Re: [Videolib] question on copyrights

Wed, 22 Feb 2006 16:35:25 -0500

---- Original message ----
>Date: Wed, 22 Feb 2006 13:14:01 -0500
>From: Jerry Notaro <>
>Subject: Re: [Videolib] question on copyrights
>To: ""
>> This is my 2 cents on it,
>> When you put a DVD on course reserve, you are not changing
the format. When
>> you transfer the DVD into an electronic format you are
making a copy in a
>> different format which is already illegal.
>Streaming a DVD is not changing the format. Viewing DVD's on
an analog
>television is actually changing the format, from digital to

Clever idea, Jerry.... By this reckoning, if we shouldn't
change the format (to analog viewing as well as to analog
copy) then we should only be viewing DVDs on a PC monitor,
right? ;)

There've been a lot of interesting thoughts back and forth on
this subject. I'm sorry I've been so busy as to not respond
before now.

As Gary just recently suggested, practical legal clout and
risk factor into the "theoretical" construction of what's fair
use. But I think this obligates those of us who are
institutional users to always try and walk the line: be as
"fair" in what we do to our little-guy vendor colleagues as
we'd be to the big guys with the lawyers and especially
watchful eyes. And if we like to apply what we consider "fair"
rather generously... we ought to do that once in a while to
Disney, too. ;)

A few more thoughts on the FU and streaming issue.

What if you justified FU with the following measures:

1. Digitize and stream a video program on a password-protected
server, only to your same authorized institutional users who
have access to your physical collection--whether on-campus or
off-campus. But access is also metered, so only one viewer at
a time is possible.

2. The original tape/DVD is a legal copy, and NOT also
circulated. It's kept in archive as the legit backup of the
streamed version.

3. At the same time, you've also bought a second copy, which
DOES circulate in your physical collection.

4. Should the circulating collection copy need replacement, it
would be, if you intend to continue the streaming service,
too. Where titles go out of print and get lost, damaged etc.
under sec 108, your actions to preserve both the physical
collection and streamed versions are warranted when you comply
with the provisions there.

This strategy is the closest analogy to the physical
collection service realm I can see right now.

What it does do:

Works on the copyright practice tradition that you may own the
copy under the first sale doctrine, but if you need more than
one copy at a time, darn well buy them. The first sale
ownership principle is conditioned/limited by the real
physical world: legal copies eventually wear out. The second
circulating copy in my strategy above answers to this reality
by providing a real-world gauge that limits how long and under
what circumstances the streamed version is made available.

What it doesn't do:

1. Overcome sales that aren't firsts, but contractual leases.
(Those pesky things!) ;)

2. Prevent physical copying of the stream for those with the
knowledge (the younger, the more likely perhaps). A tape or
DVD that circulates can be copied, too, of course. And as
suggested elsewhere, the nature of the content may lead to
either more or less desire to bother copying a disc or
capturing a stream. (Frankly, I think that for
educational--not Disney--programming, it's more likely that
our faculty would have a motivation to copy this stuff for
colleagues at other institutions without access, than for our
students to do so. I'm not passing definitive judgment here,
of course.) ;)

3. Address the issue of whether a FU that involves copying of
the whole can be justified as "fair", no matter how positively
the other three factors figure. The Google digital book
service lawsuits may help point the way to some extent. Even
though Google is not offering access to entire books that
they've digitized.

4. Finally, my strategy is already talking 'way beyond what we
used to consider. If we even entertain this idea as "fair"...
why didn't we think we could do the same thing on closed
circuit TV, without specific rights? Our thinking changes and
grows bolder over time. But that's not to put my idea down:
It's just to recognize the cultural forces with the passage of
time that condition our thinking, even when it tries to be


Jeff Clark
Media Resources MSC 1701
James Madison University
Harrisonburg VA 22807 (email)
540-568-6770 (phone)
540-568-7037 (fax)
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