You act as if there was in fact no case law on these issues when there is in fact a great deal. In my view the closest case on point is the Kinko's case. The court dissected the four factors at some length. The fact that Kinko's was in fact for profit was a strike against them, but the court also ruled that using large portions of copyrighted works that went to the" of the work was a clear knock out Here is the "money" quote "The mere fact that the portions copied by Kinko’s were those that the college professor singled out as being critical parts of the books demonstrates that even if not “the heart of” the works in question, the parts copied were substantial in quality. Thus, with regard to this factor, the court finds for the publishers because Kinko’s is copying substantial portions of the work" I am shocked shocked that professors wanted to use too large a portion of a work for their class.. So if you could not legally reproduce articles for a course pack what case would say would allow you to stream an entire film to a group of students that a professor requests? I am pretty stunned that this has even become a question of debate, though again since an increasing number of schools seem to be doing just that . Is it your view that copying and distributing course packs is legal if done directly by the institution instead of an outside private entity and if so please cite any law on that? Basically there tends to be very little direct case law for universities directly, Kinko's is one of the few. However in general the case law on "fair use" takes a very dim view of using large portions, let alone entire works without the permission of the rights holder. Also it is another smoke screen to claim all factors are "equal", in theory they are but that does not mean if you completely violate just one or two it is OK if you don't violate the others. By such a theory I could for instance takea famous copyrighted image from a book or newspaper (say the Obama Hope Photo) and put it on a T shirt and sell it , I would only be violating two of the 4 factors so no problem? Or a non profit could make copies of the same and give them away so hey now it only violates one factor so it must be legal right?.
I have had for too much experience of late of institutions wholesale streaming entire works so you will excuse me if I just don't have any trust in the "best practices " guidelines. I am not unsympathetic to the idea that rights holders have in some cases had an overly narrow view of "fair use" and especially "face to face" teaching but I make no secret of the fact that I consider most of "best practices" a fraud to justify using entire works without paying by merely throwing out some deliberately vague concept of what an instructor says he or she might need. If I were not aware of a growing number of major academic institutions streaming hundreds if not thousands of complete films routinely I might feel otherwise. I should say that I do not believe most people on this list believe this but I know for a fact many of you are increasingly being pressured to in fact digitize and stream whatever a professor wants which is often entire works. I receive emails off list from librarians often distraught that they are being asked to do things they know to be illegal and I do not believe the "best practices" will provide them any help but would be delighted if others feel that in fact it would help stop the practice of wholesale streaming of materials because it is in fact easier and cheaper than licensing them. On Mon, Feb 6, 2012 at 4:57 PM, Simpkins, Terry W. <tsimp...@middlebury.edu> wrote: > I find this very interesting: "The core issue remains the claim that in > essence 'fair use' is whatever the institution decides it is and that any use > they accept is 'transformative'." Who has ever claimed this? The new > guidelines certainly don't. These guidelines are not legislation; they are > advice from one or two professional group to members of that profession > charged with making intelligent risk/reward decisions, and who are trying to > manage risks related to using copyrighted materials in an academic context. > > Ms. Rosner frequently laments about the issue of "how much" of a film may be > legally used under fair use, and implies that the law prohibits using the > entire work under any conceivable fair use scenario. This is simply not > true, and, as Michael Brewer points out, list readers should not be misled by > one member repeating an erroneous assertion over and over, hoping that the > repetition will make it true. The fair use exemption clearly states that the > amount used is one factor out of four. Not the most important factor, not > the only factor, not a factor that trumps all other factors, not a factor > that needs to be determined in advance of proceeding farther with the other > factors. One equal factor out of four. And the ARL guidelines merely state > that using the entire work is not an automatic disqualification from fair use > consideration. See the FAQ here: > http://www.centerforsocialmedia.org/libraries/faq-librarians#wholething. > It's really a rather non-controversial assertion if you read the text of the > law. > > Terry > > Terry Simpkins > Director, Research and Collection Services > Library & Information Services > Middlebury College, Middlebury, VT 05753 > (802) 443-5045 > > > -----Original Message----- > From: videolib-boun...@lists.berkeley.edu > [mailto:videolib-boun...@lists.berkeley.edu] On Behalf Of Jessica Rosner > Sent: Monday, February 06, 2012 3:51 PM > To: videolib@lists.berkeley.edu > Subject: Re: [Videolib] ACRL Best Practices > > I am afraid the focus on feature films is my fault Bob. I will be > honest, I focus on features because to me it makes it even clearer > that the people pushing the "best practices" and other similar views > on "fair use" (and that there is no limit to amount you can use) often > want to justify streaming of entire films without any regard to > rights and use. The term "educational " film really does not have any > legal meaning however in the case of the TEACH ACT ( which I believe > is the only area where this applies) films made exclusively for > instruction are an exempt class but then so are all fiction films. In > terms of the financial damage one could argue that the streaming a > more costly "educational" film might be more damaging than a standard > feature film, but I rather doubt it. The core issue remains the claim > that in essence "fair use" is whatever the institution decides it is > and that any use they accept is "tranformative" . > > On Mon, Feb 6, 2012 at 3:28 PM, Bob Norris <b...@filmideas.com> wrote: >> This may seem like a naive question, but is all the focus on theatrical >> because it is assumed that a program from an educational distributor would >> not qualify under fair use because of the adverse affect upon the potential >> market for or value of the copyrighted work? And if this is true, would that >> extend to segments of a program if the distributors sells digital segments >> of the program? >> >> I think Film Ideas would be willing to agree its license agreements shall >> not supersede the rights already granted to users under copyright law. >> Although, if we cannot agree on what the law states, I'm not sure how much >> weight that statement carries. >> >> Bob Norris >> Managing Director >> Film Ideas, Inc. >> Phone: (847) 419-0255 >> Email: b...@filmideas.com > > 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. -- Jessica Rosner Media Consultant 224-545-3897 (cell) 212-627-1785 (land line) jessicapros...@gmail.com 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.
