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

Badilla-Melendez, Cindy (cbadillame@stthomas.edu)
Tue, 24 Mar 2009 16:11:54 -0500

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I don't agree about students having to buy DVDs. They already pay way too m=
uch in tuition, and in some places they don't get their money worth.
There is a lot of videos out print even though they were produced in 2006, =
too.

A lot of the students don't have that money.

I don't agree with streaming an entire film either

__________________________________________________
Cindy Badilla-Melendez
Media Resources Librarian
O'Shaughnessy-Frey Library,
University of St. Thomas
Mail #5004, 2115 Summit Ave,
St Paul, MN 55105
phone (651) 962-5464
fax (651) 962-5406
From: videolib-bounces@lists.berkeley.edu [mailto:videolib-bounces@lists.be=
rkeley.edu] On Behalf Of Tom.Ipri@unlv.edu
Sent: Tuesday, March 24, 2009 1:03 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 requi=
re students to buy movies more often or maybe that's just been in my experi=
ence.

In my last position, our School of Nursing wanted the library to buy a larg=
e number of copies of a particular title because every incoming nursing stu=
dent had to watch it. They wanted us to put all the copies on reserve. I wa=
s concerned about the demand on my dept. The dvd cost under $15 so I sugges=
ted 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.

Not sure what it is about video that makes faculty hesitate about requiring=
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>
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 po=
st office). I don't have a problem with
TEACH for Distance Education but when applied to "regular" classes and thos=
e bricks and mortar schools I do.

It may seem cruel to keep saying "convenience " but it is. Students CAN wat=
ch the film in class, they can watch the film in the library and I assume d=
epending 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 t=
hat students would have to buy a copy of every film used in a class and I d=
on't blame them but they DO buy copies of books used in classes so IF you w=
ant
to be able to see a film OUTSIDE of a class and OUTSIDE of a library there =
should be a fee.

I still find it inordinately frustrating that no person or institution whic=
h 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.

Now to the post office

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

On Tue, Mar 24, 2009 at 1:19 PM, Carrie Russell <crussell@alawash.org<mailt=
o: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<mailto:maddux2014@gmail.com>>
Subject: Re: [Videolib] whoa! what a flurry of emails on film clips
To: videolib@lists.berkeley.edu<mailto:videolib@lists.berkeley.edu>
Message-ID:
<55e0d0090903240917q33181c8exbba82b6473f49287@mail.gmail.com<mailto:=
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<mailto: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<mailto: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.
>
>
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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 an=
d 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 distrib=
utors.
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 an=
d 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 distrib=
utors.

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<div class=3DSection1>

<p class=3DMsoNormal><span style=3D'font-size:11.0pt;font-family:"Calibri",=
"sans-serif";
color:#1F497D'>I don&#8217;t agree about students having to buy DVDs. They
already pay way too much in tuition, and in some places they don&#8217;t ge=
t their
money worth.<o:p></o:p></span></p>

<p class=3DMsoNormal><span style=3D'font-size:11.0pt;font-family:"Calibri",=
"sans-serif";
color:#1F497D'>There is a lot of videos out print even though they were pro=
duced
in 2006, too.<o:p></o:p></span></p>

<p class=3DMsoNormal><span style=3D'font-size:11.0pt;font-family:"Calibri",=
"sans-serif";
color:#1F497D'><o:p>&nbsp;</o:p></span></p>

<p class=3DMsoNormal><span style=3D'font-size:11.0pt;font-family:"Calibri",=
"sans-serif";
color:#1F497D'>A lot of the students don&#8217;t have that money.<o:p></o:p=
></span></p>

<p class=3DMsoNormal><span style=3D'font-size:11.0pt;font-family:"Calibri",=
"sans-serif";
color:#1F497D'><o:p>&nbsp;</o:p></span></p>

<p class=3DMsoNormal><span style=3D'font-size:11.0pt;font-family:"Calibri",=
"sans-serif";
color:#1F497D'>I don&#8217;t agree with streaming an entire film either<o:p=
></o:p></span></p>

<p class=3DMsoNormal><span style=3D'font-size:11.0pt;font-family:"Calibri",=
"sans-serif";
color:#1F497D'><o:p>&nbsp;</o:p></span></p>

<p class=3DMsoNormal><span style=3D'font-size:11.0pt;font-family:"Calibri",=
"sans-serif";
color:#1F497D'><o:p>&nbsp;</o:p></span></p>

<p class=3DMsoNormal><span style=3D'font-size:11.0pt;font-family:"Calibri",=
"sans-serif";
color:#1F497D'><o:p>&nbsp;</o:p></span></p>

