Re: [Videolib] question on copyrights

Jessica Rosner (jrosner@kino.com)
Wed, 22 Feb 2006 13:48:45 -0500

Just curious Gary, irregardless of legal might of a distributor
do you really think "Fair Use" covers an entire work ? if so
Why wouldn't educational institutions be able to do pretty much
what they wanted copying & using whole films books etc and why
would the "time" have been included in the criteria?

On 2/22/06 12:51 PM, "Gary Handman" <ghandman@library.berkeley.edu> wrote:

> OK...I've kept atypically mum on this issue, but here goes (I'm in
> full cynical mode this a.m.)
>
> The bottom line re the application of fair use tests may have nothing
> to do with any of the stuff being talked about here: the bottom line
> to consider in applying the litmus and pushing the envelope (how's
> that for mixed metaphor?) is copyright holder clout and intellectual
> property vigilance. Let's face it: there IS no difference at all
> (nothing whatsoever in the law that makes any distinction) between
> Disney and small fry doc distributor when it comes to applying fair
> use tests. The reason we balk at even thinking about the former when
> it comes to claiming fair use or other rights afforded under the law
> (such as Section 108 duplication rights) is the economic might and
> big legal staffs of the studios. (Jessica, I love you, but that's
> the way it is). Conversely, there is no difference in the obligation
> of the user to pay close attention to the potential market impact of
> our actions, regardless of the nature of the content.
>
> Gary
>
>
> At 07:58 AM 2/22/2006, you wrote:
>> All,
>>
>> What are others' thoughts about fair use and weighing of the 4 factors?
>> Jessica seems to believe that if one factor weighs against the use (I
>> would not call that a violation), then that nixes fair use. This does
>> not seem a widely held conviction to me (nor supported by the law), but
>> I wanted to check with others.
>>
>> I do agree with her point that the digitizing, or using of borrowed
>> copies for fair use purposes would be a problem. However, if one weighs
>> each case individually, as one should, then this would weigh against the
>> effect of the use, and might tip the scales against fair use.
>> Otherwise, the use would be identical, in effect, as it would were the
>> item owned by the library and just put on reserve. My sense is that
>> effect is really the critical factor in this debate (for streaming
>> entire films as long as the use is limited to a class or a restricted
>> population for educational purposes and is password protected and
>> streamed). If the use negatively affects the copyright holder, it is
>> probably not a fair use. However, in many cases I don't see that
>> negative effect (and have yet to understand what it would be, except for
>> in the situation Jessica described with not owning the copy).
>>
>> 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 Susan
>> Albrecht
>> Sent: Wednesday, February 22, 2006 7:56 AM
>> To: videolib@library.berkeley.edu
>> Subject: Re: [Videolib] question on copyrights
>>
>> I think the question, though, Jessica, is why is it WORSE to stream a
>> film
>> **that the institution owns** and then password protect it and make it
>> available to only a particular class of students, than it would be to
>> have
>> it on reserve? (There is no argument, correct?, that it's okay to place
>>
>> any video a library owns on reserve?) IOW, what most of us have done in
>>
>> the past is take that VHS or DVD that we *own* and place it on
>> reserve. The students in that class would have to come into the library
>>
>> during the hours that we're open, check it out and view it here.
>> Streaming
>> and making it available, on a restricted basis, only changes the WAY in
>> which those same students view the film. In the streaming situation, no
>>
>> fewer copies of the film are being purchased. So I guess I'm scratching
>> my
>> head a little here about why this is worse than the old-fashioned
>> reserve
>> system.
>>
>> Again, if the film were streamed into a classroom, it's no different
>> than
>> the faculty member swinging by the library, checking out the video and
>> showing it in his/her classroom. I just don't see why this would cut
>> into
>> sales; the institution still has to buy the original copy that it's
>> going
>> to stream. Maybe I'm giving away my position at a very small
>> institution
>> in this response, though, and you're really thinking of large
>> universities?
>>
>> Susan at Wabash
>>
>>
>>
>> At 04:20 PM 2/21/2006 -0500, you wrote:
>>> I too appreciate the discussion but do think it is more than a stretch
