Re: [Videolib] Is Streaming transformative?
Replying to Jessica: Judge Evans in Georgia State did NOT set a bright line. She said that her rule (10% or less of a book with 10 or fewer chapters, 1 chapter of a book with more chapters) defined a distinctly small, i.e. safe amount. An argument could clearly be made that 12% or 15% was needed in a particular case. She balanced this with other factors, so that in one instance she found a distinctly large amount of copying to be infringing, because it did not in her opinion affect the market (there was no service providing licensing for excerpts from that work, I think). Also, I reread what I wrote and I admire Farhad for figuring out the following sentence: What [Judge Marshall] said was that the UCLA defense that using creative works in an educational context was interesting enough that the nature of the work factor did not in her opinion weigh in favor of either party. The UCLA defense, obviously, was that using creative works in an educational context *is transformative,* and she said that was an interesting argument. Judy 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.
Re: [Videolib] Is Streaming transformative?
Yikes, I'm a mess. Evans said the distinctly large amount was NOT infringing, because the lack of available licensing for that work weighed in favor of GSU. Judy 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.
Re: [Videolib] Is Streaming transformative?
Judith, I think the 10% statement was pretty clear in that the judge basically said using 2 chapters in a 10 chapter book would be infringing and almost forgotten here is she did find 5 of the 99 claims to be infringing ( another 50% were tossed for reasons of standing and use not fair use) and at least one of these five involved material that was less than 10% but which the judge determined was the heart of the work The clear point being this case in no way shape or form can be used to claim courts support digitizing and streaming entire films. Could one maybe argue that there is some work where 12% might make the cut? sure but she is drawing a pretty clear line and this of course is the part of the case that upset the educational community which itself referred to it is a bright line. As for the 2nd part about using much larger if not entire works if they are not available to be licensed, this is where among others I think the judge went off the deep end and is likely to be struck down on appeal. I don't see under any law that the courts can say to a rights holder if you don't make your material in a format that schools want to use then they can do it themselves. In film terms many independent directors are highly protective of their work and just because they don't offer their work for streaming is hardly a reason the courts can allow someone to do it anyway. It will also be be very interesting to see how the judges decision to not consider transformative use will play out. On Thu, May 2, 2013 at 8:39 AM, Shoaf,Judith P jsh...@ufl.edu wrote: Yikes, I’m a mess. Evans said the distinctly large amount was NOT infringing, because the lack of available licensing for that work weighed in favor of GSU. ** ** Judy ** ** 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.
Re: [Videolib] Is Streaming transformative?
Jessica said: As for the 2nd part about using much larger if not entire works if they are not available to be licensed, this is where among others I think the judge went off the deep end and is likely to be struck down on appeal. I agree this is quite a radical argument. She implied that to say there is market damage the publisher has to show that it are actually making money from the material in question, i.e. that this material is on the market. I kind of like that, but it seems circular: if schools can copy limited amounts as fair use, then how can one develop a market to license those amounts? That is to say, fair use could replace whole segments of potential markets. It will be interesting to follow the case through the courts. Judy 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.
Re: [Videolib] Is Streaming transformative?
OOPS typo on my part. I meant to say 50% of the claims were tossed not ANOTHER 50%. The judge only considered 48 of the 99 claims to see if they qualified for fair use the other 51 were disregarded either because it was not clear the plaintiffs represented the owners or that there was no evidence they were viewed. This means 10% of the material she actually examined she did find violated fair use. Does not seem that high but hardly nothing for such a sweeping decision. The real issue in this thread for me though is the nutty claim by the presenter in the webinar that somehow this case could be used as backing the streaming of an entire work particularly when GSU which HAD posted entire books quickly took them down when sued and makes no claim that they could ever do this in their case. On Thu, May 2, 2013 at 10:47 AM, Jessica Rosner maddux2...@gmail.comwrote: Judith, I think the 10% statement was pretty clear in that the judge basically said using 2 chapters in a 10 chapter book would be infringing and almost forgotten here is she did find 5 of the 99 claims to be infringing ( another 50% were tossed for reasons of standing and use not fair use) and at least one of these five involved material that was less than 10% but which the judge determined was the heart of the work The clear point being this case in no way shape or form can be used to claim courts support digitizing and streaming entire films. Could one maybe argue that there is some work where 12% might make the cut? sure but she is drawing a pretty clear line and this of course is the part of the case that upset the educational community which itself referred to it is a bright line. As for the 2nd part about using much larger if not entire works if they are not available to be licensed, this is where among others I think the judge went off the deep end and is likely to be struck down on appeal. I don't see under any law that the courts can say to a rights holder if you don't make your material in a format that schools want to use then they can do it themselves. In film terms many independent directors are highly protective of their work and just because they don't offer their work for streaming is hardly a reason the courts can allow someone to do it anyway. It will also be be very interesting to see how the judges decision to not consider transformative use will play out. On Thu, May 2, 2013 at 8:39 AM, Shoaf,Judith P jsh...@ufl.edu wrote: Yikes, I’m a mess. Evans said the distinctly large amount was NOT infringing, because the lack of available licensing for that work weighed in favor of GSU. ** ** Judy ** ** 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.
