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.edu>wrote: > > > >> 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 > >> error and that any use, dissemination, forwarding, printing, or > copying of > >> this email and any attachments is strictly prohibited. If you have > received > >> this email in error, please immediately delete the email and any > >> attachments from your system and notify the sender. Any other use of > this > >> e-mail is prohibited. Thank you for your compliance.**** > >> > >> 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. >
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.
