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

Mark Kopp (mkopp@iu08.org)
Tue, 24 Mar 2009 15:08:47 -0400

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" Not sure what it is about video that makes faculty hesitate about
requiring students to put out the money. "

=20

Because neither they, nor their colleagues, made the video.

=20

Mark

=20

=20

From: videolib-bounces@lists.berkeley.edu
[mailto:videolib-bounces@lists.berkeley.edu] On Behalf Of
Tom.Ipri@unlv.edu
Sent: Tuesday, March 24, 2009 2:03 PM
To: videolib@lists.berkeley.edu
Subject: Re: [Videolib] whoa! what a flurry of emails on film clips

=20

Not to get off on a tanget, but I've often wondered why faculty don't
require students to buy movies more often or maybe that's just been in
my experience.=20

In my last position, our School of Nursing wanted the library to buy a
large number of copies of a particular title because every incoming
nursing student had to watch it. They wanted us to put all the copies on
reserve. I was concerned about the demand on my dept. The dvd cost under
$15 so I suggested that they just require all the students to buy the
dvd. At first, I got looked at like I was crazy but that's what they
eventually did. Don't know why they wouldn't think twice about making
students buy $150 textbooks but they hesitated to make them buy a $15
dvd.=20

Not sure what it is about video that makes faculty hesitate about
requiring students to put out the money.=20

Tom=20

_____________________________
Tom Ipri, MS
Head, Media and Computer Services
Lied Library
University of Nevada, Las Vegas
4505 S. Maryland Pkwy=20
Box 457035
Las Vegas, NV 89154-7035
702-895-2183
tom.ipri@unlv.edu=20

Jessica Rosner <maddux2014@gmail.com>=20
Sent by: videolib-bounces@lists.berkeley.edu=20

03/24/2009 10:34 AM=20

Please respond to
videolib@lists.berkeley.edu

To

videolib@lists.berkeley.edu=20

cc

=09
Subject

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

=20

=09

I don't want to flame anything ( and besides I really need to get to the
post office). I don't have a problem with=20
TEACH for Distance Education but when applied to "regular" classes and
those bricks and mortar schools I do.=20

It may seem cruel to keep saying "convenience " but it is. Students CAN
watch the film in class, they can watch the film in the library and I
assume depending on the set up they can take a copy out but being able
to watch a film anytime anywhere is not the same. Everyone goes nuts at
the thought that students would have to buy a copy of every film used in
a class and I don't blame them but they DO buy copies of books used in
classes so IF you want=20
to be able to see a film OUTSIDE of a class and OUTSIDE of a library
there should be a fee.=20

I still find it inordinately frustrating that no person or institution
which believes that they can ( and do) stream whole films is willing to
say so publicly. If it is your belief that it is legal then let's get a
ruling on it.=20

Now to the post office=20

PS I will going to Cubs Spring Training tomorrow with limited internet
access so have a fun week without me.=20

On Tue, Mar 24, 2009 at 1:19 PM, Carrie Russell <crussell@alawash.org>
wrote:=20

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=20
To: videolib@lists.berkeley.edu=20
Message-ID:
<55e0d0090903240917q33181c8exbba82b6473f49287@mail.gmail.com>
Content-Type: text/plain; charset=3D"windows-1252"=20

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.
>
>
>=20
> 1. TEACH limits the public performance of audiovisual works=20
(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.
>
>
>=20
> 1. Switching over to fair use (Section 107) -- The third factor of=20
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).
>
>
>=20
> 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.
>
>
>=20
> 1. On to anti-circumvention -- The DMCA put in effect a new legal=20
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.
>
>
>=20
> 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.
>
>
>=20
> 1. Congress thought this might be a problem, so they added=20
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.
>
>
>=20
> 1. Currently under consideration is whether faculty can circumvent=20
CSS
> technology on DVDs that they have purchased, in order to copy a
clip for use
> in the face-to-face classroom.
>
>
>=20
> 1. Finally to complicate matters ? back to TEACH (which was passed=20
> 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.
>
>
>=20
> 1. As my cataloging professor use to say, ?Clear as mud??=20
>
>
>
> 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
>
>
>
>
>=20
> 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.
>
>=20
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End of videolib Digest, Vol 16, Issue 52
****************************************=20

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.=20
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.

