[Videolib] copyright question: fair use or not?

R. Hertzler (rhertz@u.washington.edu)
Fri, 2 Jul 2004 11:57:44 -0700 (PDT)

Yeah, I guess I should have read backwards, since Gary *did* already make
the point I was trying to make. And no, 110 doesn't cover fair use, but
seems to cover the circumstance originally posted that led to this
tiresome discussion.

Randy

On Fri, 2 Jul 2004, Jessica Rosner wrote:

> 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
> >>
> >>
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> >>
> >
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