Re: [Videolib] classroom use of "home and community viewing"

From: Jessica Rosner <maddux2014@gmail.com>
Date: Wed Jul 29 2009 - 11:31:34 PDT

um typing too fast as usual that first word should CITE not sigh. Still
recovering from ugly Cub loss last night.

On Wed, Jul 29, 2009 at 2:30 PM, Jessica Rosner <maddux2014@gmail.com>wrote:

> Sigh than cite ANY case in the long history of "Fair Use' other than Sony
> that has ever allowed a long complete work. Also ANY other case in which the
> use was NOT transformative (as in being used to create part of a NEW work)
> There have been many cases since then. Though it appears the Georgia State
> case will be settled before it gets to trial it is DIRECTLY on point. School
> claimed that it could put whole works ( actually in this case only whole
> articles and chapters not I believe an entire LONG book) under "Fair Use'
> but as soon as the publishers took action they backed down.
> I agree what is needed here is frankly a major rights holder to either sue
> or at least take some kind of action to get this over once and for all.
> Funny thing
> is I have seen a variety of justifications for streaming on whole films
> usually it is some kind of weird mix of "Fair Use" and the TEACH act but
> neither covers it completely and if one brings in the DMCA all else
> basically becomes irrelevant because it is VERY clear you can't break the
> encryption in order to stream but somehow this gets conveniently ignored.
>
> One more point the first poster said maybe librarians here where
> reluctant to discuss this because distributors are on this listserv. I don't
> doubt it and I am naive I know a LOT of illegal streaming of feature films
> is going on campuses all over the country through official ( i.e media or
> library etc) offices. So if Michael, you etc believe it is "fair use " or
> covered under TEACH to stream the whole film why should one be afraid to
> discuss it openly ?
>
>
> On Wed, Jul 29, 2009 at 2:13 PM, <ghandman@library.berkeley.edu> wrote:
>
>> Fairs Use" is not a cuddly phrase to help colleges
>> save money because something is being used for education.
>>
>> I agree...
>>
>> It has a VERY
>> specific legal history that it is meant to allow people to use otherwise
>> copyrighted works to create new works.
>>
>> I don't agree. Fair use is a very old concept of law that's much
>> broader than what you're saying here. It has nothing specifically to
>> do with the creation of new works... Transformative uses are, indeed,
>> one possible fair use, but not the only. I don't know WHERE you got
>> fixated on this as the sole litmus for testing fair use...it's simply
>> not the case.
>>
>>
>>
>> No one on this list has ever (to my failing memory, at least) suggested
>> that copping entire works
>>
>>
>> > Seriously Gary. You now believe it is "fair use' to stream an entire
>> film
>> > ?
>> > If it were legal to claim "Fair Use " to copy an entire work why the
>> heck
>> > buy more than one copy of a book for class just make copies and claim
>> > "fair
>> > use" Why not stream the books too ? The ONLY case in the history of
>> > copyright that allowed "Fair Use' for an ENTIRE long work which was the
>> > Sony
>> > Case 25 years ago and for HOME USE ONLY. The ENTIRE history of "Fair Use
>> "
>> > is that it allows you to use a portion of a copyrighted work to create
>> a
>> > new work ( lecture,article book). In the case where the whole work is
>> > small
>> > by itself it is possible to use it as part of another work but "Fair
>> Use"
>> > as a defense against using a whole work just because basically you don't
>> > want to spend the money to either buy more copies or license it for
>> > streaming is not remotely the same. As recently as Monday a judge ruled
>> > against "Fair Use" as a defense for a student sharing downloads. He was
>> > not
>> > profiting from it but "Fairs Use" is not a cuddly phrase to help
>> > colleges
>> > save money because something is being used for education.It has a VERY
>> > specific legal history that it is meant to allow people to use otherwise
>> > copyrighted works to create new works.This is kind of critical issue
>> which
>> > is why I am so vocal. Kind of sensitive since this was at least part of
>> > the
>> > reason I lost my job. I assume folks have been following the Georgia
>> State
>> > case which is almost directly on point. Georgia State argued that "fair
>> > use"
>> > covered entire works and put a bunch of written works
>> > up on their web site for classroom use. They were sued by a group of
>> small
>> > publishers. They have now backed down but the fight is now over if the
>> > publishers can get DAMAGES for the previous violation. Do to "sovereign
>> > immunity" ( being a state school) the answer appears not but the
>> > publishers
>> > are still pushing for a judgement on this.
>> >
>> > Gary
>> > is it now your opinion that "Fair Use" would allow you to stream any
>> > item in the library for a course ? That certainly would be a change.
>> >
>> > On Wed, Jul 29, 2009 at 1:31 PM, <ghandman@library.berkeley.edu> wrote:
