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

Carrie Russell (crussell@alawash.org)
Tue, 24 Mar 2009 13:19:47 -0400

In response to Jessica's questions:

I have no knowledge of people streaming titles for the convenience of
students. This may occur but it is not the topic of TEACH. TEACH is
about performing and displaying protected works for non-profit
educational purposes. TEACH is about teaching - it says that protected
works should only be available to students for the class session.

The legislative history makes clear that TEACH does not apply to class
reserves, and perhaps this is where some institutions are posting films
- in e-reserves or on faculty web sites- for students to access
throughout the semester. If this does occur, the institution believes
that it is a fair use to do this. They are not relying on the TEACH
exception.

Regarding the scanning of an entire book for online use -- TEACH is an
exception for public performance and display. Congress was not thinking
of books being a displayed or performed because this is not how books
are used in the classroom. They tried to make parallels to the
face-to-face classroom. So with the book example, it would be weird for
a book to be displayed on a big screen in class and have the students
read the book in this way during the class session. The rights of
public performance and display were added to the copyright law
specifically for works that are commercially exploited by viewing or
seeing. It was a show ticket type of economy. Producers were not
selling copies of 35mm film prints to the public. That would not be
commercially viable, so they showed films in theatres where you buy a
ticket to view an event. (Of course, this has changed a great deal now
that the public regularly buys DVDs etc. But the value remains in the
performance, not in just having copies that cannot be viewed).

I understand that the streaming market is important to vendors other
than big Hollywood studios. The Hollywood people did have lobbyists who
helped craft the TEACH Act to benefit the motion picture industry and
this is their job and they are very effective. I don't know if they were
thinking about independent video types but they did not represent them
in the negotiations.

I think one might argue that screening entire films via digital networks
should be lawful because it is lawful to show the title in the face to
face classroom. What is different, of course, is the delivery method.
It is a performance either way. But Congress said no, you cannot use
the TEACH Act to do this.

Meanwhile another exception is the law --fair use -- is technologically
neutral - so fair use applies to whether you are making either a digital
or analog use. If TEACH did not exist, educators would only have fair
use to determine if a use was fair. Before 2002, TEACH did not exist
and educators were using fair use to show digital works via digital
networks. No one was sued so it seemed an indication that even rights
holders thought that this was a fair use since they did not object. Now
that TEACH does exist, there is constraint on using films in their
entirety, but only in the TEACH context - TEACH did not change fair use.
So you can see for people that it is nonsensical to say that streaming
is different than face-to-face because it wasn't before 2002, and it
continues to not be true now if one relies on fair use rather than or in
addition to TEACH.

In this context, I can see full length screening of motion pictures in a
secure, non-profit, teaching environment as fair given the title is
lawfully acquired. I work with attorneys every day. When told that
educational institutions are purchasing additional licenses to stream
titles for non-profit, teaching purposes, they could not believe it.
Why would we do that? When told that a new market has developed to sell
streaming rights, they still felt that the use was fair. They thought
that libraries, not knowing any better, "fell for an argument" that they
had to pay. University counsel was no help because they said "gee, you
better pay that additional fee because we don't want to be sued." Now
many are buying these licenses, conditioning people to believe that the
use is no longer a fair use because you can pay for the use or because
you face the risk of being sued.

I recognize that this is an economic concern for the smaller players in
the motion picture industry, and I am sorry that this is so. Just as
the copyright law does not provide an excuse for schools that are very
poor to buy one copy of a textbook and use that one copy to make copies
for every student in the school, the law does not increase the rights of
copyright for smaller companies that are struggling financially.

I expect much flaming now.
-Carrie
-----------------------------

Message: 2
Date: Tue, 24 Mar 2009 12:17:07 -0400
From: Jessica Rosner <maddux2014@gmail.com>
Subject: Re: [Videolib] whoa! what a flurry of emails on film clips
To: videolib@lists.berkeley.edu
Message-ID:
<55e0d0090903240917q33181c8exbba82b6473f49287@mail.gmail.com>
Content-Type: text/plain; charset="windows-1252"

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.
>
>
-------------- next part --------------
An HTML attachment scrubbed and removed.
HTML attachments are only available in MIME digests.

End of videolib Digest, Vol 16, Issue 52
****************************************

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.