Scenario:
An instructor wants to create a copy of a documentary and post it to her password-protected course website for download.

Response:
In the face-to-face classroom setting this situation is clearly allowable under the provisions of Section 110(1) in U.S. copyright law. However, until the University meets all of the policy requirements of the TEACH Act instructors can only look to the provisions of fair use when working with media in the online teaching environment.

In this case the instructor would conduct a four factor fair use analysis to determine whether this is an allowable use. The circumstances weigh against fair use. Though the purpose is educational and the nature of this documentary film may be factual, the amount (the entire film) and the market effect (students will download the film and thus be able to keep their own copy) tip the balance of the four factors away from fair use. Use of the entire film may be critical to the educational purpose but by downloading the entire film each student becomes part of a distribution of the film that very likely has a negative market effect which cannot be ignored.