RE: [Videolib] Due diligence

Mark Kopp (mkopp@iu08.org)
Fri, 2 Jun 2006 09:54:39 -0400

I'm not going to get into this argument, per se...BUT...the one point that Jessica (I think) made, was that "due diligence" is now defined as hiring a lawyer. I'm betting the first person to make this claim WAS A LAWYER! Since when did due diligence become solely a lawyers job? I can remember, stated right here at one time, that due diligence was a Library of Congress search as well as a handful of database culls.

Since we all agree that each case needs weighed on it's own merits, there's no argument that the levy will break and every damn university, college, and library will begin showing films without permissions! The sky isn't falling every time someone asks to show a film. Each situation gets it's chance to be weighed against the four yadda yadda yadda...it's either a thumbs up or a thumbs down...and then it's over and on to the next case. Just because ONE situation went one way or the other, does NOT mean that it's open season on rights holders, nor does it mean that going forward, EVERY film is available for "free use".

It's Friday...this was too much to think about on a Friday. Besides, there are some very serious issues that we need to consider...
http://www.atlanticbb.net/news/read.php?id=14133022&ps=1020&cat=&cps=0&lang=en

Have a grrrrreat weekend!

Mark
************************************************

-----Original Message-----
From: owner-videolib@lists.berkeley.edu [mailto:owner-videolib@lists.berkeley.edu] On Behalf Of Rick Provine
Sent: Friday, June 02, 2006 8:40 AM
To: videolib@lists.berkeley.edu
Subject: Re: [Videolib] Due diligence

Jessica:

"Transformative" is merely one consideration of the first test of Fair Use, "The Purpose and Character of your use." Transformative, in and of itself, does not make or break a fair use case, though the law favors it. All four factors must be weighed.

Fair Use is not intended to address any real specific instance, not deny any specific use. It merely recognizes that there will be acceptable uses of copyrighted material without permission or payment.

I agree with Gary...this does not mean "open season" on copyright or rights holders. But it does mean that progress can still be made in the absence of a workable system. Fair use is claimed on entire works all of the time (see Reserve Reading).

Certainly in practice, the use of an entire work is more difficult to get past the four factors. But, it is NOT excluded by statute. Fair use is deliberately vague to allow for interpretation.

Rick

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>>> jrosner@kino.com 06/01/06 7:07 PM >>>
Ok Gary then tell me why in the entire history of FU has it ALWAYS been legally interpreted as being right to INCORPORATE something into another work.
The legal term is in fact ³transformative² FU has in every case been used as right to TRANSFORM or USE something IN ANOTHER WORK So to use clips, quotes etc IN ANOTHER work. It has never ever been used to allow a COMPLETE work by itself so yes in this case you are just making up law. I don¹t think even the most copyright hating lawyer/ artist would EVER suggest That ³fair use² can EVER and I mean ever be justified as a way of showing a complete work under copyright

Find me any instance where this has been done or argued.

.

I will if you like get you quotes from ³fair use² cases which refer to is ³transformative² nature

Seriously you KNOW that ³fair use² is intended and has developed as limited right under certain circumstances to use An otherwise copyrighted work as PART of another work.

Other than WANTING it to be otherwise and because frankly it sound nice , I mean gee this should be ³Fair² right ? How can you justify this.

Also going back as I seem to be the only one who wants to to the ORIGINAL question , what the ³F² would ³Fair use² have to do With showing this film ? The question was if you can¹t basically afford to track down a difficult to locate copyright holder , can you show the film anyway? So please explain how this is remot

VIDEOLIB is intended to encourage the broad and lively discussion of issues relating to the selection, evaluation, acquisition,bibliographic control, preservation, and use of current and evolving video formats in libraries and related institutions. It is hoped that the list will serve as an effective working tool for video librarians, as well as a channel of communication between libraries,educational institutions, and video producers and distributors.

VIDEOLIB is intended to encourage the broad and lively discussion of issues relating to the selection, evaluation, acquisition,bibliographic control, preservation, and use of current and evolving video formats in libraries and related institutions. It is hoped that the list will serve as an effective working tool for video librarians, as well as a channel of communication between libraries,educational institutions, and video producers and distributors.