Re: [Videolib] Is Streaming transformative?
Jessica, I believe that the webinar presenter was not relying on the GSU case for the question of streaming an entire video, but on Judge Marshall's opinion in the UCLA case. The defendants argued that streaming the video was time-shifting (as in the Sony Betamax case) of a classroom viewing (allowed under Section 110). She said that was a good argument. Since Section 110 is also pretty specific about excluding this type of streamed dramatic video in more than reasonable and limited portions, the plaintiffs could certainly make a strong counter-argument. However, this case can't be appealed (because it was dismissed on other grounds and Ambrose/A.I.M.E. does not seem to be able to bring a meaningful suit). So it will take another case to determine whether the time-shifting argument is stronger than the reasonable AND LIMITED portion argument. Judy 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.
Re: [Videolib] Is Streaming transformative?
The irony of that case is that Ambrose AIME simply did not have a fraction of financial resources of the non profit educational institution UCLA and none of the big bucks rights holders who would have had no issue re standing would get involved. The webinar seemed such a mish mosh that I could not tell for sure what alleged legal case was for what argument On Thu, May 2, 2013 at 11:58 AM, Shoaf,Judith P jsh...@ufl.edu wrote: Jessica, I believe that the webinar presenter was not relying on the GSU case for the question of streaming an entire video, but on Judge Marshall’s opinion in the UCLA case. The defendants argued that streaming the video was time-shifting (as in the Sony Betamax case) of a classroom viewing (allowed under Section 110). She said that was a good argument. ** ** Since Section 110 is also pretty specific about excluding this type of streamed dramatic video in more than “reasonable and limited portions,” the plaintiffs could certainly make a strong counter-argument. ** ** However, this case can’t be appealed (because it was dismissed on other grounds and Ambrose/A.I.M.E. does not seem to be able to bring a meaningful suit). So it will take another case to determine whether the time-shifting argument is stronger than the “reasonable AND LIMITED portion” argument. * *** ** ** Judy 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.
Re: [Videolib] Is Streaming transformative?
I participated in this webinar and feel I must clarify what was presented by Linda Enghagen who is an attorney and Professor at the University of Massachuesetts at Amherst. Following are actual excerpts from the materials she provided as related to the points Farhad made: 1. The judge ruled that the purchase of videos that included public performance rights was sufficient to permit UCLA to lawfully digitize, reformat and stream those videos via a secure system to students enrolled in specific courses. At the same time, the judge acknowledged that no court has ruled on whether this same practice is lawful under fair use. In other words, this case does not resolve that question. 2. Because the case included allegations of violations of both federal (copyright infringement) and state law (breach of contract) laws, the judge had to determine whether the preemption doctrine applied. The judge concluded that it did. Therefore, the only claim considered was that based on copyright infringement. All the state based claims such as breach of contract were dismissed. While there is a degree to which this is a highly technical point in the case, it possesses the potential of being highly significant. It suggests the answer to an as of yet unresolved question of law which is: may a copyright owner put terms and conditions on the sale of copyright protected works that limit the rights of a user under fair use? This ruling suggests (but does not rule) that copyright owners cannot restrict fair use rights of lawful users by imposing overly restrictive terms and conditions on the sale. 3. One of the rulings in the case against Georgia State University was that the 1976 agreement on guidelines for classroom copying are not legally binding and are not an appropriate standard for determining what does and does not qualify as a fair use. 4. Also in the GSU case, the judge ruled that repeated use of the same work is permitted by copyright law and does not violate fair use. This case involved non-fiction books only and has no bearing on video works. I did not feel as though I was given permission after this presentation to digitize DVD's for streaming with obtaining the rights to do so. I could apply fair use principles and DMCA to digitize clips for educational purposes, but not the full DVD. The judge in the UCLA case felt they had purchased the rights with having bought public performance rights. In this case, they purchased rights, just not what Ambrose thought was the appropriate rights. I still ask for the digital rights. Shelia D. Owens Distance Education 200 Brister Hall (901)678-2236 Office (901) 678-5112 Fax www.memphis.edu/ecampus From: Moshiri, Farhad [mailto:mosh...@uiwtx.edu] Sent: Wednesday, May 01, 2013 9:18 AM To: videolib@lists.berkeley.edu Subject: [Videolib] Is Streaming transformative? Dear Colleagues, Yesterday, I attended a webinar on recent copyright court cases in which the presenter stated several points that confused me a lot since they were completely the opposite of what I've learned up to this day. I need your help to clarify these issues. 1. The presenter stated that in the case of UCLA vs. Ambrose, the judge ruled that changing the format of DVDs purchased legally with PPR to streaming video at UCLA is considered Transformative and so it falls into Fair Use ! As far as I know, this case was dismissed due to legal technicalities based on UCLA being a state run public institution and the ruling did not address the change of format issue. In addition, I don't understand what PPR has to do with change of format? Am I wrong? 