[Videolib] copyright question: fair use or not?

Jed Horovitz (JedH@internetvideoarchive.com)
Tue, 6 Jul 2004 15:48:45 -0400

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I too have been 'offline for a week' and so I hope I am not repeating
something from earlier in this dialog.

I am teaching lawyers about this doctrine and it really is pretty simple if
you are willing to get over 'not being a lawyer'. According to section 107
FAIR USE is an affirmative defense for which the Infringer bears the burden
of proof. The four factors to be considered in that proof are:
THE PURPOSE OF THE COPYING
THE NATURE OF THE COPYRIGHTED WORK
THE AMOUNT OF COPYING
THE EFFECT ON THE MARKET FOR THE COPYRIGHTED WORK

Please take a look at the attached spreadsheet and bar chart that I use in
the course. I assigned values using a typical five-point scale for each of
the fair use factors. Plus 2 if that the factor is strongly in favor of a
finding of fair use, plus 1 if somewhat in favor, zero if it is neutral,
minus 1 if somewhat against fair use and minus 2 if a factor is strongly
against fair use. Note that the total weighs all the factors equally.

I have graphed AMERICAN GEOPHYSICAL UNION V TEXACO.This was a case about the
unauthorized copying of articles from a scientific journal.

Because the purpose of the copying was for scientific research that
furthered knowledge the defense claimed is was in favor of 'Fair Use'. The
court noted that while this was true, it was research done by a for profit
company. I thus ranked this factor as only a 'plus one'. The nature of the
copyrighted work was also scientific research which is fact based and not as
protected as say a song or a movie by copyright but was published for
profit, I ranked it as a 'plus one' as well. Because entire articles were
copied without modification, I ranked the amount of copying factor at 'minus
two.

I have done this for a couple dozen cases but you don't have to. The
important point is that you can do this for yourself and use it to justify
your actions. Justifying your actions is important because libraries and
librarians have a special status under the copyright law. When it comes to
fair use, you are the designated keepers of the flame.

Section 504. - Remedies for infringement: Damages and profits

Sub Section (c) Statutory Damages.

Paragraph (2) .In a case where the infringer sustains the burden of proving,
and the court finds, that such infringer was not aware and had no reason to
believe that his or her acts constituted an infringement of copyright, the
court in its discretion may reduce the award of statutory damages to a sum
of not less than $200. The court shall remit statutory damages in any case
where an infringer believed and had reasonable grounds for believing that
his or her use of the copyrighted work was a fair use under section 107, if
the infringer was:

an employee or agent of a nonprofit educational institution, library, or
archives acting within the scope of his or her employment who, or such
institution, library, or archives itself, which infringed by reproducing the
work in copies or phonorecords;

Your liability is just $200.00. All you need to do is be a librarian and be
able to show you believed your use was FAIR. In almost every other
situation -- outside of libraries -- Judgements can go as high as $150,000.
You have special powers to fight for FAIR USE. So use a spread sheet and
save your work.

Bye the way, I know of no librarian or library actually sued for
infringement.

Jed

-----Original Message-----
From: videolib-bounces@library.berkeley.edu
[mailto:videolib-bounces@library.berkeley.edu]On Behalf Of Gary Handman
Sent: Tuesday, July 06, 2004 11:53 AM
To: videolib@library.berkeley.edu
Subject: Re: [Videolib] copyright question: fair use or not?

Hi all

Just back from a long weekend, so I'm not sure I'm in full-tilt copyright
mode yet.

Here's the deal: fair use isn't categorically encapsulated in any one
copyright section: fair use is a concept, just as copyright itself is a
concept. Fair use generally allows certain uses of copyrighted materials
without permission of copyright holders. Without going into elaborate songs
and dances with elaborate citations of relevant copyright sections, here are
the relevant things to understand:

The law currently allows the [fair] use of some or all of copyrighted moving
image materials in the context of face-to-face classroom teaching (i.e.
regular instruction in a place where instruction usually occurs)

Other fair uses of moving image materials ARE NOT SPECIFICALLY DEFINED or
PROSCRIBED in the copyright law. Instead, there are five VERRRRRRRRRRRY
loosey-goosey tests/factors to which must be considered:

Purpose of use
Nature of the work:
Proportion/extent of the material used:
The effect on marketability

...often not very helpful in pinning down whether a particular use is fair
or not, I must say.

There are published guidelines (GUIDELINES, not laws) developed by educators
and industry-types--The CCUMC Guidelines
(http://www.utsystem.edu/ogc/intellectualproperty/ccmcguid.htm)--which
attempt to put quantitative teeth into the above. It is felt (by some,
although not all) that the CCUMC Guidelines provide sensible, "safe-harbor"
definitions of fair uses related to moving image and other media.

OK?

At 12:44 PM 7/2/2004 -0400, you wrote:

In a message dated 7/2/04 11:55:02 AM, jrosner@kino.com writes:

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"

Damn! We're agreeing again. Can't wait for the Cubbies to visit Shea Stadium
again. ;-)

Though as I emailed to Jessica -- no sympathy here for the Sox (a team I
actually like) when Nomar takes a day off both literally and figuratively.

Dennis
Milestone Film & Video
PO Box 128
Harrington Park, NJ 07640
Phone: (800) 603-1104 or (201) 767-3117
Fax: (201) 767-3035
Email: milefilms@aol.com
Website: http://www.milestonefilms.com
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

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