Re: [Videolib] Is Streaming transformative?

2013-05-02 Thread Shoaf,Judith P
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?

2013-05-02 Thread Shoaf,Judith P
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?

2013-05-02 Thread Jessica Rosner
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?

2013-05-02 Thread Shoaf,Judith P
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?

2013-05-02 Thread Jessica Rosner
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?

2013-05-02 Thread Shoaf,Judith P
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?

2013-05-02 Thread Jessica Rosner
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?

2013-05-02 Thread Shelia D Owens (sowens)
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?

2013-05-02 Thread Jessica Rosner
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?

2013-05-02 Thread Shoaf,Judith P
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?

2013-05-02 Thread Norman Howden
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?

2013-05-02 Thread Jessica Rosner
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?

2013-05-01 Thread Shoaf,Judith P
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?

2013-05-01 Thread Jessica Rosner
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  

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Re: [Videolib] Is Streaming transformative?

2013-05-01 Thread Moshiri, Farhad
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