RE: [Videolib] Preservation/Security copies (again)

Jed Horovitz (JedH@internetvideoarchive.com)
Tue, 25 Jan 2005 14:58:22 -0500

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Re: [Videolib] Preservation/Security copies (again)Michael,
I would posit that a reasonable price means FROM the copyright holder or
licensee or reseller of authorized new copies because it states, "an unused
replacement". If you are buying a used copy, the copyright holder is not
seeing anything from the transaction and the copyright law is not in place
to protect or inflate the resale value of rare copies. So if it is out of
print, out of distribution and out of stock a qualified library is clear to
copy.

If it is not out of print/distribution, a reasonable price is the market
price for new copies. In other words, if the copyright holder is trying to
get antiquarian rare book type prices for the last few new copies you don't
have to buy a replacement. If they are offering new copies at market value,
you do. Market value for commoditities like mass produced copies of books
and movies can easily be found by looking at other new releases of the same
genre.
Jed
(Just my blue state copyright opinion)
-----Original Message-----
From: videolib-bounces@library.berkeley.edu
[mailto:videolib-bounces@library.berkeley.edu]On Behalf Of Brewer, Michael
Sent: Tuesday, January 25, 2005 1:42 PM
To: 'videolib@library.berkeley.edu'
Subject: RE: [Videolib] Preservation/Security copies (again)

Jessica,

A library is allowed photocopy an entire out of print book (or make a copy
of any out of print item, regardless of format) using this exemption as long
as it is unavailable "at a reasonable price" (and if all the other
conditions are met - previous ownership by the library, the item is not
piracy protected, the library's copy is lost, stolen, damaged or
deteriorating, etc.). Yes, it is up to libraries to determine what "a
reasonable price" is, and that could be contested. I, personally, wouldn't
use this exemption unless the item were not available for purchase at all
(for example if I had and lost a subtitled copy of Aleksandr German's
Khrustalev, Mashinu!/Khrustalev, My Car!, which I don't believe is available
for purchase anywhere, including Ebay). I can see, however, how some would
have a different understanding of what reasonable is (is it market value?,
is it about what it cost in the first place?, etc.)

I think it is important to understand that this exemption was, I think,
intended to increase access to works that are no longer available
commercially. Ebay does throw a bit of a wrench into things, as any one in
the world can, potentially become an antiquarian dealer. I think it would
have to be up to libraries to determine where they would search for an item
before determining it was not available (our library would probably just use
an out of print search through a vendor, though I know for a fact they are
generally not very thorough).

I think it is pretty clear, however, that this exemption was not granted
to libraries in order to save money. It is available to us to help retain
important items in our collections to further the scholarship and learning
of our faculty and students. If it is available for purchase, it should not
really fall under this exemption.

It is funny you mention Berlin Aleksanderplatz, as the purchase of a used
copy of this (for 500 bucks, so I either got a great deal, or the going rate
is a bit lower than 1500) is what got me thinking about this exemption and
what I would do were it to be damaged or stolen (and what if just one tape
were damaged? would I be required to purchase another copy of all 8 VHS
tapes, or however long it is, just to replace this one? I doubt I could
purchase just one tape. Also, I looked for nearly a year before I found a
legal copy of Berlin Aleksanderplatz for sale at all (most were dubbed
copies "for cinema enthusiasts"). Were it to be stolen, I would only search
for a limited amount of time before I would consider replacing it using this
exemption.

Another interesting issue is that with the sale of used items the
copyright holder is not being paid for the secondary sale of the item, so
there is no potential loss of income to the holder of the copyright (and
this is who the law, I think, is intended to protect). I wonder if, from a
legal point of view, this would impact on our discussion. I am totally in
the dark on this one.

mb

Michael Brewer

Slavic Studies, German Studies & Media Arts Librarian

University of Arizona Library A210

1510 E. University

P.O. Box 210055

Tucson, AZ 85721

Voice: 520.307.2771

Fax: 520.621.9733

brewerm@u.library.arizona.edu

-----Original Message-----
From: Jessica Rosner [mailto:jrosner@kino.com]
Sent: Tuesday, January 25, 2005 9:33 AM
To: videolib@library.berkeley.edu
Subject: Re: [Videolib] Preservation/Security copies (again)

Um I am not going to go to far on this one which I have posted before but
you don't just to
get to dub a copy of any out of print title, anymore than you get to
photocopy an out of print book. If you think Disney allows libraries to dub
a title they take out circulation on a routine
basis because it now costs $200 to buy a used one, think again. Good luck
legally determining
what is a " reasonable " cost. If the going rate on eBay of a LEGAL used
copy of BERLIN ALEXANDERPLATZ is $1500 ( which I think it is) who is to say
that is not a fair price. That is
the cost of a rare out of print title. Video is a long, long, long way
from being an "obsolete".

Needless to say there is little chance of any library being "caught"
dubbing an item but as
a distributor I have like to believe they would not.

