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

Jessica Rosner (maddux2014@gmail.com)
Tue, 24 Mar 2009 16:02:08 -0400

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Look something we can all agree on.

On Tue, Mar 24, 2009 at 3:44 PM, Jeanne Little <jeanne.little@uni.edu>wrote=
:

> Amen.
>
> Mark Kopp wrote:
>
> =93 Not sure what it is about video that makes faculty hesitate about
> requiring students to put out the money. =93
>
>
>
> Because neither they, nor their colleagues, made the video.
>
>
>
> Mark
>
>
>
>
>
> *From:* videolib-bounces@lists.berkeley.edu [
> mailto:videolib-bounces@lists.berkeley.edu<videolib-bounces@lists.berkele=
y.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
>
>
>
>
> 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.
>
> 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 nursi=
ng
> 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 firs=
t,
> 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 textboo=
ks
> but they hesitated to make them buy a $15 dvd.
>
> Not sure what it is about video that makes faculty hesitate about requiri=
ng
> students to put out the money.
>
> Tom
>
> _____________________________
> Tom Ipri, MS
> Head, Media and Computer Services
> Lied Library
> University of Nevada, Las Vegas
> 4505 S. Maryland Pkwy
> Box 457035
> Las Vegas, NV 89154-7035
> 702-895-2183
> tom.ipri@unlv.edu
>
> *Jessica Rosner <maddux2014@gmail.com> <maddux2014@gmail.com>*
> Sent by: videolib-bounces@lists.berkeley.edu
>
> 03/24/2009 10:34 AM
>
> Please respond to
> videolib@lists.berkeley.edu
>
> To
>
> videolib@lists.berkeley.edu
>
> cc
>
> Subject
>
> Re: [Videolib] whoa! what a flurry of emails on film clips
>
>
>
>
>
>
>
> 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
> TEACH for Distance Education but when applied to "regular" classes and
> those bricks and mortar schools I do.
>
> 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 ass=
ume
> 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 yo=
u
> want
> to be able to see a film OUTSIDE of a class and OUTSIDE of a library ther=
e
> should be a fee.
>
> I still find it inordinately frustrating that no person or institution
> which believes that they can ( and do) stream whole films is willing to s=
ay
> so publicly. If it is your belief that it is legal then let's get a rulin=
g
> on it.
>
> Now to the post office
>
> PS I will going to Cubs Spring Training tomorrow with limited internet
> access so have a fun week without me.
>
>
>
>
> On Tue, Mar 24, 2009 at 1:19 PM, Carrie Russell <crussell@alawash.org>
> wrote:
>
> 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=3D"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 --------------
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> End of videolib Digest, Vol 16, Issue 52
> ****************************************
>
> 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.
> 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.
>
> ------------------------------
> 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 effect=
ive working tool for video librarians, as well as a channel of communicatio=
n between libraries,educational institutions, and video producers and distr=
ibutors.