2. The presenter stated that copyright law, since it is a federal law, prevails over contract law which is under state law. So, digitizing books or transferring DVDs into streaming is fair use even if the contract with the publisher accepted by the consumer states otherwise! 3. The presenter stated that the court said the 1976 Copyright Guidelines are not legally binding for standards of fair use! 4. The presenter stated that using the same material (journal article, book chapters, etc.) for several consecutive semesters on reserves is ok and falls into fair use! I've learned that one cannot change the format of videos without the copyright holder permission. The only exception according to DMCA would be short excerpts not the whole programs. Also, I have learned that if I accept or sign a contract with the publisher, I have to abide to its contents. Thanks, Farhad Moshiri Audiovisual Librarian University of the Incarnate Word San Antonio, TX This email and any files transmitted with it may be confidential or contain privileged information and are intended solely for the use of the individual or entity to which they are addressed. If you are not the intended recipient, please be advised that you have received this email in
Re: [Videolib] Is Streaming transformative?
Thanks for the info but it is outrageous that a lawyer would use a case where there is NO decision to claim any kind of ruling The 2nd part about a contract not being able to limit rights otherwise granted by fair use is particularly nuts. There are thousands probably millions of contracts that restrict rights otherwise granted. That is what contracts do. Now one can argue about the nature of Ambrose contract but the idea that an owner can not make and enforce a contract if it were clearly spelled out is simply absurd. I do sincerely appreciate your nuanced approach and large rights holders like MPAA brought much of this on themselves by trying to restrict fair use through the DMCA and other similar actions but trust me it is small rights holders and distributors that are being socked by institutions who do in fact digitize and stream entire works ( among other things). On Thu, May 2, 2013 at 1:21 PM, Shelia D Owens (sowens) sow...@memphis.eduwrote: I participated in this webinar and feel I must clarify what was presented by Linda Enghagen who is an attorney and Professor at the University of Massachuesetts at Amherst. Following are actual excerpts from the materials she provided as related to the points Farhad made: ** ** **1. **The judge ruled that the purchase of videos that included “public performance rights” was sufficient to permit UCLA to lawfully digitize, reformat and stream those videos via a secure system to students enrolled in specific courses. At the same time, the judge acknowledged that no court has ruled on whether this same practice is lawful under fair use. In other words, this case does not resolve that question. **2. **Because the case included allegations of violations of both federal (copyright infringement) and state law (breach of contract) laws, the judge had to determine whether the “preemption doctrine” applied. The judge concluded that it did. Therefore, the only claim considered was that based on copyright infringement. All the state based claims such as breach of contract were dismissed. While there is a degree to which this is a highly technical point in the case, it possesses the potential of being highly significant. It suggests the answer to an as of yet unresolved question of law which is: may a copyright owner put terms and conditions on the sale of copyright protected works that limit the rights of a user under fair use? This ruling suggests (but does not rule) that copyright owners cannot restrict fair use rights of lawful users by imposing overly restrictive terms and conditions on the sale. **3. **One of the rulings in the case against Georgia State University was that the 1976 agreement on guidelines for classroom copying are not legally binding and are not an appropriate standard for determining what does and does not qualify as a fair use. **4. **Also in the GSU case, the judge ruled that repeated use of the same work is permitted by copyright law and does not violate fair use. This case involved non-fiction books only and has no bearing on video works. ** ** I did not feel as though I was given “permission” after this presentation to digitize DVD’s for streaming with obtaining the rights to do so. I could apply fair use principles and DMCA to digitize clips for educational purposes, but not the full DVD. The judge in the UCLA case felt they had purchased the rights with having bought public performance rights. In this case, they purchased rights, just not what Ambrose thought was the appropriate rights. I still ask for the digital rights. ** ** Shelia D. Owens Distance Education 200 Brister Hall (901)678-2236 Office (901) 678-5112 Fax www.memphis.edu/ecampus ** ** *From:* Moshiri, Farhad [mailto:mosh...@uiwtx.edu] *Sent:* Wednesday, May 01, 2013 9:18 AM *To:* videolib@lists.berkeley.edu *Subject:* [Videolib] Is Streaming transformative? ** ** Dear Colleagues, ** ** Yesterday, I attended a webinar on recent copyright court cases in which the presenter stated several points that confused me a lot since they were completely the opposite of what I’ve learned up to this day. I need your help to clarify these issues. ** ** **1. **The presenter stated that in the case of UCLA vs. Ambrose, the judge ruled that changing the format of DVDs purchased legally with PPR to streaming video at UCLA is considered “Transformative” and so it falls into “Fair Use” ! As far as I know, this case was dismissed due to legal technicalities based on UCLA being a state run public institution and the ruling did not address the change of format issue. In addition, I don’t understand what PPR has to do with change of format? Am I wrong? ** ** **2. **The presenter stated that copyright law, since it is a federal law, prevails over contract law which is under state law. So, digitizing books
Re: [Videolib] Is Streaming transformative?
