RE: [Videolib] TEACH act for streaming

& (clarkjc@jmu.edu)
Tue, 26 Apr 2005 08:45:39 -0400

Michael, in answer to your final thought...

I'm not sure what you mean when you say you're not sure you
agree with my last statement. If that's basically "TEACH
doesn't support streaming video, period"--then I should make
sure I qualify further:

1. TEACH doesn't support streaming/downloading of video for
ENTIRE programs. Period.

2. TEACH doesn't support streaming/downloading of "reasonable
portions" of video programs without also proper access and
copy protection measures, and copyright education, in place
for users.

3. Even #2 isn't possible if the video progamming being used
is available also in digital form meant for networked
distribution. That version would have to be acquired and used
instead.

4. The "reasonable portion" of programming that can be used
does NOT necessarily have to meet the 4 fair use factors test.

5. But fair use is something distinct from the TEACH
performance provision in 110. Fair use can involve
performance too and, although you have to consider FU in
light of the 4 criteria, it MIGHT be possible to apply it to
entire programs under certain circumstances. I know that this
is done... but I have problems with it, too, when reading
sec. 106. The third FU criterion reads:
"(3) the amount and substantiality of the portion used in
relation to the copyrighted work as a whole;"
Here again, the word "portion" occurs. The most logical way
to interpret it is the way in which it is used elsewhere in
the law--most readily, in the TEACH 110 update itself. This
would suggest to me that we're still talking about less-than-
the-whole in both cases. That's the most common dictionary
definition of the word (although some of them don't even list
this as the first def. of the word, none of the other defs.
applies at all). Unless the implied limit in the
amount/portion criterion, ON BALANCE, were overriden by the
positive force of the other three criteria applied in an FU
defense justification. But you can't take this approach with
TEACH: there are no criteria to consider in a complicated
balance--only a clear limitation specified by the
word "portion".

Jeff... wishing I didn't have to be so fussy about language;
professional life and service would be so much simpler... ;)

---- Original message ----
>Date: Mon, 25 Apr 2005 14:15:31 -0700
>From: "Brewer, Michael" <brewerm@u.library.arizona.edu>
>Subject: RE: [Videolib] TEACH act for streaming
>To: <videolib@library.berkeley.edu>
>
>Wow! This is eye opening. I had not made the distinction in
the law in this section between performance and display.
Thanks for pointing it out. Now that I read it with this in
mind, it is clear that TEACH would not support the streaming
of entire films. I am not sure I agree with your last
statement, though.
>
>The
>construction of sec. 110(2) therefore DOES NOT support
>digitally networked distribution, by
>streaming/download/whatever, of movies/videos/whathaveyou.
>PERIOD.
>
>It seems to clarly allow for the performance of just about
anything (other than those things that were acquired
unlawfully or those films made for the purpose of pedagogy)
in reasonable, limited portions.
>
>the performance of a
>> nondramatic literary or musical work or reasonable
>> and limited portions of any other work, or display
>> of a work in an amount comparable to that which is
>> typically displayed in the course of a live
>> classroom session, by or in the course of a
>> transmission, if -
>
>Michael Brewer
>
>
>
> -----Original Message-----
> From: videolib-bounces@library.berkeley.edu on behalf
of clarkjc@jmu.edu
> Sent: Mon 4/25/2005 10:38 AM
> To: videolib@library.berkeley.edu
> Cc:
> Subject: Re: [Videolib] TEACH act for streaming
>
>
>
> Yipes... we need to go over this stuff again. It's the
> principle of eternal return, perhaps...
>
> I'm in the "reasonable portion" camp for the use of
motion
> pix/videorecordings/av
programs/whathaveyouthat'slikeit.
>
> At one time in the past (and I can't locate the
message I
> thought I'd saved), I pointed out the interpretive
> distinction in the section that Michael Brewer quotes
below.
> In the Senate Report that accompanied the TEACH bill
(you can
> find this at the teachtoolkit site at North Carolina
State),
> it made clear that movies fall into performance, not
display.
> And by construction of the section Mike quotes, you
can see
> that what's typically shown in class is a clause
connected
> ONLY to display. Movies can be displayed if it's a
frame at a
> time (and NOT in sequence, smart aleck!)... but they
are
> otherwise performed.
>
> But we don't have to rely on a dangling Senate report
only.
> Look at the top of Title 17, chap. 1, sec. 101. The
> definitions there make it clear:
>
> ===============
> To “display” a work means to show a copy of it, either
> directly or by means of a film, slide, television
image, or
> any other device or process or, in the case of a
motion
> picture or other audiovisual work, to show individual
images
> nonsequentially.
> ===============
> To “perform” a work means to recite, render, play,
dance, or
> act it, either directly or by means of any device or
process
> or, in the case of a motion picture or other
audiovisual
> work, to show its images in any sequence or to make
the
> sounds accompanying it audible.
> ===============
>
> Whenever either "perform" or "display" are used in
copyright
> law, they need to be understood in these terms. The
> construction of sec. 110(2) therefore DOES NOT support
> digitally networked distribution, by
> streaming/download/whatever, of
movies/videos/whathaveyou.
> PERIOD.
>
> Okay. Going off now to take my medication... ;) Jeff
>
> ---- Original message ----
> >Date: Mon, 25 Apr 2005 00:11:10 -0500
> >From: Mark Richie <n2books@frontiernet.net>
> >Subject: Re: [Videolib] TEACH act for streaming
> >To: videolib@library.berkeley.edu
> >
> > OK - I give up - this is the site I draw my
> > information from -
> >
>
http://www.utsystem.edu/ogc/intellectualproperty/teach
act.htm
> >
> > It is maintained by the University of Texas System
> > for their professors. Somehow I think the limited
> > portion of an audio-visual work allowed for
> > streaming (that they maintain on their page) is
tied
> > up in the difference between a performance and a
> > display. Perhaps someone would be good enough to
> > email them for a clarification of their wording.
> >
> > And so it goes . . . MLR
> >
> > Brewer, Michael wrote:
> >
> > All,
> >
> >
> >
> > I erred (as I mentioned before) about streaming
to
> > classrooms. Though this is being done by some
> > who claim Fair Use (not me! But by others who
> > will remain unnamed), I don't think that it is
> > widely accepted.
> >
> >
> >
> > No one did respond to the below email, however,
> > about streaming entire films using TEACH as an
> > exemption. I would be interested to hear if
> > others read the law the same way I do (as
allowing
> > it in certain situtations).
> >
> >
> >
> > Here is my former message:
> >
> >
> >
> > ---------------------------------
> >
> >
> >
> > Jessica,
> >
> >
> >
> > Here is the text [from TEACH]: (from:
> >
http://www.copyright.gov/title17/92chap1.html#110
> > ).
> >
> >
> >
> > (2) except with respect to a work produced or
> > marketed primarily for performance or display as
> > part of mediated instructional activities
> > transmitted via digital networks, or a
performance
> > or display that is given by means of a copy or
> > phonorecord that is not lawfully made and
acquired
> > under this title, and the transmitting
government
> > body or accredited nonprofit educational
> > institution knew or had reason to believe was
not
> > lawfully made and acquired, the performance of a
> > nondramatic literary or musical work or
reasonable
> > and limited portions of any other work, or
display
> > of a work in an amount comparable to that which
is
> > typically displayed in the course of a live
> > classroom session, by or in the course of a
> > transmission, if -
> >
> >
> >
> > The place where I see most websites err in
> > reference to this document (in my understanding)
> > is that they do not note all the ORs. I have
been
> > in multiple classes in which an entire film (or
> > more than one film) were shown. The above does
> > not seem to exclude that, as it states that an
> > "amount comparable to that which is typically
> > displayed in the course of a live classroom
> > session" is ok for TEACH. It does not qualify
> > this statement with the former (i.e. it does not
> > say that you can show an amount comparable to
that
> > with is typically shown in class IF it is a
> > limited portion. It allows for reasonable and
> > limited portions of works OR amounts shown in a
> > class). This may be splitting hairs, but I
think
> > it is an important distinction, if in fact this
is
> > what is meant here. I can't say with absolute
> > certainty that it is, but it sure seems like it.
> >
> >
> >
> > 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: videolib-bounces@library.berkeley.edu
> > [mailto:videolib-bounces@library.berkeley.edu]
On
> > Behalf Of Mark Richie
> > Sent: Friday, April 22, 2005 3:35 PM
> > To: videolib@library.berkeley.edu
> > Subject: Re: [Videolib] TEACH act for streaming
> >
> >
> >
> > Kudos Deg -
> > Dealing with the definition of "distance" within
> > TEACH is minimal compared to other limitations -
> > to whit: TEACH only allows streaming (or
> > downloading) of portions of a video and only
> > portions of videos that are not copy protected
on
> > the open market. (eg: if the video in question
is
> > available on the physical market only in a copy
> > protected form, the permissive provisions of the
> > act do not apply.)
> > The act also prohibits the
collection
> > of clips in an archive for repeated downloading
> > (as in: an on-line digital video library). To
> > create a cataloged and accessible digital video
> > library TEACH leave no alternative but to get
> > digital distribution rights from producers -
easy
> > enough for curriculum driven productions - near
> > impossible for entertainment, classic films et
al.
> >
> > M. L. Richie
> >
> > "One must be so careful about what
one
> > says in a free country," Dick Cavett
> >
>
+++++=================================================
++++++++
> +
> >
> > Deg Farrelly wrote:
> >
> > Sorry....
> >
> >
> >
> > TEACH Act covers DISTANCE ed, not digitization to
campus
> classrooms.
> >
> >
> >
> > Can you cite references that indicate it covers
streaming
> to classrooms?
> >
> >
> >
> > deg farrelly
> >
> > Arizona State University at the West Campus
> >
> > Phoenix, Arizona
> >
> >
> >
> >
> >
> >
> >
> >
> >
> > -----Original Message-----
> >
> > From: videolib-bounces@library.berkeley.edu on
behalf of
> Brewer, Michael
> >
> > Sent: Fri 4/8/2005 8:08 AM
> >
> > To: videolib@library.berkeley.edu
> >
> > Cc:
> >
> > Subject: RE: [Videolib] lending video and film
> >
> > Why are you having to worry about licensing?
Streaming
> into the classroom is covered by the TEACH act (in my
> opinion, and in the opinion of nearly all others I
have
> read). We are looking into this technology, but I
doubt we
> will move on it in the near future (on a large
scale), though
> our library dean is interested in the idea.
> >
> >
> >
> > mb
> >
> >
> >
> > Michael Brewer
> >
> >
> >
> >
> >
> >
> >
> > ----------------------------------------------
> >
> >
> >
> >
> >
> > _______________________________________________
> >
> > 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)
>
> _______________________________________________
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>
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===========
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)

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