Re: [Videolib] whoa! what a flurry of emails on film clips

Jessica Rosner (maddux2014@gmail.com)
Tue, 24 Mar 2009 12:17:07 -0400

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CarrieOne quick response. Streaming is NOT the same as face to face and it
is not just greedy studio people who would like to be paid for this use. If
you were talking about streaming TO a classroom that would be one thing but
this is done so students can see films in essence at their convenience.
While this might make things nice and easy it is not really their "right" t=
o
watch the film anytime , anywhere so long as it is part of course. Regular
bricks and mortar classes have plenty of opportunity to see a work either i=
n
class or at the library.It is fact the smaller companies that are hit
hardest when the concept of streaming a whole work without paying any fee i=
s
proposed. I grant you that some of the current "models" are out of whack
price wise but hopefully that can work out. I am curious is it your belief
that
an entire book can be scanned and posted on line for a class provided it i=
s
"password protected" ?

I am alsol curious about an example of an entire film being considered "Fai=
r
Use" . The only example I recall involved what would be called exigent
circumstances but at most meant that the institution would have to pay for
it after the fact not that it was actually covered so if you have an exampl=
e
I would love to hear it.

On Tue, Mar 24, 2009 at 11:54 AM, Carrie Russell <crussell@alawash.org>wrot=
e:

> I am writing again to try and clarify what I said and have said in the
> past about the TEACH Act, about fair use and about anti-circumvention.
>
>
>
> 1. TEACH Act applies to both synchronous and asynchronous teaching. I=
t
> also applies to the blended classroom =96 meaning you might be taking =
a
> regular face-to-face class but the teacher may use digital technologie=
s to
> deliver content to the classroom and to secure, networks for enrolled
> students only (like Blackboard). I quoted from the legislative histor=
y to
> explain this in an earlier post.
>
>
>
> 1. TEACH limits the public performance of audiovisual works (including
> DVDs) to portions necessary to meet the teaching goal. Throughout Sec=
tion
> 110(2), we are reminded that one can use the portions that they would
> typically use in the analog/video/16mm classroom, but for audio visual=
works
> the law is saying even though you would ordinarily screen an entire fi=
lm in
> the face-to-face classroom, you cannot do that under TEACH. Audiovisu=
al
> works are treated differently than most other works in TEACH.
>
>
>
> 1. Switching over to fair use (Section 107) -- The third factor of fai=
r
> use asks that we consider the amount of work we want to use. If one c=
an
> generalize, the less you use, the more likely your use is fair. HOWEV=
ER,
> the third factor is only one factor that we are asked to consider in m=
aking
> a fair use assessment. So, it is POSSIBLE that screening an entire fil=
m via
> a digital network might be fair given the specific facts of the situat=
ion at
> hand.
>
>
>
> (Editorial comment: I have been asked before to give an example of when i=
t
> might be fair to show an entire film via a digital network. Some people =
on
> the list cannot imagine a situation when it would ever be fair to show an
> entire film. Other people think it could be possible and they may even b=
e
> doing it. Other people think this part of TEACH is absurd since the same
> use is occurring for teaching purposes whether on Blackboard or in the
> classroom so what is the difference. The difference is that lobbyists fo=
r
> the motion picture industry fought hard to get this special treatment in
> order to establish a new revenue stream for licensing films for streaming=
.
> Even though you bought a DVD for teaching purposes, some vendors would li=
ke
> you to pay again in order to stream it).
>
>
>
> 1. Fair use guidelines (10% of this, 10 lines of that etc) are MADE UP
> rules. They are not in the law ANYWHERE. You may choose to use guide=
lines
> as your local policy but they do not have the force and effect of law.
>
>
>
> 1. On to anti-circumvention -- The DMCA put in effect a new legal way
> for rights holders to protect the use of their works primarily to cont=
rol
> the unauthorized use of digital content that had not been lawfully acq=
uired
> (paid for). It is a deviation from the rest of the copyright law in t=
hat it
> controls ACCESS. Under the copyright law=92s exclusive rights, there =
is no
> right of access =96 for example, you can go to the bookstore, and look=
at
> books and magazines, even read an article or two, without permission f=
rom
> the rights holder -- but the DMCA adds this right of access for digit=
al
> works. This makes sense to an extent because one should pay to have d=
igital
> access (like with your cable bill). It would be wrong to snag a cable=
box
> and get free cable. The thought was that rights holders need to make m=
oney
> on digital works which are obviously more vulnerable to easy copying a=
nd
> distribution so this provision is necessary.
>
>
>
> 1. The problem with digital locks comes into play when one wants to us=
e
> a work in a lawful way but the technology prevents them from doing so.=
For
> example, the library buys lots of DVDs. Many are encrypted with conte=
nt
> scrambling to prevent copying. But some copying is fair, such as show=
ing
> clips of DVDs in the classroom. If you circumvent the technology in o=
rder
> to make the lawful clip, you are in violation of the DMCA anti-circumv=
ention
> provision (described above). You may be exercising fair use, but you =
broke
> a code to do it and breaking the code is against the anti-circumventio=
n
> provision.
>
>
>
> 1. Congress thought this might be a problem, so they added rulemaking
> proceedings to occur every three years to find out if the anti-circumv=
ention
> provision was preventing the public from exercising fair use. One exe=
mption
> to the anti-circumvention provision that has been approved for several=
years
> is that one can circumvent an e-book to enable the read aloud function=
so
> the reading impaired can listen to an e-book they have lawfully acquir=
ed.
>
>
>
> 1. Currently under consideration is whether faculty can circumvent CSS
> technology on DVDs that they have purchased, in order to copy a clip f=
or use
> in the face-to-face classroom.
>
>
>
> 1. Finally to complicate matters =96 back to TEACH (which was passed
> after the DMCA). If you wanted to use a clip from a DVD but could not=
do so
> because of anti-circumvention, TEACH says you can go ahead and digitiz=
e an
> analog version of the title in order to create the digital clip to use=
for
> teaching. TEACH spells this out specifically because Congress does no=
t want
> you to violate the DMCA in order to exercise a right they give you in
> TEACH. If you can only find your title in a format that is encrypted =
(there
> are no unencrypted version like a videotape), you are out of luck. Yo=
u
> cannot break the code on the encrypted DVD UNLESS it is decided that t=
hese
> works are exempt in the DMCA rulemaking. At this time, they are exemp=
t for
> faculty who teach film or media studies, not for any other faculty unl=
ess
> there is a change made at the rulemaking to expand the provision.
>
>
>
> 1. As my cataloging professor use to say, =93Clear as mud?=94
>
>
>
> Carrie Russell, Director
>
> Program on Public Access to Information
>
> American Library Association
>
> Office for Information Technology Policy
>
> 1615 New Hampshire Avenue NW, First Floor
>
> Washington, DC 20009
>
> 202.628.8410/800.941.8478
>
> 202.628.8419 (fax)
>
> crussell@alawash.org
>
>
>
>
>
> VIDEOLIB is intended to encourage the broad and lively discussion of issu=
es
> 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 effectiv=
e
> working tool for video librarians, as well as a channel of communication
> between libraries,educational institutions, and video producers and
> distributors.
>
>

