning context had been refused or subjected to onerous terms; no one suggested that anything in the current Copyright Law had resulted in a prevention or inhibition of distance learning; no one suggested that copyright owners were interested, so far as distance learning is concerned, in anything other than encouraging it both because of its social benefits as well as its potential business benefits. In short, no reason was offered to modify extant copyright protections.”); Comment of the American Society of Composers, Authors and Publishers (ASCAP), http://www.copyright.gov/disted/comments/init035.pdf at 2-3 (“Based on ASCAP’s understanding of the distance learning field, there appears to be no genuine problem or any harm that could be remedied by expanded exemptions or even regulations.”) 17 See, e.g., Comment of the Copyright Clearance Center (CCC), http://www.copyright.gov/disted/comments/init026.pdf at 14 (“the best protections for copyrighted materials are simple and convenient licensing systems” and “licensing in these environments is not only possible [and desirable to both rights holders and users], but is already in place.”); Comment of McDougal Littel Publishers, http://www.copyright.gov/disted/comments/init059.pdf at 3 (“Like all major publishers, McDougal Littel already has an effective system in place for granting teachers permission for limited use of copyrighted material in an electronic format…The process is quick and straightforward.”); Comment of ASCAP, supra, at 25-26. 18 See, e.g., Comment of McDougal Littel Publishers, supra, at 1 (“the exemption would have the exact opposite effect [than expected] and in fact would decrease the quality and variety of materials available to teachers and students.”); Comment of ASCAP, supra note X, at 3 (“an expansion of the existing exemptions would impair that goal by stalling or even de-railing the distance learning train, harming copyright owners and the intended beneficiaries of distance education, alike.”) 19 See, e.g., Comment of Time Warner, supra note X at 3; Comment of ASCAP, supra note X at 18- 19. 20 See, e.g., Comment of the Association of American Universities et al., http://www.copyright.gov/disted/comments/init031.pdf at 1-2 (“changes in copyright law will be necessary to fully exploit these new capacities” and “[t]he current 110(2) exemptions are based on technologies extant more than two decades ago. These exemptions need to be updated to accommodate the expanded educational opportunities supported by new technologies.”); Comment of the Association of American Universities et al., http://www.copyright.gov/disted/comments/init044.pdf at 2-3; Comment of the University of Michigan, http://www.copyright.gov/disted/comments/init014.pdf at 5. 21 See, e.g., Comment of the Corporation for Public Broadcasting, http://www.copyright.gov/disted/comments/init005.pdf at 9-11; Comment of the Association of American Universities et al., supra, at 4 (“Requiring licensing of lawfully acquired material that institutions may only want to display or perform could prove to be an economic burden on some institutions, and a transactional burden on all. More fundamentally, the power to license is the power to determine the terms of use and ultimately, the power to deny access to information, too great a shroud to place over distance education.”); Comment of the Association of Research Libraries et al., http://www.copyright.gov/disted/comments/init048.pdf at 5 (“The mere availability of license agreements by no means negates the need for a reaffirmation of congressional policy with regards to access to educational materials, locally and at a distance. Absent reform, current law leaves those in distance education at a disadvantage negotiating licenses.”); Comment of the Association of American Universities et al., supra note X at 4 (“These necessary components of the educational experience will not be feasible in the digital environment if educators must seek separate permission every time they want to perform or display instructional material in a temporary format. Without such an exemption, the transaction costs of seeking permission for every performance or display of works owned by others can impose an intolerable burden on teachers and students.”); Comment of the University of Texas, http://www.copyright.gov/disted/comments/init020.pdf at 6; Comment of the University of Michigan, supra note X, at 3; Comment of the University of North Carolina at Chapel Hill, http://www.copyright.gov/disted/comments/init012.pdf at 6; Comment of the University of Montana, http://www.copyright.gov/disted/comments/init010.pdf at 18. 22 Comment of Professor Michael Tanner, http://www.copyright.gov/disted/comments/init040.pdf at 3-4; Comment of the University of Michigan, supra, at 4; Comment of the University of North Carolina at Chapel Hill, supra, at 8. 23 Comment of the University of Texas System, http://www.copyright.gov/disted/comments/init020.pdf at 5 (indicating that the University seeks licenses for all copyrighted material, for lack of confidence in protections provided by fair use; Comment of the University of Montana, supra, at 20. But see Comment of the University of North Carolina at Chapel Hill, supra, at 5-6 (indicating that the university encourages professors to take advantage of the fair use doctrine for one-time or first uses of copyrighted material.) 24 See Comment of ASCAP, supra note X, at 11-18 (describing the market for distance education programs). See also Comment of the American Association of University Professors, http://www.copyright.gov/disted/comments/init038.pdf at 4-8 (expressing concerns about accreditation and quality of distance education programs). 25 Report on Copyright and Digital Distance Education, supra note 2. 26 Id. at 83. 27 Id. at 84. 28 Id. at xv. 29 Id. at 7. 30 Kristine H. Hutchinson, The Teach Act: Copyright Law and Online Education, NEW YORK UNIVERSITY LAW REVIEW 2204, 2218. 31 Id. at 2222. 