>
>
>
> 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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Look something we can all agree on.<br><br><div class=3D"gmail_quote">On Tu=
e, Mar 24, 2009 at 3:44 PM, Jeanne Little <span dir=3D"ltr">&lt;<a href=3D"=
mailto:jeanne.little@uni.edu">jeanne.little@uni.edu</a>&gt;</span> wrote:<b=
r><blockquote class=3D"gmail_quote" style=3D"margin:0 0 0 .8ex;border-left:=
1px #ccc solid;padding-left:1ex;">

=20
=20

<div bgcolor=3D"#ffffff" text=3D"#000000">
Amen.<br>
<br>
Mark Kopp wrote:
<blockquote cite=3D"http://mid755EEC6644EDE248A3A31F376E6DDCBF019C7B3D@EXCH=
ANGE.appalachia.iu8" type=3D"cite"><div><div></div><div class=3D"h5">
=20
=20
=20

<div>
<p><span style=3D"font-family:&quot;Comic Sans MS&quot;;color:maroon">=93=
=A0
</span><span style=3D"font-size:10pt">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:&quot;Comic Sans MS&qu=
ot;;color:maroon">=A0=A0=93</span></p>
<p><span style=3D"font-family:&quot;Comic Sans MS&quot;;color:maroon">=A0=
</span></p>
<p><span style=3D"font-family:&quot;Comic Sans MS&quot;;color:maroon">Bec=
ause
neither they, nor their colleagues, made the video.</span></p>
<p><span style=3D"font-family:&quot;Comic Sans MS&quot;;color:maroon">=A0=
</span></p>
<p><span style=3D"font-family:&quot;Comic Sans MS&quot;;color:maroon">Mar=
k</span></p>
<p><span style=3D"font-family:&quot;Comic Sans MS&quot;;color:maroon">=A0=
</span></p>
<p><span style=3D"font-family:&quot;Comic Sans MS&quot;;color:maroon">=A0=
</span></p>
<div style=3D"border-style:solid none none;border-color:rgb(181, 196, 223=
) -moz-use-text-color -moz-use-text-color;border-width:1pt medium medium;pa=
dding:3pt 0in 0in">
<p><b><span style=3D"font-size:10pt">From:</span></b><span style=3D"font-=
size:10pt">
<a href=3D"mailto:videolib-bounces@lists.berkeley.edu" target=3D"_blank">vi=
deolib-bounces@lists.berkeley.edu</a>
[<a href=3D"mailto:videolib-bounces@lists.berkeley.edu" target=3D"_blank">m=
ailto:videolib-bounces@lists.berkeley.edu</a>] <b>On Behalf Of </b><a href=
=3D"mailto:Tom.Ipri@unlv.edu" target=3D"_blank">Tom.Ipri@unlv.edu</a><br>
<b>Sent:</b> Tuesday, March 24, 2009 2:03 PM<br>
<b>To:</b> <a href=3D"mailto:videolib@lists.berkeley.edu" target=3D"_blan=
k">videolib@lists.berkeley.edu</a><br>
<b>Subject:</b> Re: [Videolib] whoa! what a flurry of emails on film
clips</span></p>
</div>
<p>=A0</p>
<p style=3D"margin-bottom:12pt"><br>
<span style=3D"font-size:10pt">Not
to get off
on a tanget, but I&#39;ve often wondered why faculty don&#39;t require stud=
ents
to buy
movies more often or maybe that&#39;s just been in my experience.</span> <b=
r>
<br>
<span style=3D"font-size:10pt">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&#39;s what they eventually did. Don&#39;t know why they
wouldn&#39;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:10pt">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:10pt">Tom</span>
<br>
<br>
<span style=3D"font-size:10pt">_____________________________<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>
<a href=3D"mailto:tom.ipri@unlv.edu" target=3D"_blank">tom.ipri@unlv.edu</a=
></span> <br>
<br>
</p>
<table style=3D"width:100%" border=3D"0" cellpadding=3D"0" width=3D"100%"=
>
<tbody>
<tr>
<td style=3D"padding:0.75pt;width:40%" valign=3D"top" width=3D"40%"=
>
<p><b><span style=3D"font-size:7.5pt">Jessica
Rosner <a href=3D"mailto:maddux2014@gmail.com" target=3D"_blank">&lt;maddux=
2014@gmail.com&gt;</a></span></b><span style=3D"font-size:7.5pt"> </span><b=
r>
<span style=3D"font-size:7.5pt">Sent by:
<a href=3D"mailto:videolib-bounces@lists.berkeley.edu" target=3D"_blank">vi=
deolib-bounces@lists.berkeley.edu</a></span> </p>
<p><span style=3D"font-size:7.5pt">03/24/2009
10:34 AM</span> </p>
<table border=3D"1" cellpadding=3D"0">
<tbody>
<tr>
<td style=3D"padding:0.75pt;background:white none repeat scro=
ll 0%" valign=3D"top">
<p style=3D"text-align:center" align=3D"center"><span style=
=3D"font-size:7.5pt">Please
respond to<br>
<a href=3D"mailto:videolib@lists.berkeley.edu" target=3D"_blank">videolib@l=
ists.berkeley.edu</a></span></p>
</td>
</tr>
</tbody>
</table>
</td>
<td style=3D"padding:0.75pt;width:59%" valign=3D"top" width=3D"59%"=
>
<table style=3D"width:100%" border=3D"0" cellpadding=3D"0" width=3D=
"100%">
<tbody>
<tr>
<td style=3D"padding:0.75pt" valign=3D"top">
<p style=3D"text-align:right" align=3D"right"><span style=3D"=
font-size:7.5pt">To</span></p>
</td>
<td style=3D"padding:0.75pt" valign=3D"top">
<p><span style=3D"font-size:7.5pt"><a href=3D"mailto:videolib=
@lists.berkeley.edu" target=3D"_blank">videolib@lists.berkeley.edu</a></spa=
n>
</p>
</td>
</tr>
<tr>
<td style=3D"padding:0.75pt" valign=3D"top">
<p style=3D"text-align:right" align=3D"right"><span style=3D"=
font-size:7.5pt">cc</span></p>
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</td>
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<td style=3D"padding:0.75pt" valign=3D"top">
