Jessica, I think the results and reasonings of specific fair use cases certainly can give us guidance as we make our own case by case determinations of fair use. Despite what you have said, I am very much focused on and concerned about the effect on the copyright holder. That is why I have repeatedly asked in certain situations, what the actual or potential damages to a copyright holder there might be for a particular use. There must be a balance in copyright that rewards creators, but also provides exceptions to their exclusive rights in order to "promote the progress of science and useful arts."
For example, if a copyright holder is not actively commercially exploiting their work (suggesting a limited market), I don't see what negative effect there would be in reformatting "inconvenient" formats (16mm, Umatic, even VHS) to more accessible formats (where the title does not exist in that format) for certain, limited uses (use in the classroom, use for research, etc.), especially if there were a commitment (and some effective controls) to protect further distribution or copying and to purchase the title, should it be made available on the market by the copyright holder in a suitable, updated format. I don't see the harm here and actually see the potential for something like this to stimulate the market for the work (since scholarship and instructional use could expand interest in the work). I'd like to be able to have productive discussions with librarians and rights holders about things like this. Rather than just hearing that our approaches are wrong or illegal because of the rulings in some past court case (which only inform and guide practice, but do not render it illegal), it would be nice to hear what the real concerns are about the effects on rights holders so we might better understand how (or if) those concerns might be allayed? The more we understand the concerns and potential negative effects, the better we should be able to equitably balance those with the intended purposes of the use. mb Michael Brewer Team Leader for Instructional Services University of Arizona Libraries brew...@u.library.arizona.edu<mailto:brew...@u.library.arizona.edu> From: videolib-boun...@lists.berkeley.edu [mailto:videolib-boun...@lists.berkeley.edu] On Behalf Of Jessica Rosner Sent: Monday, February 27, 2012 11:46 PM To: videolib@lists.berkeley.edu Subject: Re: [Videolib] Copyright Issues for D2L/Online Learners Michael Feel free to correct me if I am misstating this but I recall you were the first person (prior to the "code") to say that since there had never been an exact case that said you could not stream an entire film than perhaps you could. You may see that as an academic exorcise but it is a reality for me and as I have posted there is in fact a whole lot of case law related to this which is simply being glossed over and ignored. Again the Kinko's case followed directly by the Michigan documents case were unequivocal that you could not copy large chunks of copyrighted material merely because they were for educational use. It has been more or less black letter copyright law that you may only use portions of works to create new works ( Transformative). They Britannica case made it clear that even if the people doing the copying were non profit institutions they could NOT copy and use entire works. The only case that challenged this was SONY involved individuals "time shifting " for private use and every case I cited happened AFTER Sony so it was no defense. The claim that "fair use" can legitimately cover copying and streaming and entire work is not a speculative idea but is happening every day and again PLEASE correct if i am wrong but you seem to believe that it is acceptable because the law is somehow vague on this. I realize I am the designated "ranter" here but I don't think I can overstate how personally distributors and filmmakers feel betrayed by people they believed supported them. I am NOT referring to most people here but to basically say there really isn't anything we can do about it and you (me) should not writing about it is not an answer. Per my previous response to Gary if someone came in and told you they were doing to take every item in the library, digitize and stream it so the library and you would no longer be necessary I suspect you might be ranting too. PS sorry this was lost in my draft box for the day by mistake. On Mon, Feb 27, 2012 at 3:30 PM, Brewer, Michael <brew...@u.library.arizona.edu<mailto:brew...@u.library.arizona.edu>> wrote: Jessica, You put my name in here and then followed up by implying that I've deliberately and systematically misstated copyright law (you only mentioned me, Pat and ARL, so I am assuming that the "people" below also refers to me). I don't believe I've misstated anything. If anything, I've tried to simply point out your misstatements and overgeneralizations by referring directly to the law. Please point out where you feel I've made misstatements and I'll gladly retract them if they are, in fact, misstatements. It would be refreshing if you'd agree to do the same. mb Michael Brewer Team Leader for Instructional Services University of Arizona Libraries brew...