Re: [Videolib] question on copyrights

Jessica Rosner (jrosner@kino.com)
Wed, 22 Feb 2006 16:41:25 -0500

Thanks Gary
Now if I could only get you to be a Cub fan

Jessica

On 2/22/06 4:00 PM, "Gary Handman" <ghandman@library.berkeley.edu> wrote:

> I don't think fair use covers entire works in most cases...I do think
> that Section 108 as amended allows the digitization of whole works
> legally acquired, currently out of distribution, and determined to be
> physically at risk. Access in such cases would have to be fairly
> limited (library use? campus use?) to meet the conditions of fair use.
>
> Here's where my cynical comment comes in: there is no stipulation in
> this part of law that differentiates between feature films and
> everything else. I know that Jessica will blow a rod on this, but I
> think it's true. The reason most of us don't even vaguely consider
> doing this is neither technological nor legal...it's because studios
> have more muscle and are more likely to test the case than
> doc/education film folk...
>
> This is an interesting discussion line...I think, however, that
> apples and oranges are being banged together. Wonder, though, if
> what's being talked about in this thread is two, possibly three,
> distinct types of use: 1. digitization of standing collections of
> materials in a library's catalog--whole works, in other words 2)
> digitization of materials put on course reserve (either in part or in
> whole) 3) digitization of materials used in synchronous, distance
> classroom instruction (in part or in whole). There's obviously
> overlap between these three... Obviously, the digitization of
> standing collections requires securing a license to do so (unless
> Section 108 is invoked). Course reserve materials...well, I think
> there's a tendency to want to apply the same types of criteria that
> are applied in print reserves (spontaneity, short term retention,
> limited access...etc.) Not sure this flies, really. As for
> materials required for synchronous teaching in distance ed...TEACH
> pretty clearly limits its allowances to portions not wholes...
>
> The short of it is that while I'll go to the battlements for the fair
> use right to digitize and use reasonable portions of works in
> connection with learning management systems, classroom teaching,
> student and faculty publication, and the like, I can't really see any
> fair use justification for digitizing and/or delivering WHOLE works
> in any of the above contexts without permission/license.
>
> Gary
>
>
>> 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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>>>> _______________________________________________
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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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>>> Videolib@library.berkeley.edu
>>> http://www.lib.berkeley.edu/mailman/listinfo/videolib
>>
>>
>>
>> Proud Resident of a BLUE STATE
>>
>> Jessica Rosner
>> Kino International
>> 333 W 39th St. 503
>> NY NY 10018
>> jrosner@kino.com
>> 212-629-6880
>>
>>
>> _______________________________________________
>> Videolib mailing list
>> Videolib@library.berkeley.edu
>> http://www.lib.berkeley.edu/mailman/listinfo/videolib
>
> 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
>
>
> _______________________________________________
> Videolib mailing list
> Videolib@library.berkeley.edu
> http://www.lib.berkeley.edu/mailman/listinfo/videolib

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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