Thanks, Sheila. This clarifies things for me, especially what the issues are in Point 2. Judy From: videolib-boun...@lists.berkeley.edu [mailto:videolib-boun...@lists.berkeley.edu] On Behalf Of Shelia D Owens (sowens) Sent: Thursday, May 02, 2013 1:22 PM To: videolib@lists.berkeley.edu Subject: Re: [Videolib] Is Streaming transformative? I participated in this webinar and feel I must clarify what was presented by Linda Enghagen who is an attorney and Professor at the University of Massachuesetts at Amherst. Following are actual excerpts from the materials she provided as related to the points Farhad made: 1. The judge ruled that the purchase of videos that included public performance rights was sufficient to permit UCLA to lawfully digitize, reformat and stream those videos via a secure system to students enrolled in specific courses. At the same time, the judge acknowledged that no court has ruled on whether this same practice is lawful under fair use. In other words, this case does not resolve that question. 2. Because the case included allegations of violations of both federal (copyright infringement) and state law (breach of contract) laws, the judge had to determine whether the preemption doctrine applied. The judge concluded that it did. Therefore, the only claim considered was that based on copyright infringement. All the state based claims such as breach of contract were dismissed. While there is a degree to which this is a highly technical point in the case, it possesses the potential of being highly significant. It suggests the answer to an as of yet unresolved question of law which is: may a copyright owner put terms and conditions on the sale of copyright protected works that limit the rights of a user under fair use? This ruling suggests (but does not rule) that copyright owners cannot restrict fair use rights of lawful users by imposing overly restrictive terms and conditions on the sale. 3. One of the rulings in the case against Georgia State University was that the 1976 agreement on guidelines for classroom copying are not legally binding and are not an appropriate standard for determining what does and does not qualify as a fair use. 4. Also in the GSU case, the judge ruled that repeated use of the same work is permitted by copyright law and does not violate fair use. This case involved non-fiction books only and has no bearing on video works. I did not feel as though I was given permission after this presentation to digitize DVD's for streaming with obtaining the rights to do so. I could apply fair use principles and DMCA to digitize clips for educational purposes, but not the full DVD. The judge in the UCLA case felt they had purchased the rights with having bought public performance rights. In this case, they purchased rights, just not what Ambrose thought was the appropriate rights. I still ask for the digital rights. Shelia D. Owens Distance Education 200 Brister Hall (901)678-2236 Office (901) 678-5112 Fax www.memphis.edu/ecampushttp://www.memphis.edu/ecampus From: Moshiri, Farhad [mailto:mosh...@uiwtx.edu] Sent: Wednesday, May 01, 2013 9:18 AM To: videolib@lists.berkeley.edu Subject: [Videolib] Is Streaming transformative? Dear Colleagues, Yesterday, I attended a webinar on recent copyright court cases in which the presenter stated several points that confused me a lot since they were completely the opposite of what I've learned up to this day. I need your help to clarify these issues. 1. The presenter stated that in the case of UCLA vs. Ambrose, the judge ruled that changing the format of DVDs purchased legally with PPR to streaming video at UCLA is considered Transformative and so it falls into Fair Use ! As far as I know, this case was dismissed due to legal technicalities based on UCLA being a state run public institution and the ruling did not address the change of format issue. In addition, I don't understand what PPR has to do with change of format? Am I wrong? 2. The presenter stated that copyright law, since it is a federal law, prevails over contract law which is under state law. So, digitizing books or transferring DVDs into streaming is fair use even if the contract with the publisher accepted by the consumer states otherwise! 3. The presenter stated that the court said the 1976 Copyright Guidelines are not legally binding for standards of fair use! 4. The presenter stated that using the same material (journal article, book chapters, etc.) for several consecutive semesters on reserves is ok and falls into fair use! I've learned that one cannot change the format of videos without the copyright holder permission. The only exception according to DMCA would be short excerpts not the whole programs. Also, I have learned that if I accept or sign a contract with the publisher, I have to abide to its contents. Thanks, Farhad Moshiri Audiovisual
Re: [Videolib] Is Streaming transformative?