>>> and potentially dangerous to suggest that fair use would allow the
>> streaming
>>> an an entire dramatic film WITHOUT the copyright holders permission. I
>> think
>>> this goes against decades of accepted copyright and assumes that if you
>> only
>>> violate ONE element of the 4 factors listed for Fair Use it is OK.
>> Taken to
>>> its extreme it would also allow to digitize and stream whole books
>> under
>>> copyright without permission etc. I don't think the idea of 3 minutes
>> or no
>>> more than 10 percent of a work was developed out of thin air. What I
>> always
>>> like to respond in these cases is that if you feel this IS legal and
>> covered
>>> than you should have the courage of your convictions and contact the
>>> copyright holder be it Kino or Disney and tell them that this is your
>>> understanding of the law and you are going to do it. While I am not a
>> big
>>> fan of how Disney and over major studios handle stuff , the truth is
>> small
>>> companies like Kino don't have the resources for much legal action (
>> though
>>> we have taken some none at this point has been against an academic
>>> institution).
>>> As for what a company would "lose" if its films are streamed into a
>>> classroom, the simple answer is the revenue we need to survive. The
>> average
>>> Kino film costs $30 and most are bought by wholesalers at a steep
>> discount
>>> If Kino sells a copy of Metropolis for $17 to a school that buys it
>> from
>>> Ingram or Amazon etc and then streams it to classes all over its
>> entire
>>> system we simply can't survive. We expect for instance different
>> campuses of
>>> an institution to buy their own copy ( though can always interlibrary
>> loan)
>>> and on very popular films a school might buy a few copies. What if the
>>> school just borrowed a legal copy from the local rental store and
>> digitized
>>> that for streaming? I assume you can see the problem. Now I think we
>> are
>>> more than open to working with schools on streaming when we have rights
>> and
>>> can have some limits on the terms. There was an old joke by Goddard
>> that
>>> eventually Hollywood would just make one film a year and everyone would
>>> watch that, well my fear of the slippery slope of thinking that you
>> can
>>> digitize whole films under "Fair Use" is that some day everyone will
>> want to
>>> digitize it from the SAME copy.
>>>
>>> For the record I personally take a liberal view of these things and
>> have
>>> allowed several schools that have closed circuit campus systems to use
>> our
>>> films AT NO EXTRA charge if it is just being sent to a single class but
>> this
>>> is a lot different from giving unlimited access to both classes and
>> students
>>> in those classes.
>>>
>>> It is already difficult and getting harder by the day to put out ANY
>> small
>>> film on DVD. There are so many wonderful foreign & classic films we
>> COULD
>>> put out if only we knew enough people would buy them. While streaming
>> should
>>> theoretically be some kind of additional revenue stream under your
>> scenario
>>> it would almost certainly be the death of putting any of these films
>> out.
>>> As it stands I doubt we will ever put out another African film and I
>> can't
>>> get Kino to release the 3 silent films by women directors that I
>> produced on
>>> video on ONE DVD for $30 because their is not enough of a market. I
>>> understand we really all want to work together so that everyone gets
>> what
>>> They need but suggesting that schools can digitize whole films without
>>> compensation to rights holders is almost guaranteed to make fewer and
>> fewer
>>> small films legally available
>>>
>>> OK long rant sorry still jet lagged
>>> Because of lack of market
>>
>> Susan Albrecht
>> Acquisitions Coordinator
>> Wabash College Lilly Library
>> Crawfordsville, IN
>> x6216
>> albrechs@wabash.edu
>>
>> ************************************************************************
>> *********
>> "If you choose not to decide, you still have made a choice."--Neil Peart
>> ************************************************************************
>> *********
>>
>>
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>
> Gary Handman
> Director
> Media Resources Center
> Moffitt Library
> UC Berkeley
> ghandman@library.berkeley.edu
> http://www.lib.berkeley.edu/MRC
>
> *****
>
> "In societies where modern conditions of production prevail,
> all of life presents itself as an immense accumulation of
> spectacles."
> --Guy Debord
>
>
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Proud Resident of a BLUE STATE

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

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