32 In his statement issued on May 17, 2001 to the Senate Judiciary Committee, Senator Leahy acknowledged that, pursuant to criticisms of the Copyright Office’s Report on Digital Distance Education made by copyright holders, “[w]e have made efforts in this substitute amendment to address the valid concerns of both the copyright owners and the educational community.” Statement of Senator Patrick Leahy on the TEACH Act, S. 487, available at http://judiciary.senate.gov/oldsite/pjl051701es487.htm (last accessed October 16, 2005). Likewise, in his statement, Senator Orrin G. Hatch noted the influence of “the software industry, the publishers, the educators and librarians, the motion picture studios, the recording and music industries, the information technology and communications companies” on revisions of the Bill. Statement of Senator Orrin G. Hatch on the TEACH Act, S. 487, available at http://judiciary.senate.gov/oldsite/ogh051701es487.htm. 33 While the bill was held up in the Senate and House Judiciary Committees, one commentator noted, somewhat pessimistically: While debates regarding the TEACH Act continue, nothing in its form or an amendment of the Act has been passed by both houses. As the legislative history has shown, distance learning is a growing debate for the legislature. It is unclear what Congress will finally do about this ever-changing field, or whether it is simply waiting and hoping for some kind of compromise similar to the compromise reached in the Guidelines for Classroom Copying. What is known, however, is that the parties involved clearly recognize that the copyright law, as written, does not neatly apply to distance education as we currently know it, or as technology will someday allow. The inescapable truth is that the Copyright laws, as written today, do not incorporate appropriate consideration of the technology available today and the likely advancements of the future. Congress has begun the debate over the changes that need to take place, the first step has been forged, and changes do seem to be on the horizon. Nevertheless, the sixty-four thousand dollar question still remains: When will these changes take place, and will they adequately protect and foster distance learning? Euegene R. Quinn, Jr. and Michelle Beveridge, Legal Issues in Building Course web Sites: Copyright Law for Academics, Hamline Law Review Fall 2002, at 130. It appears that some educational institutions, awaiting the legislative process, lost hope and developed alternative strategies: At the time of the writing of this article, the recent effort to amend Section 110(2) appears to have stalled. In the absence of an amendment to Section 110(2), educational institutions have begun to develop copyright use policies that deal with the realities of the current statute and attempt to advise members of the academy when to seek permission, how to ask for it and how to acquire licenses to perform copyrighted works for digital distance learning. Additionally, colleges and universities are developing formal mechanisms for advising faculty on copyright issues. For example, many of them maintain websites that provide advice in the form of guidelines or best practices along with material aimed at educating the campus community about copyright. Institutions are also finding it necessary to provide informational support for licensing copyrighted works for performance in distance education. There has been some interest in looking again at fair use guidelines although many of the education and library associations involved in the Conference on Fair Use continue to oppose guidelines. Laura N. Gasaway, Distance Learning and Copyright: An Update, Journal of the Copyright Society of the U.S.A., Fall 2001, at 196. 34 Thomas A. Lipinski, Legal reform in an Electronic Age: Analysis and Critique of the Construction and Operation of S.487, the Technology, Education and Copyright Harmonization (TEACH) Act of 2001, BRIGHAM YOUNG UNIVERSITY EDUCATION AND LAW JOURNAL 95, 97. http://www.ala.org/Template.cfm? Section=distanceed&Template=/ContentManagement/ContentDisplay.cfm&ContentID=25939#hist 35 Act Nov. 2, 2002, P.L. 107-273, Div C, Title III, Subtitle C, § 13301, 116 Stat. 1910. 36 117 U.S.C.S. 110(2) (2005). 37 For an enthusiastic analysis of the changes, and an enumeration of their requirements and effects, see Keith C. Crews, “Distance Education and the Teach Act,” The American Library Association, at http://www.ala.org/Template.cfm? Section=distanceed&Template=/ContentManagement/ContentDisplay.cfm&ContentID=25939#new c (last visited October 16, 2005). Likewise, for a clear and informative table indicating differences between the old- and new- 110(2) exemption, see http://www.unc.edu/~unclng/TEACH.htm (last visited October 16, 2005). 38 Lipinski, supra note X at 120. 39 See “Distance Education and the Teach Act,” supra. See also Hutchinson, supra note 29, at 2207 (“the TEACH Act is likely the most educator-friendly legislation that Congress will produce in the near future”). 40 Id. at 2207. 41 Id. at 2225. 42 David Nimmer, Codifying Copyright Comprehensibly, 51 UCLALR 1233, 1312 (June 2004). 43 Hutchinson, supra note 29 at 2238-39, argues that many educators may not understand the requirements or meaning of the statute, and furthermore that institutions may be wary of relying too heavily upon its protections while many of its terms—left undefined—have yet to be tested in courts. She notes, however: By setting guidelines for terms such as "reasonable and limited" and for what constitutes technological protection measures that "reasonably prevent" unauthorized retention and dissemination of copyrighted works, educational institutions can help clarify what these terms mean for the educational community as a whole. UMUC, for example, plans to allow some online educators to test the boundaries of the TEACH Act by using video clips in their courses, while delaying full implementation of the Act until those boundaries are further clarified. If educational institutions with greater resources and a substantial commitment to online education, like UMUC, follow similar implementation strategies, they can minimize the risks to themselves while securing a substantial benefit for all educational institutions offering online courses.