Ummm, Jessica, I think one of the nuances is that the question of restricting rights is more complicated than that. It would be based on the logic that Federal law (copyright) preempts State law (contracts) in how rights are allocated. Since Federal law established fair use, it may well be argued that state contracts have no right to abrogate that. -- Norman Howden, Ph.D. Assistant Dean, Educational Resources El Centro College 214-860-2176 nor...@dcccd.edu Please visit our website at: http://www.elcentrocollege.edu/library/ It may plausibly be urged that the shape of a culture - its mores, evaluations, family organizations, eating habits, living patterns, pedagogical methods, institutions, forms of government, and so forth - arise from the economic necessities of its technology. - Heinlein, 1940 On 5/2/2013 at 12:36 PM, in message cacre6m8t8g0scnw_maixn5cbmsehbqh9yrzdgv3prm7cnvf...@mail.gmail.com, Jessica Rosner maddux2...@gmail.com wrote: Thanks for the info but it is outrageous that a lawyer would use a case where there is NO decision to claim any kind of ruling The 2nd part about a contract not being able to limit rights otherwise granted by fair use is particularly nuts. There are thousands probably millions of contracts that restrict rights otherwise granted. That is what contracts do. Now one can argue about the nature of Ambrose contract but the idea that an owner can not make and enforce a contract if it were clearly spelled out is simply absurd. I do sincerely appreciate your nuanced approach and large rights holders like MPAA brought much of this on themselves by trying to restrict fair use through the DMCA and other similar actions but trust me it is small rights holders and distributors that are being socked by institutions who do in fact digitize and stream entire works ( among other things). On Thu, May 2, 2013 at 1:21 PM, Shelia D Owens (sowens) sow...@memphis.eduwrote: I participated in this webinar and feel I must clarify what was presented by Linda Enghagen who is an attorney and Professor at the University of Massachuesetts at Amherst. Following are actual excerpts from the materials she provided as related to the points Farhad made: ** ** **1. **The judge ruled that the purchase of videos that included “public performance rights” was sufficient to permit UCLA to lawfully digitize, reformat and stream those videos via a secure system to students enrolled in specific courses. At the same time, the judge acknowledged that no court has ruled on whether this same practice is lawful under fair use. In other words, this case does not resolve that question. **2. **Because the case included allegations of violations of both federal (copyright infringement) and state law (breach of contract) laws, the judge had to determine whether the “preemption doctrine” applied. The judge concluded that it did. Therefore, the only claim considered was that based on copyright infringement. All the state based claims such as breach of contract were dismissed. While there is a degree to which this is a highly technical point in the case, it possesses the potential of being highly significant. It suggests the answer to an as of yet unresolved question of law which is: may a copyright owner put terms and conditions on the sale of copyright protected works that limit the rights of a user under fair use? This ruling suggests (but does not rule) that copyright owners cannot restrict fair use rights of lawful users by imposing overly restrictive terms and conditions on the sale. **3. **One of the rulings in the case against Georgia State University was that the 1976 agreement on guidelines for classroom copying are not legally binding and are not an appropriate standard for determining what does and does not qualify as a fair use. **4. **Also in the GSU case, the judge ruled that repeated use of the same work is permitted by copyright law and does not violate fair use. This case involved non-fiction books only and has no bearing on video works. ** ** I did not feel as though I was given “permission” after this presentation to digitize DVD’s for streaming with obtaining the rights to do so. I could apply fair use principles and DMCA to digitize clips for educational purposes, but not the full DVD. The judge in the UCLA case felt they had purchased the rights with having bought public performance rights. In this case, they purchased rights, just not what Ambrose thought was the appropriate rights. I still ask for the digital rights. ** ** Shelia D. Owens Distance Education 200 Brister Hall (901)678-2236 Office (901) 678-5112 Fax www.memphis.edu/ecampus ** ** *From:* Moshiri, Farhad [mailto:mosh...@uiwtx.edu] *Sent:* Wednesday, May 01, 2013 9:18 AM *To:* videolib@lists.berkeley.edu *Subject:* [Videolib] Is Streaming
Re: [Videolib] Is Streaming transformative?
