If you are employed by a public university in a USA State for which
your university is an Act of State (e.g., me at UNO), then Amendment XI
kicks in.  Both Fair Use and sovereign immunity shield your not for profit
classroom use more broadly than mere ordinary Fair Use (i.e., nature of the
work, purpose of the use, substantiality of the copying, and effect on the
market).

      However, be forewarned.

      First, Fair Use is a question of fact.  It is a safe harbor open the
forces from the ocean.

      Second, while the copyright holder may lack standing to sue you in a
court of competent jurisdiction, and even if the copyright holder has
standing to sue and your defense of Fair Use is a good defense, you still
might get fired.

      Many, but far from all, universities who rightfully can and may
successfully claim either sovereign immunity and/or Fair Use have expressly
instructed all of the university employees to respect the copyrights of
others regardless of that sovereign immunity and regardless of the outer
reaches of Fair Use.

      There are at least two managerial motives for this instruction:  risk
management and teaching ethics.

      With respect to risk management, especially in organizations
populated by extraordinarily creative and impendent employees, the wise
manager pushes the employees away from the outer reaches of feasible
authority so that after those employees (predictably) have ignored the
manager the Board still can successfully avoid liability.

      With respect to teaching ethics, it is quite difficult to inculcate
students with respect for copyright (e.g., plagiarism) and even more
difficult to inculcate students with ethics.  Modeling the behavior of
refraining from aggressive exercise of rights because it is moral even if
it also is more expensive is a good teaching tool.

      Make a list of copyrighted items you have used in class or which you
plan to use in your class.  Send a copy to your campus CEO (e.g.,
Chancellor).  Indicate you are committed to excellence in education and
believe these items are necessary tools for that task.  Indicate that these
tools might or might not require obtaining approval from the copyright
owners.  Indicate that you understand you do not have the authority to bind
the institution in copyright negotiations.  Ask the CEO to transfer the
list to the administrator with the duty to negotiate copyright approvals
and the authority to bind the institution.

      Be nice.  Send this email in February or March for a fall class.

      Of course, your institution does not have an administrator with those
duties and that authority.  But, that is the whole point of the email.

      Ethically, are you, as a faculty member, obligated to do more than
put the CEO on notice and thus assure yourself that the institution's E&O
insurance policy covers your classroom use, and triggers that insurer's
duty to defend you?

Michael

Professor Michael J. O'Hara, J.D., Ph.D.
Finance, Banking, & Law Department        Editor, Journal of Legal
Economics
College of Business Administration        (402) 554 - 2014 voice fax (402)
554 - 3825
Roskens Hall 502                    www.AAEFE.org
University of Nebraska at Omaha           www.JournalOfLegalEconomics.com
Omaha  NE  68182
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(402) 554 - 2823 voice  fax (402) 554 - 2680
http://cba.unomaha.edu/faculty/mohara/web/ohara.htm