To Post or Not to Post? YouTube Issues, Part 1

Despite YouTube’s Popularity with School-Age Youth, Teachers Should Think Twice Before Asking Students to Upload Class Projects to YouTube

Several studies have reported that YouTube is the most popular social media site among teenagers. Some studies and articles report teens and “tweens” prefer YouTube to both traditional television and other social networking sites.

In light of YouTube’s popularity with students in the secondary grades, a classroom teacher may propose—and students may suggest—the idea of uploading videos created for classroom projects to students’ personal YouTube accounts. However, if a teacher instructs students to upload videos to YouTube (or another such public-sharing site) without carefully considering the consequences, a school district may unwittingly run into legal challenges.

While the legal issues associated with students uploading their coursework on YouTube are not clear, educators should consider several potential consequences before condoning this practice. We address these considerations in this first of two related EdLawConnect entries.

Student Privacy

Generally, student work product is not an “educational record” or “pupil record” under the Family Educational Rights and Privacy Act (20 U.S.C. § 1232g) or the Education Code. For instance, in Owasso Independent School Dist. No. I-011 v. Falvo (2002) 534 U.S. 426, a parent sued an Oklahoma school district alleging the common teachers’ practice of having students grade one another’s classwork violated FERPA. The U.S. Supreme Court disagreed, holding that student work is not an “education record” under FERPA until the records are “maintained by an educational agency or institution or by a person acting for such agency or institution.” However, peer grading within a brick-and-mortar classroom is different from sharing student work on the world-wide web. When a teacher encourages or requires students to post classwork online for public viewing, student privacy may be at risk.

Infringement of Students’ Rights by Third Parties

Under the federal Copyright Act students hold the copyright in their own work product. YouTube’s Terms of Use state that users retain their own copyrights in their uploaded materials. But when students’ work is posted on YouTube, it may be viewed by others who ultimately copy it into printed materials or onto other sites, resulting in infringement by Internet users over whom a school district exercises no control.

Before encouraging YouTube uploads, a school district must also ensure every student who appears in a video has provided consent for the image in the video to be disseminated. California law prohibits the use of a person’s likeness for commercial purposes. (Civil Code § 3344.) If another YouTube user converts images of students in classroom-created videos for commercial purposes, a student could claim the school district caused the infringement of the student’s individual right to publicity.

By instructing students to upload their work product to YouTube, school district personnel are directing students to agree to YouTube’s Terms of Use, and thus instructing them to enter into a private contractual relationship. If a student misuses the system, or gets into trouble for a breach of the Terms of Use contract, that student may attempt to shift legal blame to the school district.

Uploading student classwork to a public Internet site can motivate students to combine classroom content and technology, but also presents a variety of legal and practical concerns that must be carefully considered before any uploads occur. We discuss these issues further in a future blog.

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