@u.library.arizona.edu<mailto:brew...@u.library.arizona.edu> From: videolib-boun...@lists.berkeley.edu<mailto:videolib-boun...@lists.berkeley.edu> [mailto:videolib-boun...@lists.berkeley.edu<mailto:videolib-boun...@lists.berkeley.edu>] On Behalf Of Jessica Rosner Sent: Monday, February 27, 2012 1:09 PM To: videolib@lists.berkeley.edu<mailto:videolib@lists.berkeley.edu> Subject: Re: [Videolib] Copyright Issues for D2L/Online Learners Not going to happen Gary. That was indeed a sarcastic response but when people continue to write things and deliberately and systematically misstate copyright law ( some things are open to interpretation, others are not) I will respond ( I certainly do not need Mike) In a matter of weeks we have seen a chunk of the library establishment condone a level of copyright infringement that is staggering and they have largely focused it on media rather than books. I still don't see ARL suggesting you can scan and stream books for a course and about the only response I get when I actually quote case law and literal factual errors is "This exact issue has never been decided" or that I am paranoid. There is again a clear and unambiguous case law in from two Federal appeals courts stating that while the exact portion of fair use is debatable the copying of significant portions of written works is a a violation of "Fair Use". At no time in the nearly 20 years since the first case was decided did an institution or group claim that because the cases involved "for profit" entities "non profit" entities could in fact use more let alone all of a work. In addition there is a case from the 80s in which a consortium of schools copied and distributed entire films and TV programs and they were completely bitched slapped down because despite the fact they were non profit they could NOT copy and use whole films in classes both because it violated the amount that could be used under fair use and it directly effected the profits of rights holders. Why exactly is this never mentioned? I am still waiting for anyone supporting the code or similar views to explain upon one legal basis they now believe they can copy and stream whole films. As noted in my previous email I remain beyond startled even by my standards that Pat would suggest as source for copyright a site which literally eliminates the issue of loss of revenue for a rights holder from the debate,basically telling anyone relying on their site that it is not part of copyright law. I get that I rant but I still await specific answers to questions I have posed and will again post the key wording in the Kinko's case and ask upon what legal basis would this not apply to non for profit institutions. "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" On Mon, Feb 27, 2012 at 2:30 PM, <ghand...@library.berkeley.edu<mailto:ghand...@library.berkeley.edu>> wrote: Enough Jessica. This simply is not a productive response. We need to move on for the moment. Gary > You missed the memo Mike. You can copy and stream any film or book ever > made or published so long as a professor tells you he needs it. ARL etc > have said so and you longer have to worry about actual copyright law or > numerous legal cases that say otherwise. > > I am in an especially snarky mood today. I just found a major academic > institution has > "scheduled" an open campus showing of a film JUST BEING released in > theaters and not available on DVD ANYWHERE in the world. I am sure ARL, > PAT > & Michael will find a way to justify that as well. After it is part of > "educational" institution and sponsored by faculty. > > On Mon, Feb 27, 2012 at 12:34 PM, Schmitt, Mike > <schmi...@uwgb.edu<mailto:schmi...@uwgb.edu>> wrote: > >> There seems to be this notion from faculty at my campus that they can >> take >> a program with copyright and place the entire movie on D2L or other >> online >> sources. I don't believe a campus has the right to place an entire >> program >> online for students to watch at their convenience. I don't believe the >> TEACH Act or Fair Use cover this type of situation. If someone can >> point >> to a particular piece of copyright law that would illustrate this that >> would be helpful. >> >> Does anyone have specific examples of campuses be targeted/fined for >> copyright infringement? >> >> I would appreciate any assistance you can provide. >> >> Thanks, >> >> Mike Schmitt >> UW-Green Bay >> >> 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<tel:224-545-3897> (cell) > 212-627-1785<tel:212-627-1785> (land line) > jessicapros...@gmail.com<mailto: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. > Gary Handman Director Media Resources Center Moffitt Library UC Berkeley 510-643-8566<tel:510-643-8566> ghand...@library.berkeley.edu<mailto: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<tel:224-545-3897> (cell) 212-627-1785<tel:212-627-1785> (land line) jessicapros...@gmail.com<mailto: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<tel:224-545-3897> (cell) 212-627-1785<tel:212-627-1785> (land line) jessicapros...@gmail.com<mailto: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.
