[Videolib] copyright question: fair use or not?

Jessica Rosner (jrosner@kino.com)
Fri, 02 Jul 2004 11:31:18 -0400

Ok I am lost again so I will wait for Gary or Dennis but isn't this
the "face to face" teaching section? I believe "fair use" is an ENTIRELY
different section and we already discussed the reasons why the original
question re using a video in orientation MIGHT not apply under the
circumstances listed here but I still have no idea what this has to do with
"Fair use"

PS I am making nice with Dennis for three more days as I hate Yankees even
more than the Mets. My sincere condolences to any Red Sox fan on their
truly tragic loss last night.

-- 
Jessica Rosner
Kino International
333 W 39th St. 503
NY NY 10018
jrosner@kino.com
212-629-6880

> From: "R. Hertzler" <rhertz@u.washington.edu> > Reply-To: videolib@library.berkeley.edu > Date: Fri, 2 Jul 2004 07:59:58 -0700 (PDT) > To: videolib@library.berkeley.edu > Subject: Re: [Videolib] copyright question: fair use or not? > > Title 15, Ch. 1, Sec. 110 is at: > > http://www4.law.cornell.edu/uscode/17/110.html > > (1) makes NO indication that fair use does not apply to the WHOLE work (or > any part thereof), at least by my reading. > > Randy Hertzler > University of Washington Libraries > > On Fri, 2 Jul 2004, Jessica Rosner wrote: > >> I wish you or Gary would post the relevant section because I have >> NEVER heard of "fair use" as applying to anything more than a PORTION of >> FILM and I believe that is very specific in the code. Can one of you or >> someone else post this section ? I know I should have it but I don't >> I think the original question relates only to the issues of "face >> to face teaching " exemption on how IT would apply , I think it very >> dangerous indeed to mix " Fair Use " in this but I am more than willing to >> be proved wrong. >> HONEST >> -- >> Jessica Rosner >> Kino International >> 333 W 39th St. 503 >> NY NY 10018 >> jrosner@kino.com >> 212-629-6880 >> >>> From: <clarkjc@jmu.edu> >>> Reply-To: videolib@library.berkeley.edu >>> Date: Fri, 2 Jul 2004 09:01:22 -0400 >>> To: videolib@library.berkeley.edu >>> Subject: Re: [Videolib] copyright question: fair use or not? >>> >>> Jessica, >>> >>> I think it's a misconception that fair use only deals with >>> small portions of works--with the further assumption that >>> this usually has to do with copying those portions. That is, >>> it's a misconception that this is an automatic rule. >>> >>> There are four factors to consider in determining whether a >>> use of a work is fair. In shorthand: one of them is portion >>> of work, along with purpose of use, nature of the work, and >>> market effect on the work. Usual interpretation is that any >>> use that operates at an extreme of each factor, compromises >>> fair use claim and makes it less likely. E.g., the use is >>> commercial; the work is purely creative and not >>> informational; the "portion" is the whole work--whether >>> performed, or even worse yet copied; there's a direct market >>> impact because the use is clearly supplanting the purchase of >>> a copy or of a service relating to the work (e.g., public >>> screening rights service) that is readily available and >>> publicized. If a so-called "fair use" involves going to the >>> extreme in one of these factors, it makes the case hard to >>> defend: it better be good. Two or more factors, and you're >>> into untenable territory. But considering the factors, as >>> written, does not automatically disallow an extreme use of >>> any of them. One has to consider exactly how they are being >>> used in combination, when engaged in the law's sanctioned >>> teaching, reporting, criticism, scholarship and research. >>> >>> Even when you deal with some explicit guidelines such as the >>> Fair Use Guidelines for Educational Multimedia, where >>> portions are specified (in a copying context), the >>> guidelines' Preamble suggests that these standards are not an >>> absolute: >>> "While only the courts can authoritatively determine >>> whether a particular use is fair use, these guidelines >>> represent the endorsers' consensus of conditions under which >>> fair use should generally apply and examples of when >>> permission is required.. Uses that exceed these guidelines >>> may nor may not be fair use. The participants also agree that >>> the more one exceeds these guidelines, the greater the risk >>> that fair use does not apply." (Set aside the fact that the >>> multimedia guidelines don't really even apply to Maureen's >>> use in this case--because it doesn't involve a "multimedia >>> project"--but do apply to the same general user community, >>> nonprofit ed.) >>> >>> What my argument boils down to is: our reflex reactions on >>> interpretation should be tempered sometimes by reexaming our >>> premises and the actual legal provisions we have to work >>> with. Further tempered, of course, by how the courts have >>> decided to interpret those provisions, too. >>> >>> Jeff >>> >>> ---- Original message ---- >>>> Date: Thu, 01 Jul 2004 17:00:08 -0400 >>>> From: Jessica Rosner <jrosner@kino.com> >>>> Subject: Re: [Videolib] copyright question: fair use or >>> not? >>>> To: <videolib@library.berkeley.edu> >>>> >>>> Um I'm lost on this. Fair use is only for small portions of >>> works what would >>>> it have to do with this and how could it be used as a >>> defense ? >>>> 110 does seem pretty specific to me >>>> >>>> Just curious >>>> -- >>>> Jessica Rosner >>>> Kino International >>>> 333 W 39th St. 503 >>>> NY NY 10018 >>>> jrosner@kino.com >>>> 212-629-6880 >>>> >>>>> From: <clarkjc@jmu.edu> >>>>> Reply-To: videolib@library.berkeley.edu >>>>> Date: Thu, 1 Jul 2004 16:02:41 -0400 >>>>> To: videolib@library.berkeley.edu >>>>> Subject: Re: [Videolib] copyright question: fair use or >>> not? >>>>> >>>>> Gary, good point I hadn't considered before. But thinking >>>>> still further, let me reexamine our assumptions now. >>>>> >>>>> The section of Title 17 we're concerned with here, is 110, >>>>> dealing with performance. It reads in relevant part: >>>>> >>>>> 110. Limitations on exclusive rights: Exemption of certain >>>>> performances and displays >>>>> >>>>> Notwithstanding the provisions of section 106 [copyright >>>>> holder's rights], the following are not infringements of >>>>> copyright: >>>>> >>>>> (1) >>>>> performance or display of a work by instructors or pupils >>> in >>>>> the course of face-to-face teaching activities of a >>> nonprofit >>>>> educational institution, in a classroom or similar place >>>>> devoted to instruction, unless, in the case of a motion >>>>> picture or other audiovisual work, the performance, or the >>>>> display of individual images, is given by means of a copy >>>>> that was not lawfully made under this title, and that the >>>>> person responsible for the performance knew or had reason >>> to >>>>> believe was not lawfully made; >>>>> [...] >>>>> >>>>> Now, the loose term that Maureen and followup comments >>>>> (including mine) have been using is the all-purpose "fair >>>>> use". This reminds me, obviously now, that fair use does >>> have >>>>> its own section in 107 and is really a separate issue. >>>>> >>>>> My argument on second thought is that the privilege granted >>>>> by 110(1) for performance does not necessarily limit the >>>>> interpretation of the fair use defense in 107. While 110(1) >>>>> allows a "safe harbor" for so-called classroom >>> performance... >>>>> it doesn't mean that a not-quite-classroom performance for >>>>> instructional activity in a nonprofit institution could not >>>>> also be justified under 107. >>>>> >>>>> Besides: although traditionally 110(1) is taken to refer >>> to a >>>>> formal course and classroom situation, the actual >>> description >>>>> above does allow more leeway than that. If Maureen's >>>>> orientation is in a facility that normally has >>> instructional >>>>> activity occurring in it, this strengthens the connection >>> to >>>>> the performance exemption under a liberal interpretation. >>>>> While not precluding a fair use defense also. I'd say she >>> has >>>>> a foot in both camps, so to speak.... >>>>> >>>>> Jeff, who didn't think of this the first time he spouted >>>>> off... >>>>> >>>>> ---- Original message ---- >>>>>> Date: Thu, 01 Jul 2004 08:22:41 -0700 >>>>>> From: Gary Handman <ghandman@library.berkeley.edu> >>>>>> Subject: Re: [Videolib] copyright question: fair use or >>>>> not? >>>>>> To: videolib@library.berkeley.edu >>>>>> >>>>>> Hi >>>>>> >>>>>> The only teensy pause is the definition of "face-to-face" >>>>> teaching: the >>>>>> law really defines such as being in the course of regular >>>>> instruction in a >>>>>> place where instruction usually occurs. Your use doesn't >>>>> technically meet >>>>>> those requirements. >>>>>> >>>>>> Would I worry...nah! >>>>>> >>>>>> Gary >>>>>> >>>>>> At 09:25 AM 7/1/2004 -0400, you wrote: >>>>>>> Ok, I THINK I know the answer to this, but just in >>>>> case . . . >>>>>>> a college wants to show a copy of a recent popular >>>>> documentary, which is >>>>>>> in the Media Services nonprint collection, as part of a >>>>> freshman >>>>>>> orientation program. The film will be introduced by an >>>>> instructor, and >>>>>>> small group discussions of the film will take place the >>>>> next day, each >>>>>>> moderated by an instructor. Fair use or not? >>>>>>> I think it is fair use, because the presentation is in >>>>> connection with >>>>>>> face to face teaching activities. The tricky part, the >>>>> part that gives me >>>>>>> a teensy little pause, is that the discussions will take >>>>> place the next day. >>>>>>> I'd appreciate any thoughts anyone has on this, >>>>>>> thanks so much! >>>>>>> >>>>>>> _______________________________________________ >>>>>>> Videolib mailing list >>>>>>> Videolib@library.berkeley.edu >>>>>>> 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 >>>>>> >>>>>> **** >>>>>> >>>>>> "Movies are poems, a holy bible, the great mother of us." >>>>>> --Ted Berrigan >>>>>> >>>>>> _______________________________________________ >>>>>> Videolib mailing list >>>>>> Videolib@library.berkeley.edu >>>>>> http://www.lib.berkeley.edu/mailman/listinfo/videolib >>>>> >>>>> =========== >>>>> 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) >>>>> >>>>> _______________________________________________ >>>>> Videolib mailing list >>>>> Videolib@library.berkeley.edu >>>>> http://www.lib.berkeley.edu/mailman/listinfo/videolib >>>> >>>> >>>> _______________________________________________ >>>> Videolib mailing list >>>> Videolib@library.berkeley.edu >>>> http://www.lib.berkeley.edu/mailman/listinfo/videolib >>> >>> =========== >>> 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) >>> >>> _______________________________________________ >>> Videolib mailing list >>> Videolib@library.berkeley.edu >>> http://www.lib.berkeley.edu/mailman/listinfo/videolib >> >> >> _______________________________________________ >> Videolib mailing list >> Videolib@library.berkeley.edu >> http://www.lib.berkeley.edu/mailman/listinfo/videolib >> > > _______________________________________________ > Videolib mailing list > Videolib@library.berkeley.edu > http://www.lib.berkeley.edu/mailman/listinfo/videolib