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<div class=3DSection1>

<p class=3DMsoNormal><span style=3D'font-family:"Comic Sans =
MS";color:maroon'>&#8220;&nbsp;
</span><span =
style=3D'font-size:10.0pt;font-family:"Arial","sans-serif"'>Not sure
what it is about video that makes faculty hesitate about requiring =
students to
put out the money.</span> <span style=3D'font-family:"Comic Sans =
MS";color:maroon'>&nbsp;&nbsp;&#8220;<o:p></o:p></span></p>

<p class=3DMsoNormal><span style=3D'font-family:"Comic Sans =
MS";color:maroon'><o:p>&nbsp;</o:p></span></p>

<p class=3DMsoNormal><span style=3D'font-family:"Comic Sans =
MS";color:maroon'>Because
neither they, nor their colleagues, made the =
video.<o:p></o:p></span></p>

<p class=3DMsoNormal><span style=3D'font-family:"Comic Sans =
MS";color:maroon'><o:p>&nbsp;</o:p></span></p>

<p class=3DMsoNormal><span style=3D'font-family:"Comic Sans =
MS";color:maroon'>Mark<o:p></o:p></span></p>

<p class=3DMsoNormal><span style=3D'font-family:"Comic Sans =
MS";color:maroon'><o:p>&nbsp;</o:p></span></p>

<p class=3DMsoNormal><span style=3D'font-family:"Comic Sans =
MS";color:maroon'><o:p>&nbsp;</o:p></span></p>

<div style=3D'border:none;border-top:solid #B5C4DF 1.0pt;padding:3.0pt =
0in 0in 0in'>

<p class=3DMsoNormal><b><span =
style=3D'font-size:10.0pt;font-family:"Tahoma","sans-serif"'>From:</span>=
</b><span
style=3D'font-size:10.0pt;font-family:"Tahoma","sans-serif"'> =
videolib-bounces@lists.berkeley.edu
[mailto:videolib-bounces@lists.berkeley.edu] <b>On Behalf Of =
</b>Tom.Ipri@unlv.edu<br>
<b>Sent:</b> Tuesday, March 24, 2009 2:03 PM<br>
<b>To:</b> videolib@lists.berkeley.edu<br>
<b>Subject:</b> Re: [Videolib] whoa! what a flurry of emails on film =
clips<o:p></o:p></span></p>

</div>

<p class=3DMsoNormal><o:p>&nbsp;</o:p></p>

<p class=3DMsoNormal style=3D'margin-bottom:12.0pt'><br>
<span style=3D'font-size:10.0pt;font-family:"Arial","sans-serif"'>Not to =
get off
on a tanget, but I've often wondered why faculty don't require students =
to buy
movies more often or maybe that's just been in my experience.</span> =
<br>
<br>
<span style=3D'font-size:10.0pt;font-family:"Arial","sans-serif"'>In my =
last
position, our School of Nursing wanted the library to buy a large number =
of
copies of a particular title because every incoming nursing student had =
to
watch it. They wanted us to put all the copies on reserve. I was =
concerned
about the demand on my dept. The dvd cost under $15 so I suggested that =
they
just require all the students to buy the dvd. At first, I got looked at =
like I
was crazy but that's what they eventually did. Don't know why they =
wouldn't
think twice about making students buy $150 textbooks but they hesitated =
to make
them buy a $15 dvd.</span> <br>
<br>
<span style=3D'font-size:10.0pt;font-family:"Arial","sans-serif"'>Not =
sure what
it is about video that makes faculty hesitate about requiring students =
to put
out the money.</span> <br>
<br>
<span =
style=3D'font-size:10.0pt;font-family:"Arial","sans-serif"'>Tom</span> =
<br>
<br>
<span =
style=3D'font-size:10.0pt;font-family:"Arial","sans-serif"'>_____________=
________________<br>
Tom Ipri, MS<br>
Head, Media and Computer Services<br>
Lied Library<br>
University of Nevada, Las Vegas<br>
4505 S. Maryland Pkwy <br>
Box 457035<br>
Las Vegas, NV 89154-7035<br>
702-895-2183<br>
tom.ipri@unlv.edu</span> <br>
<br>
<o:p></o:p></p>