Um not exactly. First this was not a state contract to the best of my knowledge Ambrose's legal HQ is New York so why would a transaction between a NY company and a CA university be governed by CA law? however that is irrelevent anyway as ANY contract is enforceable even if it contradicts state OR Federal law ( unless it involves an illegal action) because that is what contracts do. They spell out conditions which often go way beyond what the law grants. Going back to evil Paypal ( my least favorite company) In order to join you must give up rights of consumer protection which exist in BOTH Federal and State law and yet the contract trumps BOTH. Again it is routine for contracts to restrict all sorts of rights that one would otherwise have under both State and Federal law particularly in financial transactions but contracts nearly always prevail unless the contract is ruled to be unclear or unreasonable. On Thu, May 2, 2013 at 2:08 PM, Norman Howden nor...@dcccd.edu wrote: Ummm, Jessica, I think one of the nuances is that the question of restricting rights is more complicated than that. It would be based on the logic that Federal law (copyright) preempts State law (contracts) in how rights are allocated. Since Federal law established fair use, it may well be argued that state contracts have no right to abrogate that. -- Norman Howden, Ph.D. Assistant Dean, Educational Resources El Centro College 214-860-2176 nor...@dcccd.edu Please visit our website at: http://www.elcentrocollege.edu/library/ It may plausibly be urged that the shape of a culture - its mores, evaluations, family organizations, eating habits, living patterns, pedagogical methods, institutions, forms of government, and so forth - arise from the economic necessities of its technology. - Heinlein, 1940 On 5/2/2013 at 12:36 PM, in message cacre6m8t8g0scnw_maixn5cbmsehbqh9yrzdgv3prm7cnvf...@mail.gmail.com, Jessica Rosner maddux2...@gmail.com wrote: Thanks for the info but it is outrageous that a lawyer would use a case where there is NO decision to claim any kind of ruling The 2nd part about a contract not being able to limit rights otherwise granted by fair use is particularly nuts. There are thousands probably millions of contracts that restrict rights otherwise granted. That is what contracts do. Now one can argue about the nature of Ambrose contract but the idea that an owner can not make and enforce a contract if it were clearly spelled out is simply absurd. I do sincerely appreciate your nuanced approach and large rights holders like MPAA brought much of this on themselves by trying to restrict fair use through the DMCA and other similar actions but trust me it is small rights holders and distributors that are being socked by institutions who do in fact digitize and stream entire works ( among other things). On Thu, May 2, 2013 at 1:21 PM, Shelia D Owens (sowens) sow...@memphis.eduwrote: I participated in this webinar and feel I must clarify what was presented by Linda Enghagen who is an attorney and Professor at the University of Massachuesetts at Amherst. Following are actual excerpts from the materials she provided as related to the points Farhad made: ** ** **1. **The judge ruled that the purchase of videos that included “public performance rights” was sufficient to permit UCLA to lawfully digitize, reformat and stream those videos via a secure system to students enrolled in specific courses. At the same time, the judge acknowledged that no court has ruled on whether this same practice is lawful under fair use. In other words, this case does not resolve that question. **2. **Because the case included allegations of violations of both federal (copyright infringement) and state law (breach of contract) laws, the judge had to determine whether the “preemption doctrine” applied. The judge concluded that it did. Therefore, the only claim considered was that based on copyright infringement. All the state based claims such as breach of contract were dismissed. While there is a degree to which this is a highly technical point in the case, it possesses the potential of being highly significant. It suggests the answer to an as of yet unresolved question of law which is: may a copyright owner put terms and conditions on the sale of copyright protected works that limit the rights of a user under fair use? This ruling suggests (but does not rule) that copyright owners cannot restrict fair use rights of lawful users by imposing overly restrictive terms and conditions on the sale. **3. **One of the rulings in the case against Georgia State University was that the 1976 agreement on guidelines for classroom copying are not legally binding and are not an appropriate standard for determining what does and does not qualify as a fair use. **4.
Re: [Videolib] Is Streaming transformative?
