Re: [Videolib] FW: digital A/V archive? a copyright matter

From: Sarah McCleskey <Sarah.E.McCleskey@hofstra.edu>
Date: Sat Jul 11 2009 - 12:14:46 PDT

I cannot resist putting my 2 cents in. First, of all, I LOVE THIS LIST.
 THANK YOU ALL for being so thoughtful and entertaining and informative
and all-around fabulous.

I *think* the first and fourth factors are generally given more
consideration in the courts (although not always and we could discuss
and debate court decisions ad infinitum/nauseam). In addition to many
other questions I ask myself (and document ... grin ...) when making a
fair use decision, I always ask myself "could this copy serve as a
substitute/replacement for purchase of the actual item?" I think that
helps boil it down a lot. If there is evidence that the copy I want to
make would enable me or someone else to *not* purchase an item that is
readily and legally available, I am definitely causing harm to the
market for the original.

Sarah @ Hofstra

Michael,I would say your mostly right but to be fair (pun intended). I
would
definitely interpret "using the following four guidelines to make a
determination" as if any one of the four is egregious, then it doesn't
work.
But then again, if it matches two and the other two are on the border or
even if all four are borderline, then I would say there's a good chance
of
legitimate use. It's not really a pick and choose to see what one wants
to
see, but a question of good judgement.

Dennis

On Sat, Jul 11, 2009 at 10:08 AM, Brewer, Michael <
brewerm@u.library.arizona.edu> wrote:

> I agree this is not a fair use, but I would argue that a use does not
have
> to "pass" all 4 factors to be fair as Dennis asserts. That is not how
it
> works. The balance has to be in favor or the fair use. This could
fit with
> 108, but only in very specific situations (and not making a copy up
front
> "just in case"). see: http://librarycopyright.net/109spinner/
>
> mb
> ________________________________
> From: videolib-bounces@lists.berkeley.edu [
> videolib-bounces@lists.berkeley.edu] On Behalf Of Jessica Rosner [
> maddux2014@gmail.com]
> Sent: Friday, July 10, 2009 3:44 PM
> To: videolib@lists.berkeley.edu
> Subject: Re: [Videolib] FW: digital A/V archive? a copyright matter
>
> This is not even close to being "fair use" but I think Dennis has
covered
> that pretty well. It would be the same as if you scanned every
copyrighted
> book in case it got stolen and just spit out a replacement if one
did. For
> some reason I find people understand that it is illegal but keep
trying to
> push the envelope of video materials. It is unfortunate if folks have
a high
> theft or damage rate but it does not entitle insitutions to rip off
rights
> holders.
>
> On Fri, Jul 10, 2009 at 12:57 PM, Dennis Doros <milefilms@gmail.com
> <mailto:milefilms@gmail.com>> wrote:
> Dear Peter,
>
> Not to get personal, but you're right and Matt is definitely out on a
limb
> with his reasoning -- and truly, that limb doesn't even exist. Rockaby
Baby
> on the treetop would be a morgue stat before the poor kid even shut
his
> eyes.
>
> First, Fair Use has to pass all four tests. With numbers 1 and 2, the
> nature of the work fails you right away. If the DVDs are commercial
works
> like the Dark Knight, you can't really say you're copying them for
> educational purposes. (Or for aesthetic, but that's just a personal
> opinion...) And let's face it, I'm guessing outside of exercise dvds,
people
> are probably stealing commercial films 90% of the time. And I'm also
> assuming that home use (which most public library DVDs are designed
for)
> doesn't even come under educational use by definition of the law.
>
> After that, copying a film in its entirety, flunks rule number 3
beyond any
> reasonable doubt. With rule number 4, the financial effect on the
library by
> making multiple copies and people stealing them would be nonexistent
for you
> but extremely damaging to the copyright holder. There's enough bootleg
> copies out there without libraries adding more to their number.
>
> And of course, copying DVDs with encryption codes (and they ALL have
> Frankly, we've never sued anybody in our twenty years of business, but
if I
> found a library was copying my DVDs and putting them on their shelves,
I
> would not hesitate. I'm absolutely sympathetic to your plight but
there must
> be better theft solutions that libraries have. I assume keeping the
DVD
> discs themselves behind the desk is the best.
>
> Best,
> Dennis Doros
> Milestone Film & Video
> PO Box 128
> Harrington Park, NJ 07640
> Phone: 201-767-3117
> Fax: 201-767-3035
> email: milefilms@gmail.com<mailto:milefilms@gmail.com>
> www.milestonefilms.com<http://www.milestonefilms.com/>
> www.arayafilm.com<http://www.arayafilm.com/>
> www.exilesfilm.com<http://www.exilesfilm.com/>
> www.killerofsheep.com<http://www.killerofsheep.com/>
>
> St. Louis 2009
> www.amianet.org<http://www.amianet.org/>
>
> On Fri, Jul 10, 2009 at 1:14 PM, Cartford, Peter, JCL <
> CartfordP@jocolibrary.org<mailto:CartfordP@jocolibrary.org>> wrote:
>
> Copyright question:
>
>
>
> A staff member here (see below) is proposing that we deal with our DVD
> theft problem by creating and storing digital copies of DVDs and using
those
> to make replacements. According to him fair use fair use covers such
> reproduction. I say no, this violates the copyright holder’s
fundamental
> rights to reproduce and distribute and that fair use doesn’t apply.
(If it
> did, we would have all been doing this for years.)
>
>
>
> I think this one’s pretty clear cut. Anyone disagree?
>
>
>
>
>
> Peter Cartford
>
> AV Librarian
>
> Johnson County Library
>
> 9875 W. 87th St.
>
> Overland Park, KS 66212
>
> 913-495-2496
>
> cartfordp@jocolibrary.org<mailto:cartfordp@jocolibrary.org>
>
> From: Fenton, Kim, JCL
> Sent: Friday, July 10, 2009 9:41 AM
> To: Shrock, Matt, JCL; Sendze, Monique, JCL; Barnes, Jason, JCL;
Cartford,
> Peter, JCL; Hile, Mary Anne, JCL; Crane, Rose, JCL; Weeks, Carolyn,
JCL
> Cc: King, Linda, JCL
> Subject: RE: digital A/V archive?
>
>
>
> Good Morning All,
>
>
>
> Matt Shrock, a page here at Central, has a proposal for us which may
indeed
> save a significant portion of our A/V collections budget. I’m
forwarding it
> to each of you in the hopes that you’ll consider his concept—let the
debate
> begin :)
>
>
>
> Matt, wonderful job. Beautifully written and well thought through.
>
>
>
> I’m anxious to hear everyone’s opinions. I feel like it’s definitely
worth
> investigating (assuming we haven’t done it already and I don’t know
about
> it.)
>
>
>
> Kim Fenton
>
> Circulation Manager
>
> Johnson County Library
>
> 9875 W. 87th Street
>
> Overland Park, KS 66212
>
> Phone (913) 495-2413
>
> Fax (913) 495-2485
>
> www.jocolibrary.org<http://www.jocolibrary.org/>
>
> From: Shrock, Matt, JCL
> Sent: Thursday, July 09, 2009 3:33 PM
> To: Fenton, Kim, JCL
> Subject: digital A/V archive?
>
>
>
> Kim,
>
>
>
> It is my understanding that theft of DVDs has been an
ever-increasing
> problem, despite the recent addition of signage indicating the
presence of
> security cameras. In a single day alone, 25 DVDs were found stolen.
With
> the high costs of replacing these materials in mind, I urge you to
consider
> the following proposal:
>
>
>
> A digital archive could be established within Tech Services and
easily
> integrated within the processing of new materials. Using a single PC
> workstation and an array of network storage devices, digital copies of
DVDs,
> CDs, and necessary cover art(s) can be stored for backup. To prevent
> bandwidth and potential security issues, the workstation and network
storage
> can exist on an isolated LAN using high-speed Ethernet. In the event
of
> theft or damage to original materials, archived copies can be
reproduced.
> This solution provides a potential for great long-term cost savings,
given
> the current affordability of storage. Additionally, the use of
network
> storage devices allows the system to be effectively expande> fair use (section 107) clause. Furthermore, libraries traditionally
receive
> additional leeway in realm of fair use. Fair use is determined on a
> case-by-case basis, using the following four guidelines to make a
> determination:
>
> 1. The purpose and character of the use, including whether such use
is of
> commercial nature or is for nonprofit educational purposes
> 2. The nature of the copyrighted work
> 3. The amount and substantiality of the portion used in relation to
the
> copyrighted work as a whole
> 4. The effect of the use upon the potential market for, or value of,
the
> copyrighted work
>
> (full disclosure: this is basically a copy/paste from section 107,
no
> infringement on my part please~)
>
>
>
> This four factor test is used to balance to interests of both
consumers
> and copyright holders; failing one of these tests does not necessarily
imply
> that fair use is not applicable. Within the context of this issue,
there
> are two primary two factors which may impact the fair use
determination.
>
>
>
> 1. Use is non-profit, but cases exist in which patrons are
charged
> for damages or loss of materials. If this violates fair use, charges
could
> be waived or adjusted to reflect lower replacement costs.
>
> 2. I argue that copyright holders will not be impacted, simply
due to
> the fact that we would still have other copies of these materials in
> circulation, none of which the copyright holder receives royalties for
based
> upon our circulation of the materials. Furthermore, failure to
replace
> these damaged or lost materials negatively impacts our patrons and our
> budget, creating an imbalance which can only be resolved by fair use!
>
>
>
> In order to fully comply with fair use, it may be necessary to add
an
> indication that the materials have been reproduced under the fair use
> clause. This can be achieved either via a physical sticker on the
case, or
> a digital watermark displayed before video playback. Furthermore, it
would
> be wise to archive purchase orders for any materials that are archived
using
> this process.
>
>
>
> I am clearly not a copyright lawyer, but I do have experience with
> post-DMCA copyright law. In-house legal council should certainly weigh
in on
> the matter, but certainly feel that fair use will apply in this
matter.
>
>
>
> If anything is unclear or you have any follow up questions, feel
free
> to fire away.
>
>
>
> -Matt
>
> VIDEOLIB is intended to encourage the broad and lively discussion of
issues
> relating to the selection, evaluation, acquisition,bibliographic
control,
> preservation, and use of current and evolving video formats in
libraries and
> related institutions. It is hoped that the list will serve as an
effective
> working tool for video librarians, as well as a channel of
communication
> between libraries,educational institutions, and video producers and
> distributors.
>
>
>
>
> --
>
>
> VIDEOLIB is intended to encourage the broad and lively discussion of
issues
> relating to the selection, evaluation, acquisition,bibliographic
control,
> preservation, and use of current and evolving video formats in
libraries and
> related institutions. It is hoped that the list will serve as an
effective
> working tool for video librarians, as well as a channel of
communication
> between libraries,educational institutions, and video producers and
> distributors.
>
>
>
> 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.
>

-- 
Best,
Dennis Doros
Milestone Film & Video
PO Bowww.exilesfilm.com
www.killerofsheep.com
St. Louis 2009
www.amianet.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.
Received on Sat Jul 11 12:15:50 2009

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