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

ghandman@library.berkeley.edu
Tue, 24 Mar 2009 09:30:14 -0700 (PDT)

Jessica...you're lamentably out of touch with current realities as far as
teaching and learning and educational institutions goes.

You seem to be fixated on the notion of "convenience"... The reasons why
most instructors wish to put videos online gnerally has less to do with
"convenience" than with 1) the expediencies and frustrations of teaching
in a 60-90 minute classroom 2) the changing demographics of college and
university campuses 3) the fact that close viewing and/or subsequent
viewing has become an important part of pedagogy and the learning process
4) the fact that not every university or college has a media center or a
library media collection.

I'm still not saying that whole works can be justifiably streamed without
license or permission. I am saying that there are many reasons other than
"convenience" that those of use in academic institutions are pushing hard
for the ability to serve up video content 24/7.

gary

> 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"
> 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 companies 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 "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
> is
> "password protected" ?
>
> I am alsol curious about an example of an entire film being considered
> "Fair
> 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
> example
> I would love to hear it.
>
> On Tue, Mar 24, 2009 at 11:54 AM, Carrie Russell
> <crussell@alawash.org>wrote:
>
>> 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.
>> It
>> also applies to the blended classroom – meaning you might be taking a
>> regular face-to-face class but the teacher may use digital
>> technologies to
>> deliver content to the classroom and to secure, networks for enrolled
>> students only (like Blackboard). I quoted from the legislative
>> history 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
>> 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 entire
>> film in
>> the face-to-face classroom, you cannot do that under TEACH.
>> Audiovisual
>> works are treated differently than most other works in TEACH.
>>
>>
>>
>> 1. Switching over to fair use (Section 107) -- The third factor of
>> fair
>> use asks that we consider the amount of work we want to use. If one
>> can
>> generalize, the less you use, the more likely your use is fair.
>> HOWEVER,
>> the third factor is only one factor that we are asked to consider 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 facts of the
>> situation at
>> hand.
>>
>>
>>
>> (Editorial comment: I have been asked before to give an example of when
>> it
>> 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
>> be
>> 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
>> 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.
>> Even though you bought a DVD for teaching purposes, some vendors would
>> like
>> 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
>> guidelines
>> 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
>> control
>> the unauthorized use of digital content that had not been lawfully
>> acquired
>> (paid for). It is a deviation from the rest of the copyright law in
>> that it
>> controls ACCESS. Under the copyright law’s exclusive rights, there
>> is no
>> right of access – for example, you can go to the bookstore, and look
>> at
>> books and magazines, even read an article or two, without permission
>> from
>> the rights holder -- but the DMCA adds this right of access for
>> digital
>> works. This makes sense to an extent because one should pay to have
>> digital
>> 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
>> money
>> on digital works which are obviously more vulnerable to easy copying
>> and
>> distribution so this provision is necessary.
>>
>>
>>
>> 1. The problem with digital locks comes into play when one wants to
>> use
>> 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
>> content
>> scrambling to prevent copying. But some copying is fair, such as
>> showing
>> clips of DVDs in the classroom. If you circumvent the technology in
>> order
>> to make the lawful clip, you are in violation of the DMCA
>> anti-circumvention
>> 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-circumvention
>> 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-circumvention
>> provision was preventing the public from exercising fair use. One
>> exemption
>> 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
>> acquired.
>>
>>
>>
>> 1. Currently under consideration is whether faculty can circumvent
>> CSS
>> technology on DVDs that they have purchased, in order to copy a clip
>> for use
>> in the face-to-face classroom.
>>
>>
>>
>> 1. Finally to complicate matters – 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
>> digitize 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
>> not 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.
>> You
>> cannot break the code on the encrypted DVD UNLESS it is decided that
>> these
>> works are exempt in the DMCA rulemaking. 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.
>>
>>
>>
>> 1. As my cataloging professor use to say, “Clear as mud?”
>>
>>
>>
>> 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
>> 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.
>

Gary Handman
Director
Media Resources Center
Moffitt Library
UC Berkeley

510-643-8566
ghandman@library.berkeley.edu
http://www.lib.berkeley.edu/MRC

"I have always preferred the reflection of life to life itself."
--Francois Truffaut

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.