Re: video streaming and copyright

Clark, Jeff (clarkjc@jmu.edu)
Thu, 30 Nov 2000 16:11:05 -0800 (PST)

Folks,

This has been a fascinating discussion. At the risk of
being a bit hastier than I'd like, I want to get in a few
additional thoughts to supplement those expressed already
before the subject becomes too old when I've got more time.
I've been following the law and other developments for
quite a while, and have some hard details to add along with
the opinion below.

Dan has a good point. The intellectual property clause in
the U.S. constitution, and the philosophy behind it, have
meant (at least by implication) to distinguish between
copyright in a work and the work as embodied in a specific
physical copy. Rights in one aren't meant to extend to the
other in perfect synchronicity. Our laws, developed from
the right to legislate on IP given Congress, haven't always
faithfully distinguished between the two. But the hard
truth is, imperfect as they are, we have to work within
their legal precints, however resourcefully we can stretch
their boundaries.

I too think that the "fair use" section of the copyright
law can apply to the Variations project at IU--but from my
perspective, more in theory than in legally supportable
reality. It's generally accepted that as one of the
official four factors of fair use, you can't use the whole
work--but that's not a fact. It's just that if you do, the
rest of your case re: the other three factors would have to
be extraordinary. And you'd have to ignore the unofficial
factor Gary raised--temporary (and spontaneous) use, not
permanent, being more acceptable. But if you could make
such a case for fair use, it would override the copyright
holder's right to make copies, which has to be done in the
transition from analog to digital format.

I feel a bit strange talking this way about a project at an
institution from which we've got one or more members on
this list, but you've gotta take the reference point at
hand. I took a look at the Variations web site, and the
papers explaning its origins and workings. For myself, if I
had a role in considering whether to do this sort of
project on my campus, I'd feel we couldn't without securing
permissions. It does not appear to me that the recordings
that have been digitized are special in any way (not
published, or even o.p.)--just the opposite. And even
making them available via a secure server at a limited
facility doesn't overcome the fact that their delivery has
the attractive feature of multiple simultaneous access for
users. That's a rub, too: one original "first sale" copy in
analog form, is effectively being turned into multiple
digital copies (because of simultaneous access). Even when
we were stuck in the analog realm exclusively, almost none
of us(?) ever took one legitimate copy and made multiples
for reserve or other use just because the demand was there.
Let alone did (or do) the same with non-media print
resources (excepting reserve articles, perhaps).

There are a couple of additional legal developments to
mention that bear on how to look at a project like
Variations. Here they are:

1. Several years back now, the Conference on Fair Use
(CONFU) tried to devise guidelines for "electronic
reserves" among others. As in the case of all but one of
the other sets of guidelines (re: educational multimedia),
there wasn't enough agreement between publishers and the
educational community to ratify these. That doesn't bode
well for a project like Variations being anything other
than an adventure to push the boundaries--i.e., it doesn't
have any formal precedent to rest a case on.

2. In 1998, the Digital Millennium Copyright Act (DMCA) was
passed--and it's got a few interesting provisions that bear
on the Variations project and how it's being used.
The summary of the DMCA at the Copyright Office website
points out the provisions neatly: The DMCA section 404
amends Title 17 section 108 (dealing with libraries,
preservaton and interlibrary loan) to permit digital copies
of (non-digital) works, under these conditions: for
purposes of use within the library premises only (there
goes distance ed...), or for transfer to the digital format
because the original format has become obsolete (and its
playback equipment may no longer be reasonably available
commercially).
The way Variations is being used right now dovetails
with this "within the facility only" provision. But
it doesn't meet the second, and the
one-copy-into-multiples feature of the distribution system
is again still a problem the DMCA can't be interpreted to
cover.
Presently, the Copyright Office has a set of
recommendations out to Congress to amend the DMCA and make
it more friendly to distance or distributed educational use
of works in digital form--including doing away with the
old-fashioned idea of defining an institution by contiguous
physical premises. But these are only recommendations, and
are rather modest in scope. They've yet to be acted upon...
and in terms of what I know of them, if passed they
wouldn't give much more support to where a Variations-type
project ultimately wants to go, given the nature of the
material it's working with.