<p class=3DMsoNormal><span style=3D'font-size:10.0pt;font-family:"Arial","s=
ans-serif";
color:#1F497D'>__________________________________________________</span><sp=
an
style=3D'color:#1F497D'> <br>
</span><span style=3D'font-size:10.0pt;font-family:"Courier New";color:#1F4=
97D'>Cindy
Badilla-Melendez</span><span style=3D'color:#1F497D'> <br>
</span><span style=3D'font-size:10.0pt;font-family:"Courier New";color:#1F4=
97D'>Media
Resources Librarian</span><span style=3D'color:#1F497D'> <br>
</span><span style=3D'font-size:10.0pt;font-family:"Courier New";color:#1F4=
97D'>O'Shaughnessy-Frey
Library, </span><span style=3D'color:#1F497D'><br>
</span><span style=3D'font-size:10.0pt;font-family:"Courier New";color:#1F4=
97D'>University
of St. Thomas&nbsp;&nbsp;<br>
Mail #5004, 2115 Summit Ave,<br>
St Paul, MN
55105&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbs=
p;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
</span><span style=3D'color:#1F497D'><br>
</span><span style=3D'font-size:10.0pt;font-family:"Courier New";color:#1F4=
97D'>phone
(651) 962-5464</span><span style=3D'color:#1F497D'> <br>
</span><span style=3D'font-size:10.0pt;font-family:"Courier New";color:#1F4=
97D'>fax
(651) 962-5406</span><span style=3D'color:#1F497D'> </span><span
style=3D'font-size:11.0pt;font-family:"Calibri","sans-serif";color:#1F497D'=
><o:p></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-boun=
ces@lists.berkeley.edu
[mailto:videolib-bounces@lists.berkeley.edu] <b>On Behalf Of </b>Tom.Ipri@u=
nlv.edu<br>
<b>Sent:</b> Tuesday, March 24, 2009 1:03 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 ge=
t 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 las=
t
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 the=
y
just require all the students to buy the dvd. At first, I got looked at lik=
e 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 p=
ut
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>

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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>
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<tr>
<td valign=3Dtop style=3D'background:white;padding:.75pt .75pt .75pt .7=
5pt'>
<p class=3DMsoNormal align=3Dcenter style=3D'text-align:center'><span
style=3D'font-size:7.5pt;font-family:"Arial","sans-serif"'>Please respo=
nd 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%'>
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<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>
</td>
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</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"'>Subject</spa=
n><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"'>Re:
[Videolib] whoa! what a flurry of emails on film clips</span><o:p></o:p=
></p>
</td>
</tr>
</table>
<p class=3DMsoNormal><o:p>&nbsp;</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 po=
st
office). I don'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 &nbsp;out but being abl=
e 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 clas=
s
and I don't blame them but they DO buy copies of books used in classes so I=
F
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 whic=
h
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 acce=
ss
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: <b=
r>
<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;TEAC=
H is<br>
about performing and displaying protected works for non-profit<br>
educational purposes. &nbsp;TEACH is about teaching - it says that protecte=
d<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 thinki=
ng<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 f=
or<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<b=
r>
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 w=
ho<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 the=
m<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;N=
ow<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 t=
hat<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; th=
at
they<br>
had to pay. &nbsp;University counsel was no help because they said &quot;ge=
e,
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.com"=
>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 convenienc=
e.<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 &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;wro=
te:<br>
<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 digita=
l<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 wor=
ks <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 tha=
t
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 TEAC=
H.<br>
Audiovisual<br>
&gt; &nbsp; &nbsp;works are treated differently than most other works in TE=
ACH.<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 u=
se.
&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 ma=
y<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 n=
ew
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 exclusiv=
e
rights, there<br>
is no<br>
&gt; &nbsp; &nbsp;right of access ? for example, you can go to the bookstor=
e,
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 o=
f
access for<br>
digital<br>
&gt; &nbsp; &nbsp;works. &nbsp;This makes sense to an extent because one sh=
ould
pay to<br>
have digital<br>
&gt; &nbsp; &nbsp;access (like with your cable bill). &nbsp;It would be wro=
ng
to snag a<br>
cable box<br>
&gt; &nbsp; &nbsp;and get free cable. The thought was that rights holders n=
eed
to<br>
make money<br>
&gt; &nbsp; &nbsp;on digital works which are obviously more vulnerable to e=
asy<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 on=
e
wants to <br>
use<br>
&gt; &nbsp; &nbsp;a work in a lawful way but the technology prevents them f=
rom
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 t=
he
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 adde=
d <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 approve=
d
for<br>
several years<br>
&gt; &nbsp; &nbsp;is that one can circumvent an e-book to enable the read a=
loud<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 w=
as
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 ahea=
d
and<br>
digitize an<br>
&gt; &nbsp; &nbsp;analog version of the title in order to create the digita=
l
clip to<br>
use for<br>
&gt; &nbsp; &nbsp;teaching. &nbsp;TEACH spells this out specifically becaus=
e
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 ti=
me,
they are<br>
exempt for<br>
&gt; &nbsp; &nbsp;faculty who teach film or media studies, not for any othe=
r
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<b=
r>
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 an=
d
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 t=
hat
the list will serve as an effective working tool for video librarians, as w=
ell
as a channel of communication between libraries,educational institutions, a=
nd
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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