Re: [Videolib] question on copyrights

Gary Handman (ghandman@library.berkeley.edu)
Wed, 22 Feb 2006 15:29:02 -0800

Cubs...cubs...hmmmm

My daughter still have to remind me constantly of the difference
between the Oakland Raiders and the Oakland As...(ain't they both
lacrosse teams?)

g.

At 01:41 PM 2/22/2006, you wrote:
>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
> >>>> ************************************************************************
> >>>> *********
> >>>>
> >>>>
> >>>> _______________________________________________
> >>>> Videolib mailing list
> >>>> Videolib@library.berkeley.edu
> >>>> http://www.lib.berkeley.edu/mailman/listinfo/videolib
> >>>>
> >>>> _______________________________________________
> >>>> 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
> >>
> >>
> >> _______________________________________________
> >> 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
>
>
>_______________________________________________
>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

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