<p style=3D"text-align:right" align=3D"right"><span style=3D"=
font-size:7.5pt">Subject</span></p>
</td>
<td style=3D"padding:0.75pt" valign=3D"top">
<p><span style=3D"font-size:7.5pt">Re:
[Videolib] whoa! what a flurry of emails on film clips</span></p>
</td>
</tr>
</tbody>
</table>
<p>=A0</p>
<table border=3D"0" cellpadding=3D"0">
<tbody>
<tr>
<td style=3D"padding:0.75pt" valign=3D"top"><br>
</td>
<td style=3D"padding:0.75pt" valign=3D"top"><br>
</td>
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</td>
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</tbody>
</table>
<p style=3D"margin-bottom:12pt"><br>
<br>
<br>
I don&#39;t want to flame anything ( and besides I really need to get to
the post
office). I don&#39;t have a problem with <br>
TEACH for Distance Education but when applied to &quot;regular&quot; classe=
s
and those bricks and mortar schools I do. <br>
<br>
It may seem cruel to keep saying &quot;convenience &quot; but it is. Studen=
ts
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 =A0out but being able
to
watch a film anytime anywhere is =A0not 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&#39;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&#39;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 =A0without me. <br>
<br>
<br>
<br>
<br>
On Tue, Mar 24, 2009 at 1:19 PM, Carrie Russell &lt;<a href=3D"mailto:cruss=
ell@alawash.org" target=3D"_blank">crussell@alawash.org</a>&gt; wrote:
<br>
<br>
In response to Jessica&#39;s questions:<br>
<br>
I have no knowledge of people streaming titles for the convenience of<br>
students. =A0This may occur but it is not the topic of TEACH. =A0TEACH is<b=
r>
about performing and displaying protected works for non-profit<br>
educational purposes. =A0TEACH is about teaching - it says that protected<b=
r>
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. =A0If 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. =A0Congress was not thinking<=
br>
of books being a displayed or performed because this is not how books<br>
are used in the classroom. =A0They tried to make parallels to the<br>
face-to-face classroom. =A0So 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. =A0The 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. =A0Producers were not<br>
selling copies of 35mm film prints to the public. =A0That 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. =A0But 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. =A0The 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&#39;t know if they wer=
e<br>
thinking about independent video types but =A0they did not represent them<b=
r>
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. =A0What is different, of course, is the delivery method.<br=
>
It is a performance either way. =A0But 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. =A0If TEACH did not exist, educators would only have fair<br=
>
use to determine if a use was fair. =A0Before 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. =A0Now<=
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&#39;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. =A0I work with attorneys every day. =A0When 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. =A0 =A0They
thought<br>
that libraries, not knowing any better, &quot;fell for an argument&quot; th=
at
they<br>
had to pay. =A0University counsel was no help because they said &quot;gee,
you<br>
better pay that additional fee because we don&#39;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. =A0Just 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" target=3D"=
_blank">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" target=3D"_blank">videol=
ib@lists.berkeley.edu</a>
<br>
Message-ID:<br>
=A0 =A0 =A0 =A0&lt;<a href=3D"mailto:55e0d0090903240917q33181c8exbba82b6473=
f49287@mail.gmail.com" target=3D"_blank">55e0d0090903240917q33181c8exbba82b=
6473f49287@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 =A0films 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 o=
f
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 =A0line 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" target=3D"_blank">crussell@alaw=
ash.org</a>&gt;wrote:<br>
<br>
&gt; =A0I 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; =A0 =A01. TEACH Act applies to both synchronous and asynchronous
teaching.<br>
It<br>
&gt; =A0 =A0also applies to the blended classroom ? meaning you might be
taking<br>
a<br>
&gt; =A0 =A0regular face-to-face class but the teacher may use digital<br>
technologies to<br>
&gt; =A0 =A0deliver content to the classroom and to secure, networks for<br=
>
enrolled<br>
&gt; =A0 =A0students only (like Blackboard). =A0I quoted from the
legislative<br>
history to<br>
&gt; =A0 =A0explain this in an earlier post.<br>
&gt;<br>
&gt;<br>
&gt; <br>
&gt; =A0 =A01. TEACH limits the public performance of audiovisual works <br=
>
(including<br>
&gt; =A0 =A0DVDs) to portions necessary to meet the teaching goal.
