Re: Electronic reserves & audio & video clips

Rick Provine (provine@virginia.edu)
Fri, 04 Sep 1998 11:43:29 -0400

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I think the name of the game is "good faith." IP is not the most secure,
to be
sure. But it does show a "good faith effort" to restrict use. Password is
probably better.

And I don't think that applying the broader fair use exemption is a stretch.
That's what its for..."Fair use!" Keep in mind that the tests of fair use
range from complete works being exempt (Sony v. Universal) to very tiny pieces
NOT being exempt. Fair use is determined case-by-case. That's why there
is no
easy-to-follow guide for what you can do. So use good judgement and show GOOD
FAITH.

As for the temptation to archive, I think you are right. If you want to grow
this collection, you will need permission. But the potential for abuse
doesn't
make it wrong. Only the act.

At 08:32 AM 9/4/98 -0700, you wrote:
>Rick...ol' pal:
>
>Rick...when push comes to shove, the only expressly stated fair use of
>video (or moving image stuff in general) is face-to-face classroom
>teaching. I guess one could apply the broader tests of FU:
>
>--purpose and character of the use--including whether use is of a
>commercial nature or is for non-profit educational purposes;
>
>--nature of the copyrighted work
>
>--Amount and substantiality of the portion used in relation to the
>copyrighted work as a whole.
>
>--the effect of the use upon the potential market for or value of the
>copyrighted work
>
>..but the fact remains that trasfer of analog to digital treads on the
>exclusive rights of the copyright holder to make derivative works. ...that
>and, as I contended in my last mail, it's unlikely that an institution that
>goes to the trouble of digitizing clips is gonna adhere to the restricted
>retention requirements of the copyright law... Also, although we all seem
>to be pinning our hopes to the ol' "restricted IP" gambit, I wonder how
>this rationale would hold up in court.
>
>gary
>
>
>
>>I am not so sure I completely agree with you, Gary. Certainly there are no
>>statutes that grant this use absolutely, but if you examine the tests of
fair
>>use, then I think you can make a good case.
>>
>>Of course, you need to restrict access to the materials (not available
outside
>>of your domain, or password protected). And of course, building an archive
>>without permission is also tabu...but treating the clips like other reserve
>>materials for a semester seems fine to me.
>>
>>
>>At 01:27 PM 9/3/98 -0700, Gary Handman wrote:
>>>Karen...
>>>
>>>It seems to me that there is absolutely NO leg to stand on, legally or
>>>otherwise, as far as putting up reserve viewing clips (a derivative work is
>>>a derivative work). As we all know, the rules for the print domain are
>>>substantially different from the moving image and sound domain...in the
>>>latter case, neither the current copyright law nor the detestable CCUMC
>>>multimedia fair use guidelines (nor the abortive CONFU draft guidelines on
>>>reserves) would seem to offer even the slightest crack into which to wedge
>>>such an enterprise.
>>>
>>>The exceptions would, of course, be clips of items owned by your
>>>institution, items clearly identifiable as PD (good luck!), or stuff for
