Re: [Videolib] question on copyrights

Jessica Rosner (jrosner@kino.com)
Wed, 22 Feb 2006 19:01:17 -0500

And Barry Bonds is a stockbroker right?

On 2/22/06 6:29 PM, "Gary Handman" <ghandman@library.berkeley.edu> wrote:

> 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
>
>
> _______________________________________________
> 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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