RE: [Videolib] question on copyrights

Mark Kopp (iu8film@iu08.org)
Thu, 23 Feb 2006 09:15:29 -0500

Hey, it's GOT to better than being a hockey fan, right?

****************************************************

-----Original Message-----
From: videolib-bounces@library.berkeley.edu
[mailto:videolib-bounces@library.berkeley.edu] On Behalf Of Gary Handman
Sent: Wednesday, February 22, 2006 6:29 PM
To: videolib@library.berkeley.edu
Subject: Re: [Videolib] question on copyrights

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

_______________________________________________
Videolib mailing list
Videolib@library.berkeley.edu
http://www.lib.berkeley.edu/mailman/listinfo/videolib