>>>which permission has been secured.
>>>
>>>At UCB, we're going to start experimenting with putting up compendia of
>>>streamed clips using stuff which we know is "safe" and to limit these to
>>>the Berkeley.edu domain. Don't think I'd be willing to step too far
>>>outside of these bounds at present.
>>>
>>>Even if video could be tucked into the same legal niche as print reserves,
>>>there's still the issue of retention to be faced: in theory, print
>>>reserves are permitted because of the notion that the material is needed in
>>>short order--that use of this material has the element of spontaneity which
>>>would be shot by having to first secure permissions. That's why keeping
>>>stuff indefinitely on reserve (or at least on reserve for multiple
>>>semesters) is a "no." Now, just think of the work it's gonna take to edit,
>>>digitize and mount video clips. You really gonna want to scrap all this
>>>work after one or two semesters; I don't think so.
>>>
>>>
>>>I'd be very interested in learning about how your project is going, or if
>>>you come across opinion or information which runs contrary to my spoutings
>>>above...
>>>
>>>Cheers!
>>>
>>>Gary Handman
>>>Director
>>>Media Resources Center
>>>Moffitt Library
>>>UC Berkeley, CA 94720-6000
>>>510-643-8566
>>>ghandman@library.berkeley.edu
>>>http://www.lib.berkeley.edu/MRC
>>>
>>>"You are looking into the mind of home video. It is innocent, it is
aimless,
>>>it is determined, it is real" --Don DeLillo, Underworld
>>>
>>________________________________________
>>Rick E. Provine
>>Director for Media and Electronic Center Services
>>Clemons Library||University of Virginia
>>VOICE 804.924.8814
>>FAX 804.924.7468
>>CELL 804.981.5541
>>provine@virginia.edu
>>www.lib.virginia.edu/ecenters.html
>>________________________________________
>>
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>>Content-Type: text/html; charset="us-ascii"
>>
>><html><div>I am not so sure I completely agree with you, Gary.&nbsp;
>>Certainly there are no statutes that grant this use absolutely, but if
>>you examine the tests of fair use, then I think you can make a good
>>case.&nbsp; </div>
>><br>
>><div>Of course, you need to restrict access to the materials (not
>>available outside of your domain, or password protected).&nbsp; And of
>>course, building an archive without permission is also tabu...but
>>treating the clips like other reserve materials for a semester seems fine
>>to me.&nbsp; </div>
>><br>
>><br>
>><div>At 01:27 PM 9/3/98 -0700, Gary Handman wrote:</div>
>><div>&gt;Karen...</div>
>><div>&gt;</div>
>><div>&gt;It seems to me that there is absolutely NO leg to stand on,
>>legally or</div>
>><div>&gt;otherwise, as far as putting up reserve viewing clips (a
>>derivative work is</div>
>><div>&gt;a derivative work).&nbsp; As we all know, the rules for the
>>print domain are</div>
>><div>&gt;substantially different from the moving image and sound
>>domain...in the</div>
>><div>&gt;latter case, neither the current copyright law nor the
>>detestable CCUMC</div>
>><div>&gt;multimedia fair use guidelines (nor the abortive CONFU draft
>>guidelines on</div>
>><div>&gt;reserves) would seem to offer even the slightest crack into
>>which to wedge</div>
>><div>&gt;such an enterprise.</div>
>><div>&gt;</div>
>><div>&gt;The exceptions would, of course, be clips of items owned by
>>your</div>
>><div>&gt;institution, items clearly identifiable as PD (good luck!), or
>>stuff for</div>
>><div>&gt;which permission has been secured.</div>
>><div>&gt;</div>
>><div>&gt;At UCB, we're going to start experimenting with putting up
>>compendia of</div>
>><div>&gt;streamed clips using stuff which we know is
>>&quot;safe&quot;&nbsp; and to limit these to</div>
>><div>&gt;the Berkeley.edu domain.&nbsp;&nbsp; Don't think I'd be willing
>>to step too far</div>
>><div>&gt;outside of these bounds at present.</div>
>><div>&gt;</div>
>><div>&gt;Even if video could be tucked into the same legal niche as print
>>reserves,</div>
>><div>&gt;there's still the issue of retention to be faced:&nbsp; in
>>theory, print</div>
>><div>&gt;reserves are permitted because of the notion that the material
>>is needed in</div>
>><div>&gt;short order--that use of this material has the element of
>>spontaneity which</div>
>><div>&gt;would be shot by having to first secure permissions.&nbsp;
>>That's why keeping</div>
>><div>&gt;stuff indefinitely on reserve (or at least on reserve for
>>multiple</div>
>><div>&gt;semesters) is a &quot;no.&quot;&nbsp; Now, just think of the
>>work it's gonna take to edit,</div>
>><div>&gt;digitize and mount video clips.&nbsp; You really gonna want to
>>scrap all this</div>
>><div>&gt;work after one or two semesters; I don't think so.</div>
>><div>&gt;</div>
>><div>&gt;</div>
>><div>&gt;I'd be very interested in learning about how your project is
>>going, or if</div>
>><div>&gt;you come across opinion or information which runs contrary to my
>>spoutings</div>
>><div>&gt;above...</div>
>><div>&gt;</div>
>><div>&gt;Cheers!</div>
>><div>&gt;</div>
>><div>&gt;Gary Handman</div>
>><div>&gt;Director</div>
>><div>&gt;Media Resources Center</div>
>><div>&gt;Moffitt Library</div>
>><div>&gt;UC Berkeley, CA 94720-6000</div>
>><div>&gt;510-643-8566</div>
>><div>&gt;ghandman@library.berkeley.edu</div>
>><div>&gt;<a href="http://www.lib.berkeley.edu/MRC"
>>EUDORA=AUTOURL>http://www.lib.berkeley.edu/MRC</a></div>
>><div>&gt;</div>
>><div>&gt;&quot;You are looking into the mind of home video.&nbsp; It is
>>innocent, it is aimless,</div>
>><div>&gt;it is determined, it is real&quot; --Don DeLillo,
>>Underworld</div>
>>&gt;
>><br>
>>
>>________________________________________ <br>
>>Rick E. Provine <br>
>>Director for Media and Electronic Center Services <br>
>>Clemons Library||University of Virginia <br>
>>VOICE 804.924.8814 <br>
>>FAX 804.924.7468 <br>
>>CELL 804.981.5541 <br>
>>provine@virginia.edu <br>
>><font color="#0000FF"><u><a
>>href="http://www.lib.virginia.edu/ecenters.html"
>>eudora="autourl">www.lib.virginia.edu/ecenters.html</a><br>
>></font></u><font
color="#000000">________________________________________<br>
>></font></html>
>>
>>--=====================_514223==_.ALT--
>
________________________________________
Rick E. Provine
Director for Media and Electronic Center Services
Clemons Library||University of Virginia
VOICE 804.924.8814
FAX 804.924.7468
CELL 804.981.5541
provine@virginia.edu
www.lib.virginia.edu/ecenters.html
________________________________________

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Content-Type: text/html; charset="us-ascii"

I think the name of the game is "good faith."  IP is not the most secure, to be sure.  But it does show a "good faith effort" to restrict use.  Password is probably better.

And I don't think that applying the broader fair use exemption is a stretch.  That's what its for..."Fair use!"  Keep in mind that the tests of fair use range from complete works being exempt (Sony v. Universal) to very tiny pieces NOT being exempt.  Fair use is determined case-by-case.  That's why there is no easy-to-follow guide for what you can do.  So use good judgement and show GOOD FAITH. 

As for the temptation to archive, I think you are right.  If you want to grow this collection, you will need permission.  But the potential for abuse doesn't make it wrong.  Only the act. 



At 08:32 AM 9/4/98 -0700, you wrote:
>Rick...ol' pal:
>
>Rick...when push comes to shove, the only expressly stated fair use of
>video (or moving image stuff in general) is face-to-face classroom
>teaching.  I guess one could apply the broader tests of FU:
>
>--purpose and character of the use--including whether use is of a
>commercial nature or is for non-profit educational purposes;
>
>--nature of the copyrighted work
>
>--Amount and substantiality of the portion used in relation to the
>copyrighted work as a whole.
>
>--the effect of the use upon the potential market for or value of the
>copyrighted work
>
>..but the fact remains that trasfer of analog to digital treads on the
>exclusive rights of the copyright holder to make derivative works.  ...that
>and, as I contended in my last mail, it's unlikely that an institution that
>goes to the trouble of digitizing clips is gonna adhere to the restricted
>retention requirements of the copyright law...  Also, although we all seem
>to be pinning our hopes to the ol' "restricted IP" gambit, I wonder how
>this rationale would hold up in court.
>
>gary
>
>
>
>>I am not so sure I completely agree with you, Gary.  Certainly there are no
>>statutes that grant this use absolutely, but if you examine the tests of fair
>>use, then I think you can make a good case.
>>
>>Of course, you need to restrict access to the materials (not available outside
>>of your domain, or password protected).  And of course, building an archive
>>without permission is also tabu...but treating the clips like other reserve
>>materials for a semester seems fine to me.
>>
>>
>>At 01:27 PM 9/3/98 -0700, Gary Handman wrote:
>>>Karen...
>>>
>>>It seems to me that there is absolutely NO leg to stand on, legally or
>>>otherwise, as far as putting up reserve viewing clips (a derivative work is
>>>a derivative work).  As we all know, the rules for the print domain are
>>>substantially different from the moving image and sound domain...in the
>>>latter case, neither the current copyright law nor the detestable CCUMC
>>>multimedia fair use guidelines (nor the abortive CONFU draft guidelines on
>>>reserves) would seem to offer even the slightest crack into which to wedge
>>>such an enterprise.
>>>
>>>The exceptions would, of course, be clips of items owned by your
>>>institution, items clearly identifiable as PD (good luck!), or stuff for
>>>which permission has been secured.
>>>
>>>At UCB, we're going to start experimenting with putting up compendia of
>>>streamed clips using stuff which we know is "safe"  and to limit these to
>>>the Berkeley.edu domain.   Don't think I'd be willing to step too far
>>>outside of these bounds at present.
>>>
>>>Even if video could be tucked into the same legal niche as print reserves,
>>>there's still the issue of retention to be faced:  in theory, print
>>>reserves are permitted because of the notion that the material is needed in
>>>short order--that use of this material has the element of spontaneity which
>>>would be shot by having to first secure permissions.  That's why keeping
>>>stuff indefinitely on reserve (or at least on reserve for multiple
>>>semesters) is a "no."  Now, just think of the work it's gonna take to edit,
>>>digitize and mount video clips.  You really gonna want to scrap all this
>>>work after one or two semesters; I don't think so.
>>>
>>>
>>>I'd be very interested in learning about how your project is going, or if
>>>you come across opinion or information which runs contrary to my spoutings
>>>above...
>>>
>>>Cheers!
>>>
>>>Gary Handman
>>>Director
>>>Media Resources Center
>>>Moffitt Library
>>>UC Berkeley, CA 94720-6000
>>>510-643-8566
>>>ghandman@library.berkeley.edu
>>>http://www.lib.berkeley.edu/MRC
>>>
>>>"You are looking into the mind of home video.  It is innocent, it is aimless,
>>>it is determined, it is real" --Don DeLillo, Underworld
>>>
>>________________________________________
>>Rick E. Provine
>>Director for Media and Electronic Center Services
>>Clemons Library||University of Virginia
>>VOICE 804.924.8814
>>FAX 804.924.7468
>>CELL 804.981.5541
>>provine@virginia.edu
>>www.lib.virginia.edu/ecenters.html
>>________________________________________
>>
>>--=====================_514223==_.ALT
>>Content-Type: text/html; charset="us-ascii"
>>
>><html><div>I am not so sure I completely agree with you, Gary.&nbsp;
>>Certainly there are no statutes that grant this use absolutely, but if
>>you examine the tests of fair use, then I think you can make a good
>>case.&nbsp; </div>
>><br>
>><div>Of course, you need to restrict access to the materials (not
>>available outside of your domain, or password protected).&nbsp; And of
>>course, building an archive without permission is also tabu...but
>>treating the clips like other reserve materials for a semester seems fine
>>to me.&nbsp; </div>
>><br>
>><br>
>><div>At 01:27 PM 9/3/98 -0700, Gary Handman wrote:</div>
>><div>&gt;Karen...</div>
>><div>&gt;</div>
>><div>&gt;It seems to me that there is absolutely NO leg to stand on,
>>legally or</div>
>><div>&gt;otherwise, as far as putting up reserve viewing clips (a
>>derivative work is</div>
>><div>&gt;a derivative work).&nbsp; As we all know, the rules for the
>>print domain are</div>
>><div>&gt;substantially different from the moving image and sound
>>domain...in the</div>
>><div>&gt;latter case, neither the current copyright law nor the
>>detestable CCUMC</div>
>><div>&gt;multimedia fair use guidelines (nor the abortive CONFU draft
>>guidelines on</div>
>><div>&gt;reserves) would seem to offer even the slightest crack into
>>which to wedge</div>
>><div>&gt;such an enterprise.</div>
>><div>&gt;</div>
>><div>&gt;The exceptions would, of course, be clips of items owned by
>>your</div>
>><div>&gt;institution, items clearly identifiable as PD (good luck!), or
>>stuff for</div>
>><div>&gt;which permission has been secured.</div>
>><div>&gt;</div>
>><div>&gt;At UCB, we're going to start experimenting with putting up
>>compendia of</div>
>><div>&gt;streamed clips using stuff which we know is
>>&quot;safe&quot;&nbsp; and to limit these to</div>
>><div>&gt;the Berkeley.edu domain.&nbsp;&nbsp; Don't think I'd be willing
>>to step too far</div>
>><div>&gt;outside of these bounds at present.</div>
>><div>&gt;</div>
>><div>&gt;Even if video could be tucked into the same legal niche as print
>>reserves,</div>
>><div>&gt;there's still the issue of retention to be faced:&nbsp; in
>>theory, print</div>
>><div>&gt;reserves are permitted because of the notion that the material
>>is needed in</div>
>><div>&gt;short order--that use of this material has the element of
>>spontaneity which</div>
>><div>&gt;would be shot by having to first secure permissions.&nbsp;
>>That's why keeping</div>
>><div>&gt;stuff indefinitely on reserve (or at least on reserve for
>>multiple</div>
>><div>&gt;semesters) is a &quot;no.&quot;&nbsp; Now, just think of the
>>work it's gonna take to edit,</div>
>><div>&gt;digitize and mount video clips.&nbsp; You really gonna want to
>>scrap all this</div>
>><div>&gt;work after one or two semesters; I don't think so.</div>
>><div>&gt;</div>
>><div>&gt;</div>
>><div>&gt;I'd be very interested in learning about how your project is
>>going, or if</div>
>><div>&gt;you come across opinion or information which runs contrary to my
>>spoutings</div>
>><div>&gt;above...</div>
>><div>&gt;</div>
>><div>&gt;Cheers!</div>
>><div>&gt;</div>
>><div>&gt;Gary Handman</div>
>><div>&gt;Director</div>
>><div>&gt;Media Resources Center</div>
>><div>&gt;Moffitt Library</div>
>><div>&gt;UC Berkeley, CA 94720-6000</div>
>><div>&gt;510-643-8566</div>
>><div>&gt;ghandman@library.berkeley.edu</div>
>><div>&gt;<a href="http://www.lib.berkeley.edu/MRC"
>>EUDORA=AUTOURL>http://www.lib.berkeley.edu/MRC</a></div>
>><div>&gt;</div>
>><div>&gt;&quot;You are looking into the mind of home video.&nbsp; It is
>>innocent, it is aimless,</div>
>><div>&gt;it is determined, it is real&quot; --Don DeLillo,
>>Underworld</div>
>>&gt;
>><br>
>>
>>________________________________________ <br>
>>Rick E. Provine <br>
>>Director for Media and Electronic Center Services <br>
>>Clemons Library||University of Virginia <br>
>>VOICE 804.924.8814 <br>
>>FAX 804.924.7468 <br>
>>CELL 804.981.5541 <br>
>>provine@virginia.edu <br>
>><font color="#0000FF"><u><a
>>href="http://www.lib.virginia.edu/ecenters.html"
>>eudora="autourl">www.lib.virginia.edu/ecenters.html</a><br>
>></font></u><font color="#000000">________________________________________<br>
>></font></html>
>>
>>--=====================_514223==_.ALT--
>
________________________________________
Rick E. Provine
Director for Media and Electronic Center Services
Clemons Library||University of Virginia
VOICE 804.924.8814
FAX 804.924.7468
CELL 804.981.5541
provine@virginia.edu
www.lib.virginia.edu/ecenters.html
________________________________________
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