<table class=3DMsoNormalTable border=3D0 cellpadding=3D0 width=3D"100%"
style=3D'width:100.0%'>
<tr>
<td width=3D"40%" valign=3Dtop style=3D'width:40.0%;padding:.75pt =
.75pt .75pt .75pt'>
<p class=3DMsoNormal><b><span =
style=3D'font-size:7.5pt;font-family:"Arial","sans-serif"'>Jessica
Rosner &lt;maddux2014@gmail.com&gt;</span></b><span =
style=3D'font-size:7.5pt;
font-family:"Arial","sans-serif"'> </span><br>
<span style=3D'font-size:7.5pt;font-family:"Arial","sans-serif"'>Sent =
by:
videolib-bounces@lists.berkeley.edu</span> <o:p></o:p></p>
<p><span =
style=3D'font-size:7.5pt;font-family:"Arial","sans-serif"'>03/24/2009
10:34 AM</span> <o:p></o:p></p>
<table class=3DMsoNormalTable border=3D1 cellpadding=3D0>
<tr>
<td valign=3Dtop style=3D'background:white;padding:.75pt .75pt .75pt =
.75pt'>
<p class=3DMsoNormal align=3Dcenter =
style=3D'text-align:center'><span
style=3D'font-size:7.5pt;font-family:"Arial","sans-serif"'>Please =
respond to<br>
videolib@lists.berkeley.edu</span><o:p></o:p></p>
</td>
</tr>
</table>
</td>
<td width=3D"59%" valign=3Dtop style=3D'width:59.0%;padding:.75pt =
.75pt .75pt .75pt'>
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style=3D'width:100.0%'>
<tr>
<td valign=3Dtop style=3D'padding:.75pt .75pt .75pt .75pt'>
<p class=3DMsoNormal align=3Dright style=3D'text-align:right'><span
=
style=3D'font-size:7.5pt;font-family:"Arial","sans-serif"'>To</span><o:p>=
</o:p></p>
</td>
<td valign=3Dtop style=3D'padding:.75pt .75pt .75pt .75pt'>
<p class=3DMsoNormal><span =
style=3D'font-size:7.5pt;font-family:"Arial","sans-serif"'>videolib@lists=
.berkeley.edu</span>
<o:p></o:p></p>
</td>
</tr>
<tr>
<td valign=3Dtop style=3D'padding:.75pt .75pt .75pt .75pt'>
<p class=3DMsoNormal align=3Dright style=3D'text-align:right'><span
=
style=3D'font-size:7.5pt;font-family:"Arial","sans-serif"'>cc</span><o:p>=
</o:p></p>
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<p class=3DMsoNormal><span =
style=3D'font-size:7.5pt;font-family:"Arial","sans-serif"'>Re:
[Videolib] whoa! what a flurry of emails on film =
clips</span><o:p></o:p></p>
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<p class=3DMsoNormal style=3D'margin-bottom:12.0pt'><br>
<br>
<br>
I don't want to flame anything ( and besides I really need to get to the =
post
office). I don't have a problem with <br>
TEACH for Distance Education but when applied to &quot;regular&quot; =
classes
and those bricks and mortar schools I do. <br>
<br>
It may seem cruel to keep saying &quot;convenience &quot; but it is. =
Students
CAN watch the film in class, they can watch the film in the library and =
I
assume depending on the set up they can take a copy &nbsp;out but being =
able to
watch a film anytime anywhere is &nbsp;not the same. Everyone goes nuts =
at the
thought that students would have to buy a copy of every film used in a =
class
and I don't blame them but they DO buy copies of books used in classes =
so IF
you want <br>
to be able to see a film OUTSIDE of a class and OUTSIDE of a library =
there
should be a fee. <br>
<br>
I still find it inordinately frustrating that no person or institution =
which
believes that they can ( and do) stream whole films is willing to say so
publicly. If it is your belief that it is legal then let's get a ruling =
on it. <br>
<br>
Now to the post office <br>
<br>
PS I will going to Cubs Spring Training tomorrow with limited internet =
access
so have a fun week &nbsp;without me. <br>
