The answer to this question depends on the nature of Open SUNY, and on the character and use of the copyrighted material.
The TEACH Act, in brief, allows fair use sharing of copyrighted material to students learning at a distance with essentially the same coverage as face-to-face sharing, provided that the material is for an educational use, that the use is limited (both limited as per Fair Use and limited in duration to the time the student is enrolled in the distance learning course), and that the institution uses technology to ensure that only enrolled students can access the content and that the content is provided in a way that does not lead to illicit sharing and re-sharing of copyrighted material. If Open SUNY is truly open to all, the provisions of the TEACH ACT will likely not provide coverage and the institution must either license the material, create original material, or make no use of unlicensed material.
However, to the extent that controls are placed on the openness, the protection of the TEACH ACT may apply. However, further analysis of the makeup of Open SUNY would be required before providing final guidance on this question.
To the extent that Fair Use and the Teach Act do apply, faculty must engage in the traditional analysis of the four factors of fair use to determine whether material or a portion thereof, may be shared with students.