>> >
>> >> Brilliant, John
>> >>
>> >> By the way, these discussions don't generally tend to denigrate or
>> >> downplay fair use--Jessica does.
>> >>
>> >> Gary
>> >>
>> >>
>> >>
>> >> > I agree with Michael, and so do a lot of other people/orgs. Fair
>> >> > Use's 3rd factor does not need to be satisfied in order for a use to
>> >> > be considered fair under the law. Music librarians have been
>> >> > providing access to complete works via streaming reserves for years:
>> >> > see MLA's Statement on the Digital Transmission of Electronic
>> >> > Reserves - http://bit.ly/ABppj - "Digital copies may be made of
>> whole
>> >> > movements or whole works."
>> >> >
>> >> > For a more general statement see ARL's "Applying Fair Use in the
>> >> > Development of Electronic Reserves Systems" - http://bit.ly/37LrEr -
>> >> > "Because the amount that a faculty member assigns depends on many
>> >> > factors, such as relevance to the teaching objective and the overall
>> >> > amount of material assigned, librarians may also consider whether the
>> >> > amount, even the entire work, is appropriate to support the lesson or
>> >> > make the point. "
>> >> >
>> >> > On the publisher's side of the discussion, AAP, AAU, & AAUP conceded
>> >> > that displaying whole works within the context of teaching/research
>> >> > oriented campus settings may be fair use: see Campus Copyright Rights
>> >> > and Responsibilities - http://bit.ly/3i8Y8P - "The larger the
>> portion
>> >> > of a work used, the less likely it is to be fair use, although in
>> >> > appropriate circumstances (e.g., research, classroom display or
>> >> > distribution, parody) use of an entire work ... may be a fair use."
>> >> >
>> >> > Finally, see Harvard's "Copyright and Fair Use: A Guide for the
>> >> > Harvard Community" - http://bit.ly/cJFDH - "Also important in
>> >> > applying the third factor is the nexus between the purpose of the
>> >> > fair use and the portion of the copyrighted work taken. The extent of
>> >> > permissible copying varies with the purpose and character of the use.
>> >> > Taking more of the copyrighted work than is necessary to accomplish
>> >> > the fair user’s salutary purpose will weigh against fair use. In some
>> >> > cases, the fact that the entire work—for example, an image—was needed
>> >> > to accomplish the fair use purpose has led the court to hold that the
>> >> > third factor was neutral, favoring neither the copyright holder nor
>> >> > the putative fair user."
>> >> >
>> >> > By dismissing Fair Use in favor of (for example) purchasing blanket
>> >> > PPR licenses for classroom streaming, librarians are further eroding
>> >> > section 107. I don't know why these Videolib discussions tend to
>> >> > dismiss Fair Use (unlike similar discussions on the Music Library
>> >> > Association list). Is it the presence of industry reps on the list?
>> >> > Is it the video librarian's commuinty early adoption of CONFU?
>> >> > Whatever the case, it's has a chilling and disorienting effect on our
>> >> > understanding of the issue.
>> >> >
>> >> > John
>> >> > _________
>> >> > John Vallier
>> >> > Head, Distributed Media Services
>> >> > University of Washington Libraries
>> >> > vallier@uw.edu | tel. 206-616-1210
>> >> >
>> >> >> On Tue, Jul 28, 2009 at 9:21 PM, Brewer, Michael <
>> >> >> brewerm@u.library.arizona.edu> wrote:
>> >> >>> That said, I do still think that this wording does not mean that
>> >> >>> only less
>> >> >>> than the whole can be used. The court cases and practices I sited
>> >> >>> before
>> >> >>> make it pretty clear that it can. My reading, and I assume the
>> >> >>> reading of
>> >> >>> the judges in those cases, is that "portion used in relation to
>> >> >>> the whole"
>> >> >>> here is taken to mean "what percentage of the work is being used?"
>> >> >>>
>> >> >>> I'd like to know more about how judges have written about this in
>> >> >>> their
>> >> >>> rulings. I'll snoop around a bit and see what I can come up with
>> >> >>> and share
>> >> >>> it with the list.
>> >> >>>
>> >> >>> Thanks for keeping me honest!
>> >> >>>
>> >> >>> mb
>> >> >
>> >> >
>> >> >
>> >> > 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.
>> >> >
>> >>
>> >>
>> >> Gary Handman
>> >> Director
>> >> Media Resources Center
>> >> Moffitt Library
>> >> UC Berkeley
>> >>
>> >> 510-643-8566
>> >> ghandman@library.berkeley.edu
>> >> http://www.lib.berkeley.edu/MRC
>> >>
>> >> "I have always preferred the reflection of life to life itself."
>> >> --Francois Truffaut
>> >>
>> >>
>> >> 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.
>> >
>>
>>
>> Gary Handman
>> Director
>> Media Resources Center
>> Moffitt Library
>> UC Berkeley
>>
>> 510-643-8566
>> ghandman@library.berkeley.edu
>> http://www.lib.berkeley.edu/MRC
>>
>> "I have always preferred the reflection of life to life itself."
>> --Francois Truffaut
>>
>>
>> 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.
Received on Wed Jul 29 11:31:44 2009

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