<br>
<br>
<br>
<br>
On Tue, Mar 24, 2009 at 1:19 PM, Carrie Russell &lt;<a
href=3D"mailto:crussell@alawash.org">crussell@alawash.org</a>&gt; wrote: =
<br>
<br>
In response to Jessica's questions:<br>
<br>
I have no knowledge of people streaming titles for the convenience =
of<br>
students. &nbsp;This may occur but it is not the topic of TEACH. =
&nbsp;TEACH is<br>
about performing and displaying protected works for non-profit<br>
educational purposes. &nbsp;TEACH is about teaching - it says that =
protected<br>
works should only be available to students for the class session.<br>
<br>
The legislative history makes clear that TEACH does not apply to =
class<br>
reserves, and perhaps this is where some institutions are posting =
films<br>
- in e-reserves or on faculty web sites- for students to access<br>
throughout the semester. &nbsp;If this does occur, the institution =
believes<br>
that it is a fair use to do this. They are not relying on the TEACH<br>
exception.<br>
<br>
Regarding the scanning of an entire book for online use -- TEACH is =
an<br>
exception for public performance and display. &nbsp;Congress was not =
thinking<br>
of books being a displayed or performed because this is not how =
books<br>
are used in the classroom. &nbsp;They tried to make parallels to the<br>
face-to-face classroom. &nbsp;So with the book example, it would be =
weird for<br>
a book to be displayed on a big screen in class and have the =
students<br>
read the book in this way during the class session. &nbsp;The rights =
of<br>
public performance and display were added to the copyright law<br>
specifically for works that are commercially exploited by viewing or<br>
seeing. It was a show ticket type of economy. &nbsp;Producers were =
not<br>
selling copies of 35mm film prints to the public. &nbsp;That would not =
be<br>
commercially viable, so they showed films in theatres where you buy =
a<br>
ticket to view an event. (Of course, this has changed a great deal =
now<br>
that the public regularly buys DVDs etc. &nbsp;But the value remains in =
the<br>
performance, not in just having copies that cannot be viewed).<br>
<br>
I understand that the streaming market is important to vendors other<br>
than big Hollywood studios. &nbsp;The Hollywood people did have =
lobbyists who<br>
helped craft the TEACH Act to benefit the motion picture industry =
and<br>
this is their job and they are very effective. I don't know if they =
were<br>
thinking about independent video types but &nbsp;they did not represent =
them<br>
in the negotiations.<br>
<br>
I think one might argue that screening entire films via digital =
networks<br>
should be lawful because it is lawful to show the title in the face =
to<br>
face classroom. &nbsp;What is different, of course, is the delivery =
method.<br>
It is a performance either way. &nbsp;But Congress said no, you cannot =
use<br>
the TEACH Act to do this.<br>
<br>
Meanwhile another exception is the law --fair use -- is =
technologically<br>
neutral - so fair use applies to whether you are making either a =
digital<br>
or analog use. &nbsp;If TEACH did not exist, educators would only have =
fair<br>
use to determine if a use was fair. &nbsp;Before 2002, TEACH did not =
exist<br>
and educators were using fair use to show digital works via digital<br>
networks. No one was sued so it seemed an indication that even =
rights<br>
holders thought that this was a fair use since they did not object. =
