Re: [Videolib] verification of archival copy laws

Troy Davis (
Tue, 27 Apr 2004 16:08:32 -0400

With all due respect,
There could be a great disparity between your general belief and
outcomes of a particular infringement case, which, after all can never
be based on general beliefs or broad rhetoric, but rather on the facts
of a particular case and these facts would emerge from the factors
outline in Section107.

There ARE limitations on exclusive rights and they are indeed expressed
in section 108. Every literate person has the ability to read the
statute and, since even lawyers and judges disagree over the "intent" of
Congress in the statute, it doesn't seem productive to talk about suing
and winning in such triumphant terms.

Also, copyright law has a "nature" as well as a bunch of words in a
statute. Is it a grant of a limited monopoly to facilitate learning or
a full-blown property right? It depends on who you ask. If you ask me,
copyright exists primarily to benefit the public welfare and foster an
informed citizenry. I don’t have to be a lawyer or be endowed with
Ciceronian gifts of rhetoric to assert this. I do however have to make a
reasonable attempt to read and understand the statute, which I’ve tried
to do.

One could argue, in the case of reproduction (libraries can reproduce
stuff with certain ground rules outlined in section 108), that NOT
reproducing a damaged or deteriorating items would constitute a barrier
to the advancement of knowledge or the promotion of learning, thus be
contrary to the constitutional scheme of copyright. I hear it coming:
“Hey just because I’m not distributing it or releasing it or making it
available on the market at this time, doesn’t mean you can reproduce it.
You have to track down the copyright holder, write a million letters
etc…” But certainly that could be claimed about every work and is not
unlike saying something as fantastic as “But hey an absence is really
just a postponed presence” or something like that. Certainly Congress
didn’t intend for works (you see, you don't have to be a lawyer to talk
about the "intent" of Congress!), that are deteriorating and or damaged
and which a library has determined to be vested with a compelling public
interest, to be held hostage by some claim of some future marketing
strategy and some indefinite date. And in fact if a library were sued
and this were indeed the argument of the "studio" or whoever, don't you
think that the court would require from the studio or whoever some good
arguments that a library's reproduction (for preservation purposes as
outlined in the statute) of a deteriorating 16 mm film economically
harms the copyright holder (which is only one of the factors in
determining if a use is fair in section 107). I don't see it happening,
but again, an infringement case would be about the facts, not what I see

My thoughts,

Jessica Rosner wrote:

> Well I won't get into my general belief that if you ever tried to copy
> a 16mm of feature film to video or DVD, the studio ( if they knew ) would
> sue and win however this is a non issue for a long time. 16mm is many, many
> years from being obsolete, inconvenient maybe but nowhere near obsolete
> and I don't see this happening for at least a decade. I am guessing you
> are referring more to educational than feature material but 16mm not going
> anywhere soon

M. Troy Davis
Media Services Librarian
University of Tennessee Libraries :: The Studio
245 John C. Hodges Library
Knoxville, TN 37996

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