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Carrie<div>One quick response. Streaming is NOT the same as face to face an=
d it is not just greedy studio people who would like to be paid for this us=
e. If you were talking about streaming TO a classroom that would be one thi=
ng but this is done so students can see =A0films in essence at their conven=
ience. While this might make things nice and easy it is not really their &q=
uot;right&quot; to watch the film anytime , anywhere so long as it is part =
of course. Regular bricks and mortar classes have plenty of opportunity to =
see a work either in class or at the library.It is fact the smaller compani=
es that are hit hardest when the concept of streaming a whole work without =
paying any fee is proposed. I grant you that some of the current &quot;mode=
ls&quot; are out of whack price wise but hopefully that can work out. I am =
curious is it your belief that</div>
<div>an entire book can be scanned and posted on =A0line for a class provid=
ed it is &quot;password protected&quot; ?</div><div><br></div><div>I am als=
ol curious about an example of an entire film being considered &quot;Fair U=
se&quot; . The only example I recall involved what would be called exigent =
circumstances but at most meant that the institution would have to pay for =
it after the fact not that it was actually covered so if you have an exampl=
e I would love to hear it.<br>
<br><div class=3D"gmail_quote">On Tue, Mar 24, 2009 at 11:54 AM, Carrie Rus=
sell <span dir=3D"ltr">&lt;<a href=3D"mailto:crussell@alawash.org">crussell=
@alawash.org</a>&gt;</span> wrote:<br><blockquote class=3D"gmail_quote" sty=
le=3D"margin:0 0 0 .8ex;border-left:1px #ccc solid;padding-left:1ex;">