&nbsp;Now<br>
that TEACH does exist, there is constraint on using films in their<br>
entirety, but only in the TEACH context - TEACH did not change fair =
use.<br>
So you can see for people that it is nonsensical to say that =
streaming<br>
is different than face-to-face because it wasn't before 2002, and it<br>
continues to not be true now if one relies on fair use rather than or =
in<br>
addition to TEACH.<br>
<br>
In this context, I can see full length screening of motion pictures in =
a<br>
secure, non-profit, teaching environment as fair given the title is<br>
lawfully acquired. &nbsp;I work with attorneys every day. &nbsp;When =
told that<br>
educational institutions are purchasing additional licenses to =
stream<br>
titles for non-profit, teaching purposes, they could not believe it.<br>
Why would we do that? When told that a new market has developed to =
sell<br>
streaming rights, they still felt that the use was fair. &nbsp; =
&nbsp;They
thought<br>
that libraries, not knowing any better, &quot;fell for an argument&quot; =
that
they<br>
had to pay. &nbsp;University counsel was no help because they said =
&quot;gee,
you<br>
better pay that additional fee because we don't want to be sued.&quot; =
Now<br>
many are buying these licenses, conditioning people to believe that =
the<br>
use is no longer a fair use because you can pay for the use or =
because<br>
you face the risk of being sued.<br>
<br>
I recognize that this is an economic concern for the smaller players =
in<br>
the motion picture industry, and I am sorry that this is so. &nbsp;Just =
as<br>
the copyright law does not provide an excuse for schools that are =
very<br>
poor to buy one copy of a textbook and use that one copy to make =
copies<br>
for every student in the school, the law does not increase the rights =
of<br>
copyright for smaller companies that are struggling financially.<br>
<br>
I expect much flaming now.<br>
-Carrie<br>
-----------------------------<br>
<br>
Message: 2<br>
Date: Tue, 24 Mar 2009 12:17:07 -0400<br>
From: Jessica Rosner &lt;<a =
href=3D"mailto:maddux2014@gmail.com">maddux2014@gmail.com</a>&gt;<br>
Subject: Re: [Videolib] whoa! what a flurry of emails on film clips <br>
To: <a =
href=3D"mailto:videolib@lists.berkeley.edu">videolib@lists.berkeley.edu</=
a>
<br>
Message-ID:<br>
&nbsp; &nbsp; &nbsp; &nbsp;&lt;<a
href=3D"mailto:55e0d0090903240917q33181c8exbba82b6473f49287@mail.gmail.co=
m">55e0d0090903240917q33181c8exbba82b6473f49287@mail.gmail.com</a>&gt;<br=
>
Content-Type: text/plain; charset=3D&quot;windows-1252&quot; <br>
<br>
CarrieOne quick response. Streaming is NOT the same as face to face =
and<br>
it<br>
is not just greedy studio people who would like to be paid for this =
use.<br>
If<br>
you were talking about streaming TO a classroom that would be one =
thing<br>
but<br>
this is done so students can see &nbsp;films in essence at their =
convenience.<br>
While this might make things nice and easy it is not really their<br>
&quot;right&quot; to<br>
watch the film anytime , anywhere so long as it is part of course.<br>
Regular<br>
bricks and mortar classes have plenty of opportunity to see a work<br>
either in<br>
class or at the library.It is fact the smaller companies that are =
hit<br>
hardest when the concept of streaming a whole work without paying =
any<br>
fee is<br>
proposed. I grant you that some of the current &quot;models&quot; are =
out of
whack<br>
