Ms. Rosner,
You are correct - what I listed is not in Section 108, because section 108 does
not discuss "fair use." It discusses preservation reformatting. The ARL code
is about fair use, which is found in Section 107, not about preservation
reformatting (Section 108). Nor is it about the first sale doctrine, nor about
how fast one can drive on the highway, nor about what foods you should eat. It
is about fair use. Furthermore, section 108 specifically states that nothing
in that section (i.e. 108) specifically affects the right of fair use as found
in section 107, so just because something IS or IS NOT specified in section 108
does not mean that it is or is not allowable under fair use.
The authors of the code are taking the position -- one that you disagree with
-- that fair use also covers certain preservation activities. Their position
is that these are in addition to those preservation activities allowed under
Section 108 (which basically says that once something has deteriorated to the
point where you can no longer use it, you can make a copy. Gee, thanks.).
Please try to keep straight which part of the law you are discussing at any one
point. Are you discussing fair use? Or Section 108?
Finally, no rights holders were consulted in formulating the code. If you
bothered to look on p. 3 of the document, you might see the statement: "This
code of best practices was not negotiated with rights holders" along with some
thinking about why this approach was taken. You are correct in stating that I
mock you. But I mock you because you are arguing about something you have
clearly not read, or if you have read it, you clearly do not understand it.
You have certain preconceived notions about what you think the document says
("what do you mean, you can copy an entire work for any reason?!?" "What do
you mean, you never have to negotiate with rights holders?!?!"), and you
repeatedly perpetuate these erroneous statements about the document with no
regard for the actual text to the point where a rational person can only
conclude that you are deliberately trying to obfuscate the issues in an attempt
to scare people away from a thoughtful consideration of fair use, both as it
stands by itself as well as how it intersects with other elements of the
copyright statutes (such as preservation reformatting). Until you cease doing
that, I feel compelled to mock you to demonstrate the utter speciousness of
your argument.
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: Thursday, February 23, 2012 5:33 PM
To: videolib@lists.berkeley.edu
Subject: Re: [Videolib] Video at Risk's Relationship to new ARL Code of Best
Practices
Actually what you have listed below is not what is in 108 but a clever
version reworded to justify certain activities as "fair use" First it
does not say "likely to deteriorate" it says it applies to copy that "
IS ( emphasis mine") damaged deteriorating, lost or stolen". There is
HUGE difference between "likely to deteriorate" and "Is" . Basically
this has been used as an excuse to transfer ANY VHS to DVD because it
"might deteriorate " This interpretation is exactly the reason there
is so much distrust. Perhaps you can tell me how ARL code would define
"likely to deteriorate"?
Also it is not "difficult to access formats" that is another
deliberate misstatement of copyright law. The law requires that the
machine needed to view the film is "No longer manufactured" There are
numerous VHS players (combos) still available in the retail market,
but note again how the words of the actual copyright law are being
twisted to make it easier to just copy VHS to DVD.
Also nowhere does copyright law say "Off-premises access to
preservation copies circulated as substitutes for original copies
should be limited to authenticated members of a library's patron
community, e.g., students, faculty, staff, affiliated scholars, and
other accredited users " What it says is the item shall not be made
available to the public outside the premise of the library or archive.
A standard interpretation of that has been that the copy does not
circulate beyond the library, but again ARL decides it means it can be
shown or used anywhere on a campus and it basically in terms of
rights identical to the original since few academic libraries allow
material to be checked out by non students/faculty anyway.
Basically what the rights holder see ( and with good reason) is that
academic libraries want to make copies of anything they ever bought in
digital format if it is not available for purchase right now and this
is hardly a small point. What exactly is the point of spending money
to to obtain rights, remaster and releasea film on DVD if libraries (
who are the intended market for much of this) have just made their own
copies and use them routinely in classes?
Again there has been a deliberate policy by ARL and others to freeze
rights holders out and just
produce their own interpretation of copyright law and tell libraries
this is how it is. You mock me for this view but please tell me which
rights holders or filmmakers were consulted in determining the code?
On Thu, Feb 23, 2012 at 4:32 PM, Simpkins, Terry W.
<tsimp...@middlebury.edu> wrote:
>
> Dear list,
>
> Many of the questions people are posing with respect to the ARL code could be
> solved by, radical as this idea may be, actually reading the code. However,
> since it's apparently much easier to complain than to learn, I will summarize
> what the code actually says on this issue.
>
>
>
> The principle: It is fair use to make digital copies of collection items that
> are likely to deteriorate, or that exist onl in difficult-to-access formats,
> for purposes of preservation, and to make those copies available as
> surrogates for fragile or otherwise inaccessible materials.