<div lang=3D"EN-US" link=3D"blue" vlink=3D"purple">

<div>

<p><font size=3D"2" face=3D"Book Antiqua"><span style=3D"font-size:11.0pt;f=
ont-family:&quot;Book Antiqua&quot;">I am writing again to try and clarify =
what I
said and have said in the past about the TEACH Act, about fair use and abou=
t
anti-circumvention.=A0 </span></font></p>

<p><font size=3D"2" face=3D"Book Antiqua"><span style=3D"font-size:11.0pt;f=
ont-family:&quot;Book Antiqua&quot;">=A0</span></font></p>

<ol style=3D"margin-top:0in" start=3D"1" type=3D"1">
<li><font size=3D"2" face=3D"Book Antiqua"><span style=3D"font-size:11.0pt=
;font-family:&quot;Book Antiqua&quot;">TEACH
Act applies to both synchronous and asynchronous teaching.=A0 It also
applies to the blended classroom =96 meaning you might be taking a
regular face-to-face class but the teacher may use digital technologie=
s to
deliver content to the classroom and to secure, networks for enrolled
students only (like Blackboard).=A0 I quoted from the legislative hist=
ory
to explain this in an earlier post. </span></font></li>
</ol>

<p><font size=3D"2" face=3D"Book Antiqua"><span style=3D"font-size:11.0pt;f=
ont-family:&quot;Book Antiqua&quot;">=A0</span></font></p>

<ol style=3D"margin-top:0in" start=3D"2" type=3D"1">
<li><font size=3D"2" face=3D"Book Antiqua"><span style=3D"font-size:11.0pt=
;font-family:&quot;Book Antiqua&quot;">TEACH
limits the public performance of audiovisual works (including DVDs) to
portions necessary to meet the teaching goal.=A0 Throughout Section
110(2), we are reminded that one can use the portions that they would
typically use in the analog/video/16mm classroom, but for audio visual
works the law is saying even though you would ordinarily screen an ent=
ire
film in the face-to-face classroom, you cannot do that under TEACH. =
=A0Audiovisual
works are treated differently than most other works in TEACH. </span><=
/font></li>
</ol>

<p><font size=3D"2" face=3D"Book Antiqua"><span style=3D"font-size:11.0pt;f=
ont-family:&quot;Book Antiqua&quot;">=A0</span></font></p>

<ol style=3D"margin-top:0in" start=3D"3" type=3D"1">
<li><font size=3D"2" face=3D"Book Antiqua"><span style=3D"font-size:11.0pt=
;font-family:&quot;Book Antiqua&quot;">Switching
over to fair use (Section 107) -- The third factor of fair use asks th=
at
we consider the amount of work we want to use.=A0 If one can
generalize, the less you use, the more likely your use is fair.=A0
HOWEVER, the third factor is only one factor that we are asked to cons=
ider
in making a fair use assessment. So, it is POSSIBLE that screening an
entire film via a digital network might be fair given the specific fac=
ts
of the situation at hand.=A0 </span></font></li>
</ol>

<p><font size=3D"2" face=3D"Book Antiqua"><span style=3D"font-size:11.0pt;f=
ont-family:&quot;Book Antiqua&quot;">=A0</span></font></p>

<p style=3D"margin-left:.25in"><font size=3D"2" face=3D"Book Antiqua"><span=
style=3D"font-size:11.0pt;font-family:&quot;Book Antiqua&quot;">(Editorial=
comment: I have
been asked before to give an example of when it might be fair to show an en=
tire
film via a digital network.=A0 Some people on the list cannot imagine a
situation when it would ever be fair to show an entire film.=A0 Other peopl=
e
think it could be possible and they may even be doing it.=A0 Other people
think this part of TEACH is absurd since the same use is occurring for teac=
hing
purposes whether on Blackboard or in the classroom so what is the
difference.=A0 The difference is that lobbyists for the motion picture
industry fought hard to get this special treatment in order to establish a =
new
revenue stream for licensing films for streaming.=A0 Even though you bought
a DVD for teaching purposes, some vendors would like you to pay again in or=
der
to stream it). =A0</span></font></p>

<p><font size=3D"2" face=3D"Book Antiqua"><span style=3D"font-size:11.0pt;f=
ont-family:&quot;Book Antiqua&quot;">=A0</span></font></p>

<ol style=3D"margin-top:0in" start=3D"4" type=3D"1">
<li><font size=3D"2" face=3D"Book Antiqua"><span style=3D"font-size:11.0pt=
;font-family:&quot;Book Antiqua&quot;">Fair
use guidelines (10% of this, 10 lines of that etc) are MADE UP
rules.=A0 They are not in the law ANYWHERE.=A0 You may choose to use
guidelines as your local policy but they do not have the force and eff=
ect
of law. </span></font></li>
</ol>