Jessica
( hey I think it has been MONTHS since I had a rant . I am out of
practice)

Proud Resident of a BLUE STATE

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

From: "Brewer, Michael" <brewerm@u.library.arizona.edu>
Reply-To: videolib@library.berkeley.edu
Date: Mon, 24 Jan 2005 15:24:57 -0700
To: "'videolib@library.berkeley.edu'" <videolib@library.berkeley.edu>
Subject: [Videolib] Preservation/Security copies (again)

All,

I heard from very few people about the preservation/security copy issue,
which makes me wonder...

I am wondering if any of you have actually used this exemption at any
point (the exemption which allows libraries to get a copy of a damaged or
lost item from another institution), or if any of you have made a copy of a
video for another library that was using this exemption. If so, I would
love to hear about it.

It is hard for me to believe that no library out there has ever lost or
damaged an out of print video. On the other hand, I also don't want to
believe that no media librarian out there has ever had the 1) knowledge, and
2) perseverance to actually use this exemption in order to get a copy of a
video from another institution.

If this, indeed, is the case, that this exemption is not being used to
provide our customers with items that we legally purchased, and which we
have every right to duplicate (or request a duplicate from another
institution), it is really too bad.

I think that as a group we might want to figure out some sort of process
(and agreement) for providing one another copies of videos, when all the
terms required of this exemption are met (1. legal copy was once owned by
the requesting institution; 2. it is now lost, stolen, or damaged; 3. the
video is not available for purchase "at a reasonable price").

I don't yet belong to VRT (I am fairly new to the Media Arts portion of
my job), but perhaps that is the group through which to work on this.
Anyone else have any ideas, comments, etc?

mb

Michael Brewer

Slavic Studies, German Studies & Media Arts Librarian

University of Arizona Library A210

1510 E. University

P.O. Box 210055

Tucson, AZ 85721

Voice: 520.307.2771

Fax: 520.621.9733

brewerm@u.library.arizona.edu

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Re: [Videolib] Preservation/Security copies = (again)

Michael,
I=20 would posit that a reasonable price means FROM the copyright holder or=20 licensee or reseller of authorized new copies because it = states, =20 "an unused = replacement".  If you are=20 buying a used copy, the copyright  holder is not seeing anything = from the=20 transaction and the copyright law is not in place to protect or inflate = the=20 resale value of rare copies.  So if it is out of print, out of = distribution=20 and out of stock a qualified library is clear to copy. =20
 
If it=20 is not out of print/distribution, a reasonable price is the = market=20 price for new copies. In other words, if the copyright holder is trying = to=20 get antiquarian rare book type prices for the last few new copies = you don't=20 have to buy a replacement.  If they are offering new copies at = market=20 value, you do.  Market value for commoditities like mass produced = copies of=20 books and movies can easily be found by looking at other new releases of = the=20 same genre.
Jed
(Just=20 my blue state copyright opinion)
-----Original Message-----
From:=20 videolib-bounces@library.berkeley.edu=20 [mailto:videolib-bounces@library.berkeley.edu]On Behalf Of = Brewer,=20 Michael
Sent: Tuesday, January 25, 2005 1:42 = PM
To:=20 'videolib@library.berkeley.edu'
Subject: RE: [Videolib]=20 Preservation/Security copies (again)

Jessica,=20

 

A library = is allowed=20 photocopy an entire out of print book (or make a copy of any out of = print=20 item, regardless of format) using this exemption as long as it is = unavailable=20 "at a reasonable price" (and if all the other conditions are met - = previous=20 ownership by the library, the item is not piracy protected, the = library's copy=20 is lost, stolen, damaged or deteriorating, etc.).  Yes, it is up = to=20 libraries to determine what "a reasonable price" is, and that could be = contested.  I, personally, wouldn't use this exemption unless the = item=20 were not available for purchase at all (for example if I had and lost = a=20 subtitled copy of Aleksandr German's Khrustalev, Mashinu!/Khrustalev, = My Car!,=20 which I don't believe is available for purchase anywhere, including=20 Ebay).  I can see, however, how some would have a different = understanding=20 of what reasonable is (is it market value?, is it about what it cost = in the=20 first place?, etc.)

 

I think it = is=20 important to understand that this exemption was, I think, intended to = increase=20 access to works that are no longer available commercially. Ebay does = throw a=20 bit of a wrench into things, as any one in the world can, potentially = become=20 an antiquarian dealer.  I think it would have to be up to = libraries to=20 determine where they would search for an item before determining it = was not=20 available (our library would probably just use an out of print search = through=20 a vendor, though I know for a fact they are generally not very = thorough).=20

 

I think it = is pretty=20 clear, however, that this exemption was not granted to libraries in = order to=20 save money.  It is available to us to help retain important items = in our=20 collections to further the scholarship and learning of our faculty and = students.  If it is available for purchase, it should not really = fall=20 under this exemption. 

 

It is funny = you=20 mention Berlin Aleksanderplatz, as the purchase of a used copy of this = (for=20 500 bucks, so I either got a great deal, or the going rate is a bit = lower than=20 1500) is what got me thinking about this exemption and what I would do = were it=20 to be damaged or stolen (and what if just one tape were damaged? would = I be=20 required to purchase another copy of all 8 VHS tapes, or however long = it is,=20 just to replace this one?  I doubt I could purchase just one = tape. =20 Also, I looked for nearly a year before I found a legal copy of Berlin = Aleksanderplatz for sale at all (most were dubbed copies "for cinema=20 enthusiasts").  Were it to be stolen, I would only search for a = limited=20 amount of time before I would consider replacing it using this=20 exemption.

 

Another = interesting=20 issue is that with the sale of used items the copyright holder = is not=20 being paid for the secondary sale of the item, so there is no = potential loss=20 of income to the holder of the copyright (and this is who the law, I = think, is=20 intended to protect).  I wonder if, from a legal point of view, = this=20 would impact on our discussion. I am totally in the dark on this one.=20

 

mb

 

Michael=20 Brewer

Slavic = Studies,=20 German Studies & Media Arts Librarian

University = of=20 Arizona Library A210

1510 E.=20 University

P.O. Box=20 210055

Tucson, AZ = 85721

Voice:=20 520.307.2771

Fax:=20 520.621.9733

brewerm@u.library.arizona.e= du

-----Original=20 Message-----
From: = Jessica=20 Rosner [mailto:jrosner@kino.com]
Sent: Tuesday, January 25, 2005 = 9:33=20 AM
To:=20 videolib@library.berkeley.edu
Subject: Re: [Videolib]=20 Preservation/Security copies (again)

 

Um I am not going to go to = far on this=20 one which I have posted before but you don't just to
get to dub a = copy of=20 any out of print title, anymore than you get to photocopy an out of = print=20 book. If you think Disney allows libraries to dub a title they take = out=20 circulation on a routine
basis because it now costs $200 to buy a = used one,=20 think again. Good luck legally determining
what is a " reasonable = " cost.=20 If the going rate on eBay of a LEGAL used copy of BERLIN = ALEXANDERPLATZ is=20 $1500 ( which I think it is) who is to say that is not a fair price. = That=20 is
the  cost of a rare out of print title. Video is a long, = long, long=20 way from being an "obsolete".

Needless to say there is little = chance of=20 any library being "caught" dubbing an item but as
a distributor I = have like=20 to believe they would not.

Jessica
( hey I think it has been = MONTHS=20 since I had a rant . I am out of = practice)





Proud=20 Resident of a BLUE STATE

Jessica Rosner
Kino = International
333 W=20 39th St. 503
NY NY=20 10018
jrosner@kino.com
212-629-6880


From:
"Brewer, Michael"=20 <brewerm@u.library.arizona.edu>
Reply-To:=20 videolib@library.berkeley.edu
Date: Mon, 24 Jan 2005 15:24:57 = -0700
To:=20 "'videolib@library.berkeley.edu'"=20 <videolib@library.berkeley.edu>
Subject: [Videolib] = Preservation/Security=20 copies (again)

 

All,=20



I heard=20 from very few people about the preservation/security copy issue, = which makes=20 me wonder...  



I am=20 wondering if any of you have actually used this exemption at any = point (the=20 exemption which allows libraries to get a copy of a damaged or lost = item=20 from another institution), or if any of you have made a copy of a video for = another=20 library that was using this exemption.  If so, I would love to = hear=20 about it.



It is=20 hard for me to believe that no library out there has ever lost or damaged an out = of print=20 video.  On the other hand, I also don't want to believe that no = media=20 librarian out there has ever had the 1) knowledge, and 2) = perseverance to=20 actually use this exemption in order to get a copy of a video from = another=20 institution.



If this,=20 indeed, is the case, that this exemption is not being used to = provide our=20 customers with items that we legally purchased, and which we have = every=20 right to duplicate (or request a duplicate from another = institution), it is=20 really too bad.  



I think=20 that as a group we might want to figure out some sort of process = (and=20 agreement) for providing one another copies of videos, when all the = terms=20 required of this exemption are met (1. legal copy was once owned by = the=20 requesting institution; 2. it is now lost, stolen, or damaged; 3. = the video=20 is not available for purchase "at a reasonable = price").=20



I don't=20 yet belong to VRT (I am fairly new to the Media Arts portion of my = job), but=20 perhaps that is the group through which to work on this. =  Anyone else=20 have any ideas, comments, etc?



mb =



Michael=20 Brewer

Slavic Studies, = German Studies=20 & Media Arts Librarian

University of=20 Arizona Library A210

1510 E.=20 University

P.O. Box = 210055=20

Tucson, AZ = 85721=20

Voice:=20 520.307.2771

Fax: = 520.621.9733=20

brewerm@u.library.arizona.edu=20


 

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