>
>
>
> Limitations
>
> · Preservation copies should not be made when a fully equivalent
> digital copy is commercially available at a reasonable cost
>
> · Libraries should not provide access to or circulate original and
> preservation copies simultaneously
>
> · Off-premises access to preservation copies circulated as substitutes
> for original copies should be limited to authenticated members of a library's
> patron community, e.g., students, faculty, staff, affiliated scholars, and
> other accredited users
>
> · Full attribution, in a form satisfactory to scholars in the field,
> should be provided for all items made available online, to the extent it can
> be determined with reasonable effort
>
>
>
> Additional recommendations (called "enhancements" in the code's lingo)
>
> · Fair use claims will be enhanced when libraries take technological
> steps to limit further redistribution of digital surrogates.
>
> · Fair use claims will be further enhanced when libraries provide
> copyright owners a simple tool for registering objections to use of digital
> surrogates.
>
>
>
> So, to answer Ms. Rosner's question: the effort that the code recommends
> taking is ascertaining whether or not something is still commercially
> available before preserving/reformatting, and to not use the preservation
> copy as a "free" (or, if you will, "stolen") 2nd copy. It does not say
> anything strictly about contacting the rights holder. However, the statement
> that "I think it sums up the entire attitude of the ARL code of basically
> under no circumstances involve or consult with rights holders on the material
> they own or made because they are the enemy" is completely farcical and not
> at all supported by the actual text of the code, much as most of Ms. Rosner's
> understanding of fair use seems to be unsupported by the actual text of US
> Code 17.
>
>
>
> On a side note: I'm not entirely sure why Ms. Rosner conflates what one "top
> NYU" person says with the beliefs and practices of the entire ARL and/or
> academic community. Would the media distribution community would be entirely
> comfortable with me assuming that Ms. Rosner speaks representatively for
> them? I hope not.
>
>
>
> Terry
>
>
>
> Terry Simpkins
>
> Director, Research and Collection Services
>
> Library & Information Services
>
> Middlebury College, Middlebury, VT 05753
>
> (802) 443-5045
>
>
>
> From: videolib-boun...@lists.berkeley.edu
> [mailto:videolib-boun...@lists.berkeley.edu] On Behalf Of Jessica Rosner
> Sent: Thursday, February 23, 2012 3:48 PM
> To: videolib@lists.berkeley.edu
> Subject: Re: [Videolib] Video at Risk's Relationship to new ARL Code of Best
> Practices
>
>
>
> Gary.
> I know I have mentioned this before but never directly asked you, is it your
> belief that in determining if an item is rare and should be "preserved" that
> no effort should ever be made to contact the rights holder/filmmaker? I ask
> because that is exactly what one of the top NYU people told a group of
> librarians at ALA meeting a few years ago and that is a key reason I have so
> little trust in the "code", this project and to be honest acedemic libraries.
> I think it sums up the entire attitude of the ARL code of basically under no
> circumstances involve or consult with rights holders on the material they own
> or made because they are the enemy.
>
> On Thu, Feb 23, 2012 at 11:36 AM, <ghand...@library.berkeley.edu> wrote:
>
> Hi Debra
>
> Berkeley is a principle partner in this project (along with NYU). A
> significant part of the project will be identifying materials in
> collections which are eligible for reformatting, primarily under the
> provisions of Section 108, but possibly under the mantle of fair use, as
> well.
>
> None of us on the project have had contact with the developers of the ARL
> code (to my knowledge).
>
> gary
>
>
>
> > Hi-
> >
> > Does anyone know if the Video at Risk project (dealing with reformatting
> > of VHS tapes) has a relationship with the new ARL "Code of Best
> > Practices" undertaking ? Have there been a conversation between these
> > parties?
> >
> > Just Curious.
> >
> > Thanks.
> > Debra
> >
> > Debra H. Mandel,
> > Head, Digital Media Design Studio
> > Northeastern University Libraries
> > 360 Huntington Ave.
> > 200 SL
> > Boston, MA 02115
> > 617-373-4902; 617-373-5409-Fax
> >
>
> > VIDEOLIB is intended to encourage the broad and lively discussion of
> > issues relating to the selection, evaluation, acquisition,bibliographic
> > control, preservation, and use of current and evolving video formats in
> > libraries and related institutions. It is hoped that the list will serve
> > as an effective working tool for video librarians, as well as a channel of
> > communication between libraries,educational institutions, and video
> > producers and distributors.
> >
>
>
> Gary Handman
> Director
> Media Resources Center
> Moffitt Library
> UC Berkeley
>
> 510-643-8566
> ghand...@library.berkeley.edu
> http://www.lib.berkeley.edu/MRC
>
> "I have always preferred the reflection of life to life itself."
> --Francois Truffaut
>
>
> VIDEOLIB is intended to encourage the broad and lively discussion of issues
> relating to the selection, evaluation, acquisition,bibliographic control,
> preservation, and use of current and evolving video formats in libraries and
> related institutions. It is hoped that the list will serve as an effective
> working tool for video librarians, as well as a channel of communication
> between libraries,educational institutions, and video producers and
> distributors.
>
>
>
>
> --
> 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.
>
--
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.
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.