=A0Throughout<br>
Section<br>
&gt; =A0 =A0110(2), we are reminded that one can use the portions that
they<br>
would<br>
&gt; =A0 =A0typically use in the analog/video/16mm classroom, but for
audio<br>
visual works<br>
&gt; =A0 =A0the law is saying even though you would ordinarily screen an
entire<br>
film in<br>
&gt; =A0 =A0the face-to-face classroom, you cannot do that under TEACH.<br>
Audiovisual<br>
&gt; =A0 =A0works are treated differently than most other works in TEACH.<b=
r>
&gt;<br>
&gt;<br>
&gt; <br>
&gt; =A0 =A01. Switching over to fair use (Section 107) -- The third
factor of <br>
fair<br>
&gt; =A0 =A0use asks that we consider the amount of work we want to use.
=A0If<br>
one can<br>
&gt; =A0 =A0generalize, the less you use, the more likely your use is
fair.<br>
HOWEVER,<br>
&gt; =A0 =A0the third factor is only one factor that we are asked to
consider<br>
in making<br>
&gt; =A0 =A0a fair use assessment. So, it is POSSIBLE that screening an
entire<br>
film via<br>
&gt; =A0 =A0a digital network might be fair given the specific facts of
the<br>
situation at<br>
&gt; =A0 =A0hand.<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. =A0Some<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. =A0Other people think it could be possible and they may<b=
r>
even be<br>
&gt; doing it. =A0Other 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. =A0The 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; =A0 =A01. Fair use guidelines (10% of this, 10 lines of that etc)
are MADE <br>
UP<br>
&gt; =A0 =A0rules. =A0They are not in the law ANYWHERE. =A0You may
choose to use<br>
guidelines<br>
&gt; =A0 =A0as your local policy but they do not have the force and
effect of<br>
law.<br>
&gt;<br>
&gt;<br>
&gt; <br>
&gt; =A0 =A01. On to anti-circumvention -- The DMCA put in effect a new
legal <br>
way<br>
&gt; =A0 =A0for rights holders to protect the use of their works
primarily to<br>
control<br>
&gt; =A0 =A0the unauthorized use of digital content that had not been
lawfully<br>
acquired<br>
&gt; =A0 =A0(paid for). =A0It is a deviation from the rest of the
copyright law<br>
in that it<br>
&gt; =A0 =A0controls ACCESS. =A0Under the copyright law?s exclusive
rights, there<br>
is no<br>
&gt; =A0 =A0right of access ? for example, you can go to the bookstore,
and<br>
look at<br>
&gt; =A0 =A0books and magazines, even read an article or two, without<br>
permission from<br>
&gt; =A0 =A0the rights holder -- =A0but the DMCA adds this right of
access for<br>
digital<br>
&gt; =A0 =A0works. =A0This makes sense to an extent because one should
pay to<br>
have digital<br>
&gt; =A0 =A0access (like with your cable bill). =A0It would be wrong
to snag a<br>
cable box<br>
&gt; =A0 =A0and get free cable. The thought was that rights holders need
to<br>
make money<br>
&gt; =A0 =A0on digital works which are obviously more vulnerable to easy<br=
>
copying and<br>
&gt; =A0 =A0distribution so this provision is necessary.<br>
&gt;<br>
&gt;<br>
&gt; <br>
&gt; =A0 =A01. The problem with digital locks comes into play when one
wants to <br>
use<br>
&gt; =A0 =A0a work in a lawful way but the technology prevents them from
doing<br>
so. =A0For<br>
&gt; =A0 =A0example, the library buys lots of DVDs. =A0Many are
encrypted with<br>
content<br>
&gt; =A0 =A0scrambling to prevent copying. =A0But some copying is
fair, such as<br>
showing<br>