Again I think Dan has a good point about the prominance of
and pressure to go digital with everything... even in
ignorance. I think what we need to do--not only out of
reasonable respect for existing law, but for our reasonable
colleagues in the publishing world who really would
rather be our allies--is to resist and re-educate foolhardy
efforts to go this route automatically and deal with
consequences later on. We ought to think about
consequences, and our justifications and defenses, first.

When we don't, or even when we try to, the scenario might
go: We need to convert analog media to digital form
because...Why?: Well, other print resources are available
now in comprehensive and convenient licensing options for
digital distribution; we can't just wait till these media
people catch up and get their act together.... --Oh, you
think legally we have to consider an alternative, which is
to deal with vendors individually, get the licensing we
need? Isn't that rather laborious? And it might cost...
what? How much?! Hey, for that kind of money we can get a
major full-text scholarly database; this is just a bunch of
videos we're talking about...! --Let's just try the
original idea and digitize, I tell you. We'll work it out
the complications later.

You get the picture. There's a tangle of attitude and
assumption in that scenario that most of us have been
familiar with. Goes with the territory, I fear.

Meanwhile, users in our communities would rather take any
option, however slimly justified (if at all), to have
provided to them from our realm what they have from other
resource realms with the same convenience. It is the
prevailing Napsterite's inclination, just institutionalized
and tamed somewhat here so it doesn't quite run riot, so to
speak.

Sorry; I didn't mean to end on too derogatory and combative
a note, but the train of thought, alas, heads where it
must....

Jeff
**********
Jeff Clark
Director
Media Resources (MSC 1701)
James Madison University
clarkjc@jmu.edu
540-568-6770 (voice)
540-568-3405 (fax)

On Thu, 30 Nov 2000 10:00:27 -0800 (PST) Dan Donnelly
<d-donn@maroon.tc.umn.edu> wrote:

> I think fair use is part of this. When something we do infringes copyright it does just that, i.e. infringes on the copyright. So, a distinction to make when analyzing for fair use is whether one is using the work or using the copyright. Using the copyright might involve copying to re-market or re-distribute for some commercial purpose. Using the work might be something different and may be what one does when one copies for study or teaching purposes in the classroom. Indeed, those purposes are statutory purposes mentioned in Sec. 107, which seems to be telling us about exceptions to the exclusive rights held by copyright owners.
>
> I'm not an attorney, but if I were I might find myself willing --for the only time in my life--, to call myself a fundamentalist. I can't see any language in 107 that forbids some copying for some of the educational purposes my library collection supports.
>
> As for sensibility, indeed, there is nothing to recommend wholesale digital capture of entire videorecordings along the lines of the treatment of sound recordings in the Variations Project at Indiana. I only mention the project as an extreme, a very aggressive fair use assertion to contrast with the supposition that it might be legal to digitize an off air dub. However, I do think that the teaching community brings pressure to managers like myself to support virtual classroom activity, - course Web sites, electronic reserves in the library, etc- with visual content. As a rule the demand is for short clips rather than entire programs. I'd like to find a way to help. The digital networked video library might be a database of digital objects comprised of short video clips. Even that could involve huge amounts of data, eventually terabytes not gb.
>
> Supporting new technology teaching activity has become a matter of survival on my campus, and in my library. (Does anyone else on the list feel these pressures?) If I can't attach the D word to the activity it won't get funded. That puts continuing support for my media service in competition with every digital initiative in the library. If I need staff, I can't get staff unless staff are attached to something digital, and even then it's pretty tough. Being a media service manager in an academic library has not been a piece of cake. If I need equipment I can't get equipment unless it's a computer. I won't say these are reasons to infringe copyright but I will seek opportunities to bring recorded materials content to new media teaching technology if that's what it takes to keep video collections alive.
>
> Dan Donnelly, Library Manager
> Learning Resources Center
> University of Minnesota Libraries
>
> At 02:04 PM 11/29/2000 -0800, you wrote:
> >OK...Here it is again:
> >
> >There are two central issues (at least) involved in creating a digital,
> >networked video library:
> >
> >1. Transferring one format to another (i.e. analog to digital) constitutes
> >making a derivative work -- one of the five exclusive rights assigned to
> >copyright holders (or their assigned agents)
> >
> >2. The right to broadcast a work is another exclusive right held by the
> >copyright owner.
> >
> >As far as I can tell, Fair Use does not enter into this equation AT
> >ALL! (...yes, EVEN if the works have passworded access, EVEN if the
> >content is used exclusively in Face to Face teaching).
> >
> >..but more to the point: even if there weren't copyright strictures in
> >the way, the tech issues involved in mounting and delivering (even
> >locally) large video datafiles are enormous (if not totally insurmountable)
> >at present. What, pray tell, is the point of spending massive amounts of
> >staff time, CPU space, bandwidth, and classroom time trying to deliver what
> >are (at present) substandard images with unstable technologies, when
> >there's a perfectly serviceable and relatively cost-effective technology at
> >hand--i.e. tape and DVD. Being cutting edge is one thing; being sensible
> >seems increasingly to be another thing altogether.
> >
> >
> >
> >At 01:37 PM 11/29/2000 -0800, you wrote:
> >>Hi Everyone,
> >>
> >>I'd like to ditto Don's query. I have had discussions with the vice
> >>chancellor I report to about digitizing our entire video collection to be
> >>put on a server for distribution to carrels in our lab, and maybe also to
> >>classrooms on campus. I too have wondered about the copyright issue that
> >>might be involved. If anyone can clarify this I'm sure there are a number
> >>of us who are facing the same uncertain future.
> >>
> >>Jim Glenn
> >>Manager, Media Library
> >>Universiy of California, Riverside
> >>
> >>
> >>At 01:21 PM 11/29/00 -0800, you wrote:
> >> >Hello all:
> >> >
> >> >If I may, I'd like to expand Colette Ford's query about off-air dubbing
> >>and digitizing for video streaming.
> >> >
> >> >A version of Colette's questions are being asked here at Minnesota and I
> >>suspect at many other places around the country. We're not immediately
> >>concerned with off-air taping that is then digitized for Web access, but
> >>rather digitizing videocassettes and s
> >> >ound recordings from our collections, for storage on large servers and
> >>providing Web access to the files. I'm not sure that some version of web
> >>access to videos without securing permission can't be legal. In Colette's
> >>first question, it seems as if some u
> >> >ser restriction (password protection or geographic limitation) might
> >>protect an institution from copyright infringement. If fair use might apply
> >>in the classroom, what about the virtual classroom? What if access is
> >>restricted to an on-campus lab, say a li
> >> >brary location or a classroom, where user workstations are equipped with
> >>client applications to access a server, could that be legal in some cases
> >>or in some sense? Aside from the analog to digital transformation and off-air!
> >> > taping guidelines, how is in-building viewing of Web delivered video
> >>different from in-building video viewing at a VHS equipped viewing station