<p><font size=3D"2" face=3D"Book Antiqua"><span style=3D"font-size:11.0pt;f=
ont-family:&quot;Book Antiqua&quot;">=A0</span></font></p>

<ol style=3D"margin-top:0in" start=3D"5" type=3D"1">
<li><font size=3D"2" face=3D"Book Antiqua"><span style=3D"font-size:11.0pt=
;font-family:&quot;Book Antiqua&quot;">On
to anti-circumvention -- The DMCA put in effect a new legal way for ri=
ghts
holders to protect the use of their works primarily to control the
unauthorized use of digital content that had not been lawfully acquire=
d
(paid for).=A0 It is a deviation from the rest of the copyright law in
that it controls ACCESS.=A0 Under the copyright law=92s exclusive
rights, there is no right of access =96 for example, you can go to the
bookstore, and look at books and magazines, even read an article or tw=
o,
without permission from the rights holder -- =A0but the DMCA adds this=
right
of access for digital works.=A0 This makes sense to an extent because
one should pay to have digital access (like with your cable bill).=A0 =
It
would be wrong to snag a cable box and get free cable. The thought was
that rights holders need to make money on digital works which are
obviously more vulnerable to easy copying and distribution so this
provision is necessary. </span></font></li>
</ol>

<p><font size=3D"2" face=3D"Book Antiqua"><span style=3D"font-size:11.0pt;f=
ont-family:&quot;Book Antiqua&quot;">=A0</span></font></p>

<ol style=3D"margin-top:0in" start=3D"6" type=3D"1">
<li><font size=3D"2" face=3D"Book Antiqua"><span style=3D"font-size:11.0pt=
;font-family:&quot;Book Antiqua&quot;">The
problem with digital locks comes into play when one wants to use a wor=
k in
a lawful way but the technology prevents them from doing so.=A0 For
example, the library buys lots of DVDs.=A0 Many are encrypted with
content scrambling to prevent copying.=A0 But some copying is fair,
such as showing clips of DVDs in the classroom.=A0 If you circumvent
the technology in order to make the lawful clip, you are in violation =
of the
DMCA anti-circumvention provision (described above). =A0You may be
exercising fair use, but you broke a code to do it and breaking the co=
de
is against the anti-circumvention provision. </span></font></li>
</ol>

<p><font size=3D"2" face=3D"Book Antiqua"><span style=3D"font-size:11.0pt;f=
ont-family:&quot;Book Antiqua&quot;">=A0</span></font></p>

<ol style=3D"margin-top:0in" start=3D"7" type=3D"1">
<li><font size=3D"2" face=3D"Book Antiqua"><span style=3D"font-size:11.0pt=
;font-family:&quot;Book Antiqua&quot;">Congress
thought this might be a problem, so they added rulemaking proceedings =
to
occur every three years to find out if the anti-circumvention provisio=
n
was preventing the public from exercising fair use.=A0 One exemption t=
o
the anti-circumvention provision that has been approved for several ye=
ars
is that one can circumvent an e-book to enable the read aloud function=
so
the reading impaired can listen to an e-book they have lawfully acquir=
ed. </span></font></li>
</ol>

<p><font size=3D"2" face=3D"Book Antiqua"><span style=3D"font-size:11.0pt;f=
ont-family:&quot;Book Antiqua&quot;">=A0</span></font></p>

<ol style=3D"margin-top:0in" start=3D"8" type=3D"1">
<li><font size=3D"2" face=3D"Book Antiqua"><span style=3D"font-size:11.0pt=
;font-family:&quot;Book Antiqua&quot;">Currently
under consideration is whether faculty can circumvent CSS technology o=
n
DVDs that they have purchased, in order to copy a clip for use in the
face-to-face classroom.</span></font></li>
</ol>

<p><font size=3D"2" face=3D"Book Antiqua"><span style=3D"font-size:11.0pt;f=
ont-family:&quot;Book Antiqua&quot;">=A0</span></font></p>