price wise but hopefully that can work out. I am curious is it your<br>
belief<br>
that<br>
an entire book can be scanned and posted on &nbsp;line for a class =
provided<br>
it is<br>
&quot;password protected&quot; ?<br>
<br>
I am alsol curious about an example of an entire film being =
considered<br>
&quot;Fair<br>
Use&quot; . The only example I recall involved what would be called =
exigent<br>
circumstances but at most meant that the institution would have to =
pay<br>
for<br>
it after the fact not that it was actually covered so if you have an<br>
example<br>
I would love to hear it.<br>
<br>
On Tue, Mar 24, 2009 at 11:54 AM, Carrie Russell<br>
&lt;<a =
href=3D"mailto:crussell@alawash.org">crussell@alawash.org</a>&gt;wrote:<b=
r>
<br>
&gt; &nbsp;I am writing again to try and clarify what I said and have =
said in<br>
the<br>
&gt; past about the TEACH Act, about fair use and about =
anti-circumvention.<br>
&gt;<br>
&gt;<br>
&gt;<br>
&gt; &nbsp; &nbsp;1. TEACH Act applies to both synchronous and =
asynchronous
teaching.<br>
It<br>
&gt; &nbsp; &nbsp;also applies to the blended classroom ? meaning you =
might be
taking<br>
a<br>
&gt; &nbsp; &nbsp;regular face-to-face class but the teacher may use =
digital<br>
technologies to<br>
&gt; &nbsp; &nbsp;deliver content to the classroom and to secure, =
networks for<br>
enrolled<br>
&gt; &nbsp; &nbsp;students only (like Blackboard). &nbsp;I quoted from =
the
legislative<br>
history to<br>
&gt; &nbsp; &nbsp;explain this in an earlier post.<br>
&gt;<br>
&gt;<br>
&gt; <br>
&gt; &nbsp; &nbsp;1. TEACH limits the public performance of audiovisual =
works <br>
(including<br>
&gt; &nbsp; &nbsp;DVDs) to portions necessary to meet the teaching goal.
&nbsp;Throughout<br>
Section<br>
&gt; &nbsp; &nbsp;110(2), we are reminded that one can use the portions =
that
they<br>
would<br>
&gt; &nbsp; &nbsp;typically use in the analog/video/16mm classroom, but =
for
audio<br>
visual works<br>
&gt; &nbsp; &nbsp;the law is saying even though you would ordinarily =
screen an
entire<br>
film in<br>
&gt; &nbsp; &nbsp;the face-to-face classroom, you cannot do that under =
TEACH.<br>
Audiovisual<br>
&gt; &nbsp; &nbsp;works are treated differently than most other works in =
TEACH.<br>
&gt;<br>
&gt;<br>
&gt; <br>
&gt; &nbsp; &nbsp;1. Switching over to fair use (Section 107) -- The =
third
factor of <br>
fair<br>
&gt; &nbsp; &nbsp;use asks that we consider the amount of work we want =
to use.
&nbsp;If<br>
one can<br>
&gt; &nbsp; &nbsp;generalize, the less you use, the more likely your use =
is
fair.<br>
HOWEVER,<br>
&gt; &nbsp; &nbsp;the third factor is only one factor that we are asked =
to
consider<br>
in making<br>
&gt; &nbsp; &nbsp;a fair use assessment. So, it is POSSIBLE that =
screening an
entire<br>
film via<br>
&gt; &nbsp; &nbsp;a digital network might be fair given the specific =
facts of
the<br>
situation at<br>
&gt; &nbsp; &nbsp;hand.<br>
&gt;<br>
&gt;<br>
&gt;<br>
&gt; (Editorial comment: I have been asked before to give an example =
of<br>
when it<br>
&gt; might be fair to show an entire film via a digital network. =
&nbsp;Some<br>
people on<br>
&gt; the list cannot imagine a situation when it would ever be fair to =
show<br>
an<br>
&gt; entire film. &nbsp;Other people think it could be possible and they =
may<br>
even be<br>
&gt; doing it. &nbsp;Other people think this part of TEACH is absurd =
since the<br>
same<br>
&gt; use is occurring for teaching purposes whether on Blackboard or in =