&gt; =A0 =A0clips of DVDs in the classroom. =A0If you circumvent the
technology<br>
in order<br>
&gt; =A0 =A0to make the lawful clip, you are in violation of the DMCA<br>
anti-circumvention<br>
&gt; =A0 =A0provision (described above). =A0You may be exercising fair
use, but<br>
you broke<br>
&gt; =A0 =A0a code to do it and breaking the code is against the<br>
anti-circumvention<br>
&gt; =A0 =A0provision.<br>
&gt;<br>
&gt;<br>
&gt; <br>
&gt; =A0 =A01. Congress thought this might be a problem, so they added <br>
rulemaking<br>
&gt; =A0 =A0proceedings to occur every three years to find out if the<br>
anti-circumvention<br>
&gt; =A0 =A0provision was preventing the public from exercising fair use.
=A0One<br>
exemption<br>
&gt; =A0 =A0to the anti-circumvention provision that has been approved
for<br>
several years<br>
&gt; =A0 =A0is that one can circumvent an e-book to enable the read aloud<b=
r>
function so<br>
&gt; =A0 =A0the reading impaired can listen to an e-book they have
lawfully<br>
acquired.<br>
&gt;<br>
&gt;<br>
&gt; <br>
&gt; =A0 =A01. Currently under consideration is whether faculty can
circumvent <br>
CSS<br>
&gt; =A0 =A0technology on DVDs that they have purchased, in order to copy
a<br>
clip for use<br>
&gt; =A0 =A0in the face-to-face classroom.<br>
&gt;<br>
&gt;<br>
&gt; <br>
&gt; =A0 =A01. Finally to complicate matters ? back to TEACH (which was
passed <br>
&gt; =A0 =A0after the DMCA). =A0If you wanted to use a clip from a DVD
but could<br>
not do so<br>
&gt; =A0 =A0because of anti-circumvention, TEACH says you can go ahead
and<br>
digitize an<br>
&gt; =A0 =A0analog version of the title in order to create the digital
clip to<br>
use for<br>
&gt; =A0 =A0teaching. =A0TEACH spells this out specifically because
Congress does<br>
not want<br>
&gt; =A0 =A0you to violate the DMCA in order to exercise a right they
give you<br>
in<br>
&gt; =A0 =A0TEACH. =A0If you can only find your title in a format that
is<br>
encrypted (there<br>
&gt; =A0 =A0are no unencrypted version like a videotape), you are out of
luck.<br>
You<br>
&gt; =A0 =A0cannot break the code on the encrypted DVD UNLESS it is
decided<br>
that these<br>
&gt; =A0 =A0works are exempt in the DMCA rulemaking. =A0At this time,
they are<br>
exempt for<br>
&gt; =A0 =A0faculty who teach film or media studies, not for any other
faculty<br>
unless<br>
&gt; =A0 =A0there is a change made at the rulemaking to expand the
provision.<br>
&gt;<br>
&gt;<br>
&gt; <br>
&gt; =A0 =A01. 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 =A0Avenue 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" target=3D"_blank">crussell@ala=
wash.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:10pt">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></p>
</div>
</div></div><pre><hr size=3D"4" width=3D"90%"><div class=3D"im">VIDEOLIB =
is intended to encourage the broad and lively discussion of issues relating=
to the selection, evaluation, acquisition,bibliographic control, preservat=
ion, 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 l=
ibraries,educational institutions, and video producers and distributors.
</div></pre>
</blockquote>
</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>

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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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