<ol style=3D"margin-top:0in" start=3D"9" type=3D"1">
<li><font size=3D"2" face=3D"Book Antiqua"><span style=3D"font-size:11.0pt=
;font-family:&quot;Book Antiqua&quot;">Finally
to complicate matters =96 back to TEACH (which was passed after the
DMCA).=A0 If you wanted to use a clip from a DVD but could not do so b=
ecause
of anti-circumvention, TEACH says you can go ahead and digitize an ana=
log
version of the title in order to create the digital clip to use for
teaching. =A0TEACH spells this out specifically because Congress does
not want you to violate the DMCA in order to exercise a right they giv=
e
you in TEACH.=A0 If you can only find your title in a format that is
encrypted (there are no unencrypted version like a videotape), you are=
out
of luck.=A0 You cannot break the code on the encrypted DVD UNLESS it i=
s
decided that these works are exempt in the DMCA rulemaking.=A0 At this
time, they are exempt for faculty who teach film or media studies, not=
for
any other faculty unless there is a change made at the rulemaking to
expand the provision. </span></font></li>
</ol>

<p><font size=3D"2" face=3D"Book Antiqua"><span style=3D"font-size:11.0pt;f=
ont-family:&quot;Book Antiqua&quot;">=A0</span></font></p>

<ol style=3D"margin-top:0in" start=3D"10" type=3D"1">
<li><font size=3D"2" face=3D"Book Antiqua"><span style=3D"font-size:11.0pt=
;font-family:&quot;Book Antiqua&quot;">As
my cataloging professor use to say, =93Clear as mud?=94 =A0=A0=A0=A0=
=A0=A0</span></font></li>
</ol>

<p><font size=3D"2" face=3D"Book Antiqua"><span style=3D"font-size:11.0pt;f=
ont-family:&quot;Book Antiqua&quot;">=A0</span></font></p>

<p><font size=3D"3" face=3D"Book Antiqua"><span style=3D"font-size:12.0pt;f=
ont-family:&quot;Book Antiqua&quot;">Carrie Russell, Director</span></font>=
</p>

<p><font size=3D"3" face=3D"Book Antiqua"><span style=3D"font-size:12.0pt;f=
ont-family:&quot;Book Antiqua&quot;">Program on Public Access to Informatio=
n </span></font></p>

<p><font size=3D"3" face=3D"Book Antiqua"><span style=3D"font-size:12.0pt;f=
ont-family:&quot;Book Antiqua&quot;">American Library Association</span></f=
ont></p>

<p><font size=3D"3" face=3D"Book Antiqua"><span style=3D"font-size:12.0pt;f=
ont-family:&quot;Book Antiqua&quot;">Office for Information Technology Poli=
cy</span></font></p>

<p><font size=3D"3" face=3D"Book Antiqua"><span style=3D"font-size:12.0pt;f=
ont-family:&quot;Book Antiqua&quot;">1615
New Hampshire =A0Avenue NW</span></font><font face=3D"Book Antiqua"><span=
style=3D"font-family:&quot;Book Antiqua&quot;">, First Floor</span></font>=
</p>

<p><font size=3D"3" face=3D"Book Antiqua"><span style=3D"font-size:12.0pt;f=
ont-family:&quot;Book Antiqua&quot;">Washington</span></font><font face=3D"=
Book Antiqua"><span style=3D"font-family:&quot;Book Antiqua&quot;">, DC 200=
09</span></font></p>

<p><font size=3D"3" face=3D"Book Antiqua"><span style=3D"font-size:12.0pt;f=
ont-family:&quot;Book Antiqua&quot;">202.628.8410/800.941.8478</span></font=
></p>

<p><font size=3D"3" face=3D"Book Antiqua"><span style=3D"font-size:12.0pt;f=
ont-family:&quot;Book Antiqua&quot;">202.628.8419 (fax)</span></font></p>

<p><font size=3D"3" face=3D"Book Antiqua"><span style=3D"font-size:12.0pt;f=
ont-family:&quot;Book Antiqua&quot;"><a href=3D"mailto:crussell@alawash.org=
" target=3D"_blank">crussell@alawash.org</a></span></font></p>

<p><font size=3D"3" face=3D"Times New Roman"><span style=3D"font-size:12.0p=
t">=A0</span></font></p>

<p><font size=3D"3" face=3D"Times New Roman"><span style=3D"font-size:12.0p=
t">=A0</span></font></p>

</div>

</div>

<br>VIDEOLIB is intended to encourage the broad and lively discussion of is=
sues relating to the selection, evaluation, acquisition,bibliographic contr=
ol, preservation, and use of current and evolving video formats in librarie=
s and related institutions. It is hoped that the list will serve as an effe=
ctive working tool for video librarians, as well as a channel of communicat=
ion between libraries,educational institutions, and video producers and dis=
tributors.<br>

<br></blockquote></div><br></div>

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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.

--===============5550098551190769624==--