RE: [Videolib] Archival copy of DVD

clarkjc@jmu.edu
Fri, 19 Sep 2003 17:45:58 -0400

Jed,

I have to agree with Gary on the main points here.

Let me elaborate the argument further from Title 17.

Section 108, "Limitation on exclusive rights: reproduction by
libraries and archives", has this closing subsection:

"(i)
The rights of reproduction and distribution under this
section do not apply to a musical work, a pictorial, graphic
or sculptural work, or a motion picture or other audiovisual
work other than an audiovisual work dealing with news, except
that no such limitation shall apply with respect to rights
granted by subsections (b) and (c), or with respect to
pictorial or graphic works published as illustrations,
diagrams, or similar adjuncts to works of which copies are
reproduced or distributed in accordance with subsections (d)
and (e)"

Now, backtrack to those two subsections (b) and (c), which
provide an escape clause from this general prohibition on
duplicating audiovisual works (of which DVD is one):

* (b) is about unpublished works -- so that's a useless
exception in this case.

* (c) is about published works, but reads thusly:

"(c)
The right of reproduction under this section applies to
three copies or phonorecords of a published work duplicated
solely for the purpose of replacement of a copy or
phonorecord that is damaged, deteriorating, lost, or stolen,
or if the existing format in which the work is stored has
become obsolete, if -

(1)

the library or archives has, after a reasonable effort,
determined that an unused replacement cannot be obtained at a
fair price; and

(2)

any such copy or phonorecord that is reproduced in digital
format is not made available to the public in that format
outside the premises of the library or archives in lawful
possession of such copy.

For purposes of this subsection, a format shall be
considered obsolete if the machine or device necessary to
render perceptible a work stored in that format is no longer
manufactured or is no longer reasonably available in the
commercial marketplace."

>From a library's viewpoint, there are two hamstringing
factors here that militate against making and loaning copies
of DVDs:

1. If the copies are made in accordance with this subsection
but in digital form--which DVDs are--they gotta be used only
on premises. There goes loaner copies, out the window.

2. But the main catch: The copies are meant as
*replacements* for deteriorating, etc. originals when another
published copy is no longer available--and thus library
copies should not be made preemptively in the first place.
This provision has always been an exasperating one for media,
which often don't deteriorate as gradually as do books--
because (according to the sense of the law, such as it makes)
you've got to catch the no-longer-in-print original title in
a state where it isn't completely unplayable in order to
duplicate it, or (if it is) you're stuck with finding an
unused copy on the market at a reasonable price (or any copy,
if you're desperate). DVD only makes the restriction more
exasperating, since the format is subject to catastrophic
failure.

The upshot is: short of legislative changes, libraries are
between a rock and a hard place on this issue even if 321
Studio's DVD copying product (among others) is deemed legal
for personal use. The current law clearly prohibits our
churning out copies for circulation, no matter how fragile
the medium. That's our tough luck, alas.

Jeff

---- Original message ----
>Date: Fri, 19 Sep 2003 12:56:12 -0700
>From: Gary Handman <ghandman@library.berkeley.edu>
>Subject: RE: [Videolib] Archival copy of DVD
>To: videolib@library.berkeley.edu
>
> I'm not a lawyer, Jed, thank god...but I have been
> in the business of media librarianship for over 20
> years and I have worked closely with lawyers on both
> sides of the fair use fence for easily that long. I
> appreciate your "information wants to be free
> stance", and as an educator myself, I push whenever
> possible on the side of fair use.
> There is NO debate here, however. Making
> derivatives of copyrighted works is the exclusive
> right of the copyright holder under Title
> 117....period. While copying of physically at-risk
> works which are no longer available on the
> commercial market may be permissible (or works in
> obsolete media that are no longer playable), copying
> an entire DVD would in no way be allowable under
> current law.
>
> yeah...it'd be cool if the american library assn
> went to the battlements in favor of broader access
> (Librarians did participate in CONFU and in the
> formation of the Fair Use Guidelines for
> Multimedia...battles which we lost, in my view).
> It's unlike that ALA or other professional groups
> will be frying this particular fish any time soon...
>
> There are many subscribers to this list who are new
> to the field of media librarian, or who are
> attempting to learn the ropes. I think you're
> confusing already complex issues with your
> idealism. The fact is, it's professionally
> incumbent on librarians (and everyone else, for that
> matter) to play within the strictures of the law
> (not liking them doesn't mean you can ignore them or
> interpret them to suit your own purposes)... Laws
> that are as fuzzy as copyright are extremely
> difficult to negotiate, and because most of us work
> in public institutions and in the public eye, I
> think it's always best to play it slow and easy...
> The groups you cite below are advocacy groups that
> are interesting, but are unlikely to prove too much
> use to any of us in the trenches if called into
> court on an infringement suit.
>
> Gary
>
> At 02:47 PM 9/19/2003 -0400, you wrote:
>
> Gary,
> I really don't want to start an old debate up
> again but are you a lawyer? Is it that clear? I
> don't think so. Check out http://www.eff.org and
> http://www.digitalconsumer.org and
> http://www.321studios.com. They don't agree with
> your position.
>
> I simply ask if you are right, why don't libraries
> lobby to change the law.
> Jed Horovitz
>
> -----Original Message-----
> From:
> videolib-bounces@library.berkeley.edu
> [mailto:videolib-bounces@library.berkeley.edu]On
> Behalf Of Gary Handman
> Sent: Friday, September 19, 2003 2:22 PM
> To: videolib@library.berkeley.edu
> Subject: Re: [Videolib] Archival copy of
> DVD
>
> Absolutely categorically indubitably and
> without question a patent infringement of
> copyright.
> Do not do it!
>
> Gary
>
> At 01:36 PM 9/19/2003 -0400, you wrote:
>
> A trustee asked if a public library could
> make copies of DVDs to circulate.
> The original copy would not circulate, but
> be kept as an archival copy if
> slapdash use causes damage to the
> circulating copy. This question was
> prompted by concern about the short life
> expectancy of DVDs circulating to
> the masses. Does anyone do this? Is it a
> copyright violation? My initial
> response was it is a copyright violation,
> but I know back in the LP days,
> libraries made tape copies to circulate.
> Thanks for any advice.
>
> Ellen J. Reynolds
> ereynolds@pls-net.org
> Collection Management Librarian
> Pioneer Library System
> www.pls-net.org
> 4595 Rt. 21 N.
> 585-394-8260 (V)
> Canandaigua, NY 14424 585-394-1935
> (FAX)
>
> _______________________________________________
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>
http://www.lib.berkeley.edu/mailman/listinfo/videolib
> Gary Handman
> Director
> Media Resources Center
> Moffitt Library
> UC Berkeley
> ghandman@library.berkeley.edu
> http://www.lib.berkeley.edu/MRC
>
> "In societies where modern conditions of
> production prevail,
> all of life presents itself as
> an immense accumulation of spectacles."
> --Guy Debord
>
> Gary Handman
> Director
> Media Resources Center
> Moffitt Library
> UC Berkeley
> ghandman@library.berkeley.edu
> http://www.lib.berkeley.edu/MRC
> "In societies where modern conditions of production
> prevail,
> all of life presents itself as an immense
> accumulation of spectacles."
> --Guy Debord

===========
Jeff Clark
Director
Media Resources MSC 1701
James Madison University
Harrisonburg VA 22807
clarkjc@jmu.edu (email)
540-568-6770 (phone)
540-568-7037 (fax)
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