the<br>
&gt; classroom so what is the difference. &nbsp;The difference is that =
lobbyists<br>
for<br>
&gt; the motion picture industry fought hard to get this special =
treatment<br>
in<br>
&gt; order to establish a new revenue stream for licensing films for<br>
streaming.<br>
&gt; Even though you bought a DVD for teaching purposes, some vendors =
would<br>
like<br>
&gt; you to pay again in order to stream it).<br>
&gt;<br>
&gt;<br>
&gt; <br>
&gt; &nbsp; &nbsp;1. Fair use guidelines (10% of this, 10 lines of that =
etc)
are MADE <br>
UP<br>
&gt; &nbsp; &nbsp;rules. &nbsp;They are not in the law ANYWHERE. =
&nbsp;You may
choose to use<br>
guidelines<br>
&gt; &nbsp; &nbsp;as your local policy but they do not have the force =
and
effect of<br>
law.<br>
&gt;<br>
&gt;<br>
&gt; <br>
&gt; &nbsp; &nbsp;1. On to anti-circumvention -- The DMCA put in effect =
a new
legal <br>
way<br>
&gt; &nbsp; &nbsp;for rights holders to protect the use of their works
primarily to<br>
control<br>
&gt; &nbsp; &nbsp;the unauthorized use of digital content that had not =
been
lawfully<br>
acquired<br>
&gt; &nbsp; &nbsp;(paid for). &nbsp;It is a deviation from the rest of =
the
copyright law<br>
in that it<br>
&gt; &nbsp; &nbsp;controls ACCESS. &nbsp;Under the copyright law?s =
exclusive
rights, there<br>
is no<br>
&gt; &nbsp; &nbsp;right of access ? for example, you can go to the =
bookstore,
and<br>
look at<br>
&gt; &nbsp; &nbsp;books and magazines, even read an article or two, =
without<br>
permission from<br>
&gt; &nbsp; &nbsp;the rights holder -- &nbsp;but the DMCA adds this =
right of
access for<br>
digital<br>
&gt; &nbsp; &nbsp;works. &nbsp;This makes sense to an extent because one =
should
pay to<br>
have digital<br>
&gt; &nbsp; &nbsp;access (like with your cable bill). &nbsp;It would be =
wrong
to snag a<br>
cable box<br>
&gt; &nbsp; &nbsp;and get free cable. The thought was that rights =
holders need
to<br>
make money<br>
&gt; &nbsp; &nbsp;on digital works which are obviously more vulnerable =
to easy<br>
copying and<br>
&gt; &nbsp; &nbsp;distribution so this provision is necessary.<br>
&gt;<br>
&gt;<br>
&gt; <br>
&gt; &nbsp; &nbsp;1. The problem with digital locks comes into play when =
one
wants to <br>
use<br>
&gt; &nbsp; &nbsp;a work in a lawful way but the technology prevents =
them from
doing<br>
so. &nbsp;For<br>
&gt; &nbsp; &nbsp;example, the library buys lots of DVDs. &nbsp;Many are
encrypted with<br>
content<br>
&gt; &nbsp; &nbsp;scrambling to prevent copying. &nbsp;But some copying =
is
fair, such as<br>
showing<br>
&gt; &nbsp; &nbsp;clips of DVDs in the classroom. &nbsp;If you =
circumvent the
technology<br>
in order<br>
&gt; &nbsp; &nbsp;to make the lawful clip, you are in violation of the =
DMCA<br>
anti-circumvention<br>
&gt; &nbsp; &nbsp;provision (described above). &nbsp;You may be =
exercising fair
use, but<br>
you broke<br>
&gt; &nbsp; &nbsp;a code to do it and breaking the code is against =
the<br>
anti-circumvention<br>
&gt; &nbsp; &nbsp;provision.<br>
&gt;<br>
&gt;<br>
&gt; <br>
&gt; &nbsp; &nbsp;1. Congress thought this might be a problem, so they =
added <br>
rulemaking<br>
&gt; &nbsp; &nbsp;proceedings to occur every three years to find out if =
the<br>
anti-circumvention<br>
&gt; &nbsp; &nbsp;provision was preventing the public from exercising =
fair use.
&nbsp;One<br>
exemption<br>
&gt; &nbsp; &nbsp;to the anti-circumvention provision that has been =
approved
for<br>
several years<br>