> >>or video projection presentation? If one can legally dub the video off air
> >>and use it in the classroom for st
> >> >udent viewing for a limited time, then why couldn't one use that same
> >>program content in the new media environment that restricts viewing to
> >>students enrolled in a particular course at a degree granting non-profit
> >>educational institution?
> >> >
> >> >The thing that nags at me with this question is the Variations project at
> >>Indiana University. I'm not sure what they do about copyright permissions
> >>but it seems as if they've decided to go ahead with digitization of the
> >>music library's entire collection o
> >> >f music recordings and make them available on library workstations inside
> >>their new building. Their Website, http://www.dlib.indiana.edu/variations/
> >>says that so far they've got over 5,000 recordings digitized. They don't
> >>mention much about copyright, oth
> >> >er than to say in a paper (available on the site) that copyright is one
> >>reason they restrict Web listening to in-building use only, no remote
> >>dial-up access, and so far no access via the campus network.
> >> >
> >> >Does anyone on this list know about the approach to permissions in the
> >>Variations Project? Do they get permission to digitize everything they make
> >>available on the Web? I don't think there's a difference between video and
> >>audio recordings when it comes to
> >> > copyright permission to use the recordings for teaching in college
> >>curricula. So, can the Variations Project instruct us about video in any
> >>way even though it's not about off-air recording? The project is about new
> >>educational technology and it demonstra
> >> >tes Indiana's willingness to move forward on such a large scale that I
> >>can't imagine them going ahead without a strong sense of confidence with
> >>respect to copyright permissions, however they may manage the issue.
> >> >
> >> >I think copyright permissions and Web access to recorded materials under
> >>the aegis of non-profit educational environments is a can of worms that
> >>should be opened wide. I don't know where to find the time or the opener,
> >>but this list is always a good sourc
> >> >e of ideas.
> >> >
> >> >Dan Donnelly, Library Manager
> >> >Learning Resources Center
> >> >University of Minnesota Libraries
> >> >
> >> >
> >> >At 04:33 PM 11/21/2000 -0800, you wrote:
> >> >>Hi Colette:
> >> >>
> >> >>In re your question one: the Kastenmeir guidelines apply to off-air
> >> taping
> >> >>and showing of materials in the classroom, as well as tape
> >> >>retention. There's nothing in these guidelines that would apply to your
> >> >>case.
> >> >>
> >> >>The issues at hand in your case are: transferring from analog to digital
> >> >>(considered making a derivative work--and one of the exclusive rights of
> >> >>the copyright holder) And broadcasting the work (another of the rights of
> >> >>the copyright owner). Doing what you propose without securing rights, I
> >> >>don't believe you'd have a legal leg to stand on----passworded site or not.
> >> >>
> >> >>
> >> >>At 03:58 PM 11/21/2000 -0800, you wrote:
> >> >>>Dear List Members,
> >> >>>
> >> >>>Someone in our academic computing office has posed the following
> >> questions
> >> >>>about video streaming and copyright. I've searched the list archives for
> >> >>>info but would appreciate any additional answers to these. In
> >> addition to
> >> >>>his questions below, I also want to know: For question 1, I know about
> >> the
> >> >>>Kastenmeir guidelines for off-air tapes used in classroom teaching, but
> >> >>>would they apply to video steaming if delivered to the classroom or
> >> >>>classmembers? For question 3, are there special "broadcast" rights as
> >> >>>opposed to "public performance rights" which need to be secured for video
> >> >>>streaming? In question 3, I'll inform him of the fun we sometimes have
> >> >>>trying to determine the copyright holder of videos, but any hints in
> >> >>>answer to his question are welcome.
> >> >>>
> >> >>>Specific questions for the computing staff member:
> >> >>
> >> >>
> >> >>
> >> >>
> >> >>>1. If an instructor wants his students to watch a particular PBS program,
> >> >>>can I tape this TV broadcast for them and make it available on a web
> >> >>>server and under what circumstances? The video server can be restricted
> >> >>>to:
> >> >>>a. limit availability to locations on campus
> >> >>>b. allow only 1 or any limited number of concurrent streams
> >> >>>c. make the video available only for watching, not saving or copying
> >> >>>
> >> >>>2. Same question for the content released on VHS tape or DVD disk.
> >> >>>
> >> >>>3. What's the proper way to approach the copyright holder for a release to
> >> >>>do a limited public performance or how to negotiate a reasonable royalty?
> >> >>>
> >> >>>Thank you,
> >> >>>
> >> >>>Collette
> >> >>>
> >> >>>Collette Ford
> >> >>>Multimedia Resources Center Librarian
> >> >>>Univ Calif Irvine
> >> >>>ccford@lib.uci.edu
> >> >>
> >> >>Gary Handman
> >> >>Director
> >> >>Media Resources Center
> >> >>Moffitt Library
> >> >>UC Berkeley 94720-6000
> >> >><http://www.lib.berkeley.edu/MRC>http://www.lib.berkeley.edu/MRC
> >> >>
> >> >>"Everything wants to become television"
> >> >>(Gregory Ulmer. Teletheory : Grammatology in the Age of Video)
> >> >>
> >> >>
> >> >>
> >> >Dan Donnelly, Library Manager
> >> >Learning Resources Center
> >> >University of Minnesota Libraries
> >> >612.624.6536
> >> >--
> >> >mailto:d-donn@tc.umn.edu
> >> >
> >
> >Gary Handman
> >Director
> >Media Resources Center
> >Moffitt Library
> >UC Berkeley 94720-6000
> ><http://www.lib.berkeley.edu/MRC>http://www.lib.berkeley.edu/MRC
> >
> >"Everything wants to become television"
> >(Gregory Ulmer. Teletheory : Grammatology in the Age of Video)
> >
> >
> >
> Dan Donnelly, Library Manager
> Learning Resources Center
> University of Minnesota Libraries
> 612.624.6536
> --
> mailto:d-donn@tc.umn.edu