The UCLA case was dismissed, twice. Until some valid plaintiff names a valid defendant (as for example in the Georgia State case, which involved books scanned and put on line), there will be no proper decision about fair use in the case or opportunity to appeal that decision. The second time A.I.M.E. brought their case, Judge Consuela Marshall decided to discuss fair use even though the case was not a valid one and was dismissed on other grounds. What she said was that the UCLA defense that using creative works in an educational context was interesting enough that the nature of the work factor did not in her opinion weigh in favor of either party. So that's the transformative bit. As for streaming the entire picture even though a stream was actually on the market (factors 3 and 4), she liked the UCLA argument that this could be considered a form of time shifting allowing students to attend a classroom screening at a different time, and she said that since classroom use is valued over market impact that factor even counts in favor of UCLA. I don't think she brought in DMCA or TEACH at all. The federal law trumps state contracts thing is there in her decision, but I don't know enough about the law to really grasp it. Kevin Smith of Duke says It seems clear that an unambiguous license would have overcome qualified immunity in this case. http://blogs.library.duke.edu/scholcomm/2012/11/26/another-fair-use-victory-for-libraries/ As for the 1976 Guidelines, Judge Evans in the Georgia State discussed them. She said that they are MINIMUM standards for amounts etc.,-that is, the amount that is distinctly small and completely safe, not a maximum such that if it is exceeded the use is infringing. I have been interested by the lack of discussion of the actual act of digitizing hard media, in the recent cases. The main case that really discusses this is HathiTrust, where the existence of unauthorized scans of copyright texts on the trust's servers was the big complaint; the judge in that case found the scanning of the books wholly justified because of the uses to which the text was being put (screen readers, search engines). Judy Shoaf 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.
Re: [Videolib] Is Streaming transformative?
This person is so breathtakingly wrong it is hard to know where to start. Judith responded to some of it, but lets for a moment totally ignore the totally wrong assertions on copyright and go to the unbelievable claim that Federal Law trumps contract law WTF?? Really you mean that contract Paypall forced me to sign to give up all my rights as a consumer to complain to my CC or bring a case against them was not valid? Or ALL the times you sign and agree to a whole variety of issues to access web sites or other things? Unless someone requires to sign something that involves an illegal act ( murder, buying weapons of mass destruction whatever) a contract ALWAYS trumps law Federal or local , that is why they have lawyers and contracts. If a company requires you to give up the right to use a film in a class as a term of sale than it is a CONTRACT and as long as it was clear when you purchased it ( you can't just stick it on a wrapper) and this contract not copyright law is binding ( though it would not lead to many sales) Feel free to ask ANY lawyer you know about that staggeringlyidiotic claim. As pointed out by Judith the UCLA case had zero impact and provides zero precedent as it was tossed for issues of standing The 1976 thing is equally nuts though it appears Judith traced the origin. One important note re Georgia State Case. Publishers hated it and are understandably appealing. Among more controversial elements was the judge pretty much stating that fair use did not require any transformative use but what was largely ignored by the those cheering the decision was the judge also wrote that 10% was the maximum amount of any work she believed could be covered under fair use and she made it very clear that digitizing and streaming a whole book was not fair use ( remember GSUoriginally DID have whole books up but took them down quickly when sued) so I can't imagine how any one would use that case to claim digitizing and streaming a whole film was legal. Now fair use has always been intentionally vague on any specific amount yet this judge said 10% was the bright line and for those who champion the decision you can't just take the parts you like. Personally I think it was a bad decision likely to be overturned on appeal but as someone involved in film distribution the bright line of 10% is fine with me. I can't imagine that the person making the presentation was lawyer. Do you know their background? Anyway I would certainly not want them to represent me in contract or copyright case On Wed, May 1, 2013 at 10:17 AM, Moshiri, Farhad mosh...@uiwtx.edu wrote: Dear Colleagues, ** ** Yesterday, I attended a webinar on recent copyright court cases in which the presenter stated several points that confused me a lot since they were completely the opposite of what I’ve learned up to this day. I need your help to clarify these issues. ** ** **1. **The presenter stated that in the case of UCLA vs. Ambrose, the judge ruled that changing the format of DVDs purchased legally with PPR to streaming video at UCLA is considered “Transformative” and so it falls into “Fair Use” ! As far as I know, this case was dismissed due to legal technicalities based on UCLA being a state run public institution and the ruling did not address the change of format issue. In addition, I don’t understand what PPR has to do with change of format? Am I wrong? ** ** **2. **The presenter stated that copyright law, since it is a federal law, prevails over contract law which is under state law. So, digitizing books or transferring DVDs into streaming is fair use even if the contract with the publisher accepted by the consumer states otherwise! ** ** **3. **The presenter stated that the court said the 1976 Copyright Guidelines are not legally binding for standards of fair use! ** ** **4. **The presenter stated that using the same material (journal article, book chapters, etc.) for several consecutive semesters on reserves is ok and falls into fair use! ** ** I’ve learned that one cannot change the format of videos without the copyright holder permission. The only exception according to DMCA would be short excerpts not the whole programs. Also, I have learned that if I accept or sign a contract with the publisher, I have to abide to its contents. ** ** Thanks, ** ** Farhad Moshiri Audiovisual Librarian University of the Incarnate Word San Antonio, TX -- This email and any files transmitted with it may be confidential or contain privileged information and are intended solely for the use of the individual or entity to which they are addressed. If you are not the intended recipient, please be advised that you have received this email in error and that any use, dissemination, forwarding, printing, or copying of this email and any attachments is strictly prohibited. If you have
Re: [Videolib] Is Streaming transformative?
Thank you Jessica, Judith and others who responded to my email. I was thinking did I get everything wrong for the past few years studying copyright issues? You've cleared for me that I have not yet lost my mind! Farhad From: videolib-boun...@lists.berkeley.edu [mailto:videolib-boun...@lists.berkeley.edu] On Behalf Of Jessica Rosner Sent: Wednesday, May 01, 2013 4:00 PM To: videolib@lists.berkeley.edu Subject: Re: [Videolib] Is Streaming transformative? This person is so breathtakingly wrong it is hard to know where to start. Judith responded to some of it, but lets for a moment totally ignore the totally wrong assertions on copyright and go to the unbelievable claim that Federal Law trumps contract law WTF?? Really you mean that contract Paypall forced me to sign to give up all my rights as a consumer to complain to my CC or bring a case against them was not valid? Or ALL the times you sign and agree to a whole variety of issues to access web sites or other things? Unless someone requires to sign something that involves an illegal act ( murder, buying weapons of mass destruction whatever) a contract ALWAYS trumps law Federal or local , that is why they have lawyers and contracts. If a company requires you to give up the right to use a film in a class as a term of sale than it is a CONTRACT and as long as it was clear when you purchased it ( you can't just stick it on a wrapper) and this contract not copyright law is binding ( though it would not lead to many sales) Feel free to ask ANY lawyer you know about that staggeringly idiotic claim. As pointed out by Judith the UCLA case had zero impact and provides zero precedent as it was tossed for issues of standing The 1976 thing is equally nuts though it appears Judith traced the origin. One important note re Georgia State Case. Publishers hated it and are understandably appealing. Among more controversial elements was the judge pretty much stating that fair use did not require any transformative use but what was largely ignored by the those cheering the decision was the judge also wrote that 10% was the maximum amount of any work she believed could be covered under fair use and she made it very clear that digitizing and streaming a whole book was not fair use ( remember GSU originally DID have whole books up but took them down quickly when sued) so I can't imagine how any one would use that case to claim digitizing and streaming a whole film was legal. Now fair use has always been intentionally vague on any specific amount yet this judge said 10% was the bright line and for those who champion the decision you can't just take the parts you like. Personally I think it was a bad decision likely to be overturned on appeal but as someone involved in film distribution the bright line of 10% is fine with me. I can't imagine that the person making the presentation was lawyer. Do you know their background? Anyway I would certainly not want them to represent me in contract or copyright case On Wed, May 1, 2013 at 10:17 AM, Moshiri, Farhad mosh...@uiwtx.edumailto:mosh...@uiwtx.edu wrote: Dear Colleagues, Yesterday, I attended a webinar on recent copyright court cases in which the presenter stated several points that confused me a lot since they were completely the opposite of what I've learned up to this day. I need your help to clarify these issues. 1. The presenter stated that in the case of UCLA vs. Ambrose, the judge ruled that changing the format of DVDs purchased legally with PPR to streaming video at UCLA is considered Transformative and so it falls into Fair Use ! As far as I know, this case was dismissed due to legal technicalities based on UCLA being a state run public institution and the ruling did not address the change of format issue. In addition, I don't understand what PPR has to do with change of format? Am I wrong? 2. The presenter stated that copyright law, since it is a federal law, prevails over contract law which is under state law. So, digitizing books or transferring DVDs into streaming is fair use even if the contract with the publisher accepted by the consumer states otherwise! 3. The presenter stated that the court said the 1976 Copyright Guidelines are not legally binding for standards of fair use! 4. The presenter stated that using the same material (journal article, book chapters, etc.) for several consecutive semesters on reserves is ok and falls into fair use! I've learned that one cannot change the format of videos without the copyright holder permission. The only exception according to DMCA would be short excerpts not the whole programs. Also, I have learned that if I accept or sign a contract with the publisher, I have to abide to its contents. Thanks, Farhad Moshiri Audiovisual Librarian University of the Incarnate Word San Antonio, TX This email and any files transmitted with it may be confidential