&gt; &nbsp; &nbsp;is that one can circumvent an e-book to enable the =
read aloud<br>
function so<br>
&gt; &nbsp; &nbsp;the reading impaired can listen to an e-book they have
lawfully<br>
acquired.<br>
&gt;<br>
&gt;<br>
&gt; <br>
&gt; &nbsp; &nbsp;1. Currently under consideration is whether faculty =
can
circumvent <br>
CSS<br>
&gt; &nbsp; &nbsp;technology on DVDs that they have purchased, in order =
to copy
a<br>
clip for use<br>
&gt; &nbsp; &nbsp;in the face-to-face classroom.<br>
&gt;<br>
&gt;<br>
&gt; <br>
&gt; &nbsp; &nbsp;1. Finally to complicate matters ? back to TEACH =
(which was
passed <br>
&gt; &nbsp; &nbsp;after the DMCA). &nbsp;If you wanted to use a clip =
from a DVD
but could<br>
not do so<br>
&gt; &nbsp; &nbsp;because of anti-circumvention, TEACH says you can go =
ahead
and<br>
digitize an<br>
&gt; &nbsp; &nbsp;analog version of the title in order to create the =
digital
clip to<br>
use for<br>
&gt; &nbsp; &nbsp;teaching. &nbsp;TEACH spells this out specifically =
because
Congress does<br>
not want<br>
&gt; &nbsp; &nbsp;you to violate the DMCA in order to exercise a right =
they
give you<br>
in<br>
&gt; &nbsp; &nbsp;TEACH. &nbsp;If you can only find your title in a =
format that
is<br>
encrypted (there<br>
&gt; &nbsp; &nbsp;are no unencrypted version like a videotape), you are =
out of
luck.<br>
You<br>
&gt; &nbsp; &nbsp;cannot break the code on the encrypted DVD UNLESS it =
is
decided<br>
that these<br>
&gt; &nbsp; &nbsp;works are exempt in the DMCA rulemaking. &nbsp;At this =
time,
they are<br>
exempt for<br>
&gt; &nbsp; &nbsp;faculty who teach film or media studies, not for any =
other
faculty<br>
unless<br>
&gt; &nbsp; &nbsp;there is a change made at the rulemaking to expand the
provision.<br>
&gt;<br>
&gt;<br>
&gt; <br>
&gt; &nbsp; &nbsp;1. As my cataloging professor use to say, ?Clear as =
mud?? <br>
&gt;<br>
&gt;<br>
&gt;<br>
&gt; Carrie Russell, Director<br>
&gt;<br>
&gt; Program on Public Access to Information<br>
&gt;<br>
&gt; American Library Association<br>
&gt;<br>
&gt; Office for Information Technology Policy<br>
&gt;<br>
&gt; 1615 New Hampshire &nbsp;Avenue NW, First Floor<br>
&gt;<br>
&gt; Washington, DC 20009<br>
&gt;<br>
&gt; 202.628.8410/800.941.8478<br>
&gt;<br>
&gt; 202.628.8419 (fax)<br>
&gt;<br>
&gt; <a =
href=3D"mailto:crussell@alawash.org">crussell@alawash.org</a><br>
&gt;<br>
&gt;<br>
&gt;<br>
&gt;<br>
&gt; <br>
&gt; VIDEOLIB is intended to encourage the broad and lively discussion =
of<br>
issues<br>
&gt; relating to the selection, evaluation, =
acquisition,bibliographic<br>
control,<br>
&gt; preservation, and use of current and evolving video formats in<br>
libraries and<br>
&gt; related institutions. It is hoped that the list will serve as =
an<br>
effective<br>
&gt; working tool for video librarians, as well as a channel of<br>
communication<br>
&gt; between libraries,educational institutions, and video producers =
and<br>
&gt; distributors.<br>
&gt;<br>
&gt; <br>
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End of videolib Digest, Vol 16, Issue 52<br>
**************************************** <br>
<br>
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. <br>
<tt><span style=3D'font-size:10.0pt'>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.</span></tt><o:p></o:p></p>

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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.

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