Re: [Videolib] another fair use question

M. Claire Stewart (
Wed, 21 Sep 2005 12:15:14 -0500

I'm not disagreeing about what's been said re: PPR; my institution
also draws the line at clubs and other non-class showings.

I would, however, like to point out that we may be mixing two
different copyright law exemptions. The exemption that mentions
face-to-face teaching is section 110; the fair use exemption is 107.
One need not qualify for/argue both. There are four fair use factors
that all must be weighed in order to use this affirmative defense.
The factor most relevant for educational use, the first factor
(character of the use), does not mention face-to-face teaching. The
closest 107 gets is a mention of multiple copies for classroom use.

The results of interpretation, that is, evaluating and weighing the
four factors in the courts, have been mixed. David Nimmer's 2003
article "Fairest of the Fair and other Fairy Tales of Fair Use"
illustrates this nicely:
. He concludes that a fair use argument is something of a crapshoot.

Something that I have realized in the last 10 years of first helping
to set up and then watching our electronic reserve system evolve is
that, so far at least, the marketplace has tolerated a very wide
spectrum of interpretations of fair use and copyright law. Some
institutions always request permission. Some never do. Many do
sometimes. Particularly at the beginning, the same absolutist, the
law is black-and-white, you-can-never-do-this, you-can-always-do-this
attitude that I've seen from some on the VIDEOLIB list existed on
both sides. The CONFU discussions and aftermath show this in somewhat
painful detail. I will never believe what others have said, that
this is a clear-cut issue. It just isn't.


At 10:21 AM -0400 9/21/05, Jessica Rosner wrote:
>I empathize and I can't imagine what titles they were or what
>company would charge so much but not you can't push the envelope on
>this one
>The law is very clear and as I get very tired of mentioning this is
>NOT "fair use" ( I think everyone just loves the sound of it). The
>that allows a whole film to be shown in a class is the "face to
>face" teaching exemption
>It is so tempting to say that the cost is just unreasonable to let
>them show it but textbooks are not at INSANE prices so do you
>just make copies for students ? Also who gets to judge what is too
>high a price for a particular film under a specific circumstance?
>I am afraid it is the rights holder or their distributor not the
>user. I think I probably charge the least of any company out there
>DVD showings because mentally I just see them as having the same
>value as my beloved film prints but I know SWANK does not
>see it that way. Also suppose the film your group wanted to show was
>an independent film still owned by the makers ? For some reason
>I notice that institutions seem to feel that it is OK to spend a
> lot more to show them.
>I am already frustrated by having to explain copyright law to small
> organizations, Jewish Community Centers, local arts groups etc.
>I have always been grateful that both public and University library
>people understood that they could not just show movies publicly and
>not pay. If I seem a bit sensitive it maybe that a company like Kino
>does not have the resources to take legal action in most cases (
>unless alas there is a lot of money involved) and other than
>forwarding the ones I catch to MPAA since they are usually violating
>studio titles as well, there is not much I can do.
>One more side pet peeve is that often when I tell a group that it
>will cost $100 or $200 to show a film on campus or at local arts
>they react like I am stealing candy from a baby but I know from
>experience that the EXACT same groups often have speakers, concerts
>dance programs etc for which they pay THOUSANDS. In the age of
>Blockbuster & Netflix public film showings have lost their
>"value" in the eyes of many but every bit as expensive to
>distribute and have just as much worth artistically
>Best I can suggest is to get for Spanish club to deal with some
>other companies and find OTHER films that would not cost as much
>Let's look at the other side of this for a minute. Because we follow
>the guidelines very closely at Middlebury, the Hispanic Alliance on
>our campus will probably not be screening two Spanish-language
>movies for their group this month. The public performance fee was
>close to a thousand dollars for the two and the club doesn't have
>that much in their budget. It doesn't require too much imagination
>to see this as somewhat of an impediment to learning. Sure, they can
>see the film if it's a part of the Spanish 101 curriculum, but they
>can't see it as a group unless they are able to shell out $1,000 for
>the privilege. Public performance prices for these sorts of programs
>are way too high. We expect to pay those prices for College-wide
>entertainment-related film series but shouldn't have to strain our
>budgets to offer realistic enrichment programs to language groups.
>We are being fair to the distributors, but are we being entirely
>fair to our students? Do we have a responsibility as educators to
>push the envelope in favor of more realistic "fair use"?
>Patricia Hornbeck
>Media Resources Development Coordinator
>Middlebury College
>Library and Information Services/#212
>Middlebury, VT 05753
>(802)443-2268 phone
>(802)443-5698 fax
>-----Original Message-----
>From: Kim Crowley
> [<]>]On
>Behalf Of Kim Crowley
>Sent: Tue, September 20, 2005 6:35 PM
>Subject: RE: [Videolib] another fair use question
>Thank you, Jessica. I did go the vidoelib archives when I had time
> and found reference to the article that is on the webpage of
>Library Video company.
> <>
> I will send this on to my colleague at the community college.
>Kim Crowley, Director
>Flathead County Library phone: 406.758.5826
>247 First Avenue East fax: 406.758.5868
>Kalispell, MT. 59901-4598
>-----Original Message-----
>From: on behalf of Jessica Rosner
>Sent: Tue 9/20/2005 2:28 PM
>To: videolib
>Subject: Re: [Videolib] another fair use question
>The law happens to very clear on this one. She can show the films to a CLASS
>of students ENROLLED in THAT class as part of the class instruction
>She can NOT show it to a student "group" or "club" only to students who are
>in her specific class.
>There is no such thing as an "educational" exemption. Only a VERY specific
>"face to face" teaching exemption. FYI this has NOTHING to do with "fair
>use" but with the above mentioned "face to face"
>I am bit tired but I am sure Gary or someone else can post the link or text
>for this in the copyright code
>> Hi all,
>> We have a community college here with a multicultural and global issues
>> program. The person in charge of this program teaches classes
>>and also does
>> some community events. She was under the impression (backed up
>>by the media
>> center, which is not the library) that since she is in a teaching
>> and these films are to further the education of the students, that she does
>> not have to have any special rights for films like "Crash" and
>>"Maria Full of
>> Grace." These are films that she would like to show her student
>>group, call
>> "Global Friends". I called her when I saw "Crash" advertised in an email
>> newsletter and she has since pulled that film and substituted "Invisible
>> Children" for which she has permission. But she is still under
>>the impression
>> that she can show "Crash" at a later date to the student club without
>> performance rights (and if they happen to bring their friends,
>>that is okay).
>> Can she show these films in the classroom without performance
>>rights? Can she
>> show them to the Global Club and friends without performance rights?
> > Thanks,
>> kc
>> Kim Crowley, Director
>> Flathead County Library phone: 406.758.5826
>> 247 First Avenue East fax: 406.758.5868
>> Kalispell, MT. 59901-4598
>> _______________________________________________
>> Videolib mailing list
>Proud Resident of a BLUE STATE
>Jessica Rosner
>Kino International
>333 W 39th St. 503
>NY NY 10018
>Videolib mailing list
>Proud Resident of a BLUE STATE
>Jessica Rosner
>Kino International
>333 W 39th St. 503
>NY NY 10018

M. Claire Stewart
Head, Digital Media Services
Marjorie I. Mitchell Multimedia Center
Coordinator of Digitization Projects
Northwestern University Library
(847) 467-1437
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