The problem is that " clear pedological reason for streaming an entire film" is pretty much an open invitation to do stream anything that a professor wants the students watch.. Of course there is a reason to use the whole film and not just a portion. Professors often want their students to see entire films and lots of them depending on the course but they don't want to "waste" class time with the showings and they also often don't want their students to have to watch them in the library or check them out from reserve. That wording is pretty much meaningless in my view since it pretty easy to correctly claim you need the whole film for a course, the key question is does that qualify for "fair use" and again Mr. Butler and ARL ( sorry about that but as you will see from link I screwed up taking that from the session header and ironically originally had ARL and went back and changed all of them) say that it is under what I consider to be the totally incorrect theory that merely using material that was produced for the general public in a class is "transformative" because taken to its logical conclusion it would cover any work not produced for the educational market and would also invalidate decades of copyright law and cases up to and including Georgia State ( which is of course on appeal) which librarians considered a huge victory but which made it very clear that only portions of a larger work could qualify as "fair use" which has pretty much been the standard. I have asked for ANY example where it would be legal to stream an entire film without a license. Mr. Butler thinks any class use would make it legal but I have not heard of any other example. I could think of some but they would not specifically involve educational use. In theory one could take Citizen Kane, dub the entire track with say odd political commentary and cut in some scenes of say Fox News and though I am sure WB would throw a fit, the satire exemption could certainly be legitimately argued. Again it was very clear to me that Mr. Butler ( as well as others you can guess) are claiming that other than being used in a class and limited to enrolled students, feature films can be streamed in their entirety under the "entertainment is now educational theory" without license or payment to rights holders. If I somehow misunderstood or this is not the belief of ARL surely they can say so and provide SOME explanation of what would constitute clear pedagogical reason for being able to steam complete films.
I know I sound a bit deranged on this but I routinely get emails from librarians begging for help because their administration is telling them to stream whole films and they do not have to license it. Likewise I get info from filmmakers and professors about wholesale streaming of feature films at colleges I really, really do appreciate the majority of libertarians and institutions who do the right thing and I also understand how frustrating it is that so many films either can not be licensed or the rights holder wants an insane amount of money. Here is the link to session, most of which was interesting and informative about legitimate "fair use" but there was a general consensus of "don't worry you won't get caught even if it is not "fair use" and if you do it won't cost you anything" which I thought was kind of arrogant for libraries Here is link to session and I know there was at least one other videolib person there if they want to chime in. This streaming films and books issue/questions came up at the end. http://ala13.ala.org/node/10062 Again I am sincerely grateful to those who legally license/ buy material which I believe includes almost everyone on this list. On my end I work hard to get filmmakers I represent to understand that things have changed and they need to be willing to let go and if needed sell their works in perpetuity instead of expecting more sales if formats change and they can't charge institutions more than individuals for the same use ( excluding streaming , PPR of course but then most of them only sell to the educational market. We are all in this together. On Wed, Aug 21, 2013 at 1:58 PM, Simpkins, Terry W. <tsimp...@middlebury.edu > wrote: > Jessica and all,**** > > First off – it was pointed out to me off-list that my response contained > some imprecise language. Namely, I said: “…to suggest that *screening*an > entire film would be fair use, there would have to be a clear > pedagogical purpose for *screening* the entire film that is not served by > *screening* only a portion.” I meant to focus on “streaming” issues, not > “screening” issues in general, and should have use “streaming” in place of > the bolded words, above. Many thanks to Eileen Karsten for pointing this > out to me, and apologies if this muddied the intelligibility of my post.** > ** > > ** ** