RE: [Videolib] RE: Insight Media's policy on digitization and

Mark Kopp (iu8film@iu08.org)
Tue, 14 Feb 2006 10:07:50 -0500

Just to clarify.... I also asked.. ["Are you making the materials
available in a digital format? If so, then that's a totally different
position."]
If the producers provides/sells a digital format, then it MUST be
purchased to be streamed. We are in agreement, in general. MY problem
is, and always will be, a business model with recurring costs. THAT was
the original issue. Things tend to "morph" in videolib, given all the
"angles" of it's readers.

Just to clarify...My organization has never digitized any of it's
titles....we do not intend to digitize any titles...the VERY REASON why
TEACH states that you MUST purchase the digital format from the producer
WHEN AVAILABLE. Personally, I am not interested in any digitization of
our materials. I would buy the digital format, before I would attempt
that kind of work.

[When Mark further states to Elana in his post, "IF said institution
meets all said requirements of the TEACH Act, they are allowed BY LAW,
to provide said video materials." This is a most troubling statement.]
I don't know why that would be troubling. Meeting the requirements of
the TEACH Act includes the need to purchase digital format from the
producer, when available.

I have also had a number of discussions "off-list", from media
centers/librarians and producers. What troubles me most (and probably is
the cause of MY consternation) is the idea that the majority of
discussion centers on the idea that we, as media centers and libraries,
are somehow conducting all-out copying/pirating, or are GOING to, if
digital licenses are offered. There seems to be a fear that we will
suddenly become criminals, if a digital copy is permitted. The
assumption is as disconcerting as the accusation.

So...all that said...Chip, I'm NOT digitizing any of your
materials...under the TEACH Act, or any other legislation, or for any
other reason. IF an institution meets all of the requirements of the
TEACH Act, it CAN digitize video materials for
"other-than-brick-and-mortar-classroom-non-face-to-face-instruction".
Since YOUR company provides a digital format and offers digital
licensing, YOUR materials are not going to be digitized for digital
distribution...ESPECIALLY by us law-abiding citizens! Of course, I was
merely the EXAMPLE, and of course it wasn't an insinuation that I MIGHT
have broken any laws or any terms of any agreement.

After all this verbiage, last time I met Chip he was with Chip Taylor
Communications, so I'LL USE HIM AS AN EXAMPLE. The TEACH Act doesn't
affect YOU since you offer a digital format...you've done your part...
nor does it affect me since I don't digitize anything...I buy the
digital format offered, thereby obeying the law.

Let me know if you are still "troubled".

Mark

************************************************************************
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-----Original Message-----
From: videolib-bounces@library.berkeley.edu
[mailto:videolib-bounces@library.berkeley.edu] On Behalf Of chip
Sent: Monday, February 13, 2006 4:32 PM
To: videolib@library.berkeley.edu
Cc: kpatters@pct.edu; mthreatt@indiana.edu; elana@insight-media.com;
John@bullfrogfilms.com; denise@pyramidmedia.com; Landmrkmed@aol.com;
jgrason@comcast.net
Subject: [Videolib] RE: Insight Media's policy on digitization and
streaming- comments on 4 references

I want to thank Elana Joffe of Insight Media for posting Insight Media's
(IM's) revised policy (#1), which clearly states IM "cannot and does not
grant anyone rights to digitize or to digitally distribute any work
under the TEACH Act." When I first read Karen's post (#2) which
incorrectly stated, "All titles purchased (via IM) may be streamed," I
immediately contacted Elana, asking her to clarify to Karen (and Monique
(#3) and the Listserv) that although IM does re-sell DVDs/VHS from
companies such as Chip Taylor Communications, which include Public
Performance Rights, those DVDs/Video copies do not include a
Digitization/Streaming license, which must be acquired separately. I
also noticed two other producer/distributor companies, Annenberg Media
and BioMedia, posted that exact information on the Listserv regarding IM
not being able to extend digitization and/or streaming rights to their
programs.
Elana acted quickly and correctly and I applaud her for wanting to set
the record straight.

I then read Mark Kopp's post (#4), stating he did not fully understand
Elana's explanation.
Then he added, "does Insight Media intend to trump US Law?"
As attorney Arnold Lutzker makes very clear many times in the "Copyright
Compliance Series,"
(Website Link: http://www.chiptaylor.com/ttlmnp4526-.cfm) - Licensing
and Contract law does trump Copyright Law.

I did not see Mark's email in the post, but the last time I met him he
worked at IU #8; so I will use IU #8 as an example. IU #8 owns 16
programs on VHS it acquired with Public Performance Rights from CTC. If
IU #8 wants to digitize and/or stream any of those VHS programs, it has
to obtain a digitization and/or streaming license from CTC or else it
would be violating the license it now has with CTC. If IU #8 purchased
DVDs or VHS from IM, it would receive only a Public Performance License;
again, if it wanted a digitization and/or streaming license, that would
have to be obtained from CTC.

When Mark further states to Elana in his post, "IF said institution
meets all said requirements of the TEACH Act, they are allowed BY LAW,
to provide said video materials." This is a most troubling statement. IU
#8 has never ordered a digitization and/or streaming license for any VHS
it acquired from CTC. If IU #8 has digitized and/or streamed any of the
above-mentioned CTC programs, IU #8 would be in violation of the terms
of its licensed agreement with CTC.

This example is one reason why I produced the "Copyright Compliance
Series"
with an attorney who is an expert in copyright and contract law. I hope
this example shows to educators and librarians on this Listserv how
important it is to know what licensing you acquire when you order your
programs, even if you order from a re-seller. IM is a re-seller of
programs with certain licensed rights. Digitization and/or streaming
rights of CTC programs are available from CTC; thus if a customer wants
to digitize and/or stream a CTC program the customer may have acquired
from IM, that customer still must obtain those rights from CTC. Perhaps
Mark's post could have suggested to Elana that IM should consider
informing customers, if they want other licensing they should contact
the producer/distributor directly (and since this is being cc'd to her,
she'll read that suggestion.)

I have seen several comments about digitization and licensing concerning
pricing. I encourage those customers who may be troubled by certain
pricing to contact companies such as CTC, as well as Annenberg Media,
Landmark Media, Bullfrog Films, and Pyramid Media, who, like me, have
negotiated very fair pricing and terms with producers regarding these
important licenses.

One last point, vendors are willing to work with customers regarding
licensing and as attorney Lutzker advises in the "Copyright Compliance
Series," it is much less expensive to secure the proper licensing than
to face potential litigation. He explains very clearly that producers
whose licensing has been violated do seek damages and because today's'
technology leaves a "digital trail," it is wise not to take unnecessary
chances.

I apologize if this post may seem like a plug for a series that I've
released; however, that really is not the case at all. After being part
of a legal case which ended upsetting a large number of vendors,
educators and librarians, not to mention the students and parents who
lost out while an expensive legal settlement was reached, I volunteered
for over 12 months to work closely with attorney Lutzker in order to
produce this much-needed and comprehensive series, which is now finally
available and should help every educator and librarian better understand
copyright and protect his/her institution from any potential violations.

Sincerely,

Chip Taylor, President
www.chiptaylor.com

Four references:

1)
In the light of the recent discussions on the list, I just wanted to
clarify any confusion that may exist on Insight Media's policy on
granting rights to stream and digitize products purchased from us.

Our policy as drafted by our legal counsel:

Insight Media cannot and does not grant anyone rights to digitize or to
digitally distribute any work under the TEACH Act. A school's right, if
any, to digitize and/or distribute a work arises under the law. It's up
to the school to determine in each case whether the school has any
rights under the TEACH Act with regard to a particular work. That
requires the school to review among other things whether it is an
institution covered by the law, it has the proper procedures in place to
comply with the law, and whether the work is eligible under the law,
taking into account how and with what rights it was obtained. Insight
Media does not give advice on whether a school has rights under the
TEACH Act, which is a decision the school should make in consultation
with legal counsel.

Elana Joffe
Vice President, Acquisitions & Development Insight Media, Inc.
212-721-6316 x103
elana@insight-media.com

----------
2)
Insight Media should be on your list. All titles purchased may be
streamed.
The only stipulation is to stay within the parameters of The Teach Act.
Also, Ambassador and School Media do not (currently) provide any
streaming.
When I spoke with customer service representatives, there was no plan to
even consider on-demand streaming. I applaud any efforts to maintain a
list and will assist in any way I can.

Karen L. Patterson
kpatters@pct.edu
Acquisitions Specialist for Books and Nonprint Media Pennsylvania
College of Technology 1-570-320-2400, ext.7781

3)
>>> mthreatt@indiana.edu 2/8/2006 6:16 PM >>>

Group,
Has anyone put together a growing list of film distributors who provide
on-demand streaming, or the digital right to encode films owned by the
media center and/or library? I know you can get this information when
you register for the National Media Market, but the specifics aren't
included i.e., license agreement loans for 1, 3, 5 years, etc. I'm not
interested in Broadcast rights via closed circuit.
I'm trying to create an internal list that will include the name of the
company, and the types of digital access available, especially for
asynchronous streaming.
For example: (this is only a draft, and may not be complete
information)
Media Digital Streaming License and/Rights Distributors:
Annenberg Media Free access (registration required) Films Media Group
30 day free access (registration required), 1 year license
agreement, 3 year license agreement, on-
demand streaming via FMG Interface, digital right to encode copy
owned by library, digital file to be
stored on local server in MPEG1, MPEG4, Windows Media, QT formats Feel
free to contact me off-line if you wish, or I'm willing to work with
someone to create the list and have it published in a non-referred
journal.
Best,
Monique Threatt
Librarian for Media, Comm & Culture
Herman B Wells Library
Indiana University Bloomington
812 855 9857

-----
4)
[Our policy as drafted by our legal counsel:] [Insight Media cannot and
does not grant anyone rights to digitize or to digitally distribute any
work under the TEACH Act. A school's right, if any, to digitize and/or
distribute a work arises under the law. It's up to the school to
determine in each case whether the school has any rights under the TEACH
Act with regard to a particular work. That requires the school to review
among other things whether it is an institution covered by the law, it
has the proper procedures in place to comply with the law, and whether
the work is eligible under the law, taking into account how and with
what rights it was obtained. Insight Media does not give advice on
whether a school has rights under the TEACH Act, which is a decision the
school should make in consultation with legal counsel.]

Ummmmmm.... I've read and re-read the aforementioned post, trying to
understand the implication....

Forgive me if I am less-than-enlightened in this regard, but does
Insight Media intend to trump US Law? How does one exempt themselves
from the LAW? "Our policy as drafted by our legal counsel:"
??????????...that's very interesting... You could possibly, under a
PURCHASE CONTRACT, limit your licensing, but I don't see how you can
exempt yourself from the TEACH Act. After having read the TEACH Act
several times, I do not recall anywhere, where it said "....unless the
company doesn't want ya to..."

Are you making the materials available in a digital format? If so, then
that's a totally different position.

If you are making a digital version, capable of a "digital transmission,
then said educational institution must purchase that format from
you...if not, the TEACH Act exemption provides for it...CONTRARY to "Our
policy as drafted by our legal counsel:"...once again, that's the whole
point of the TEACH Act...they want you to step up to digital
format...not steal your product.

IF said institution meets all said requirements of the TEACH Act, they
are allowed BY LAW, to provide said video materials. THAT'S THE POINT OF
THE TEACH ACT... If you put something "out there", it's eligible for
educational exemption. Besides, why would you NOT WISH to have a school
use your material??? I don't even understand the mindset...you produce
an educational product, but attempt to limit it's educational use!!!??
The TEACH Act provides protections for your rights.

What do YOU see as the difference between the rights for a VHS tape, vs
the rights for a digitized work? If the very same piece of information
can be viewed in perpetuity on a VHS tape, then why not, in some digital
format? What are you seeing, that I am not??? It is merely a shift in
the playback format of the very same materials! My video tape can sit on
my shelf for years, and the same material on that tape is somehow
viewable for years and years, but NOT the very same material in a
digital format??? Is that your claim??

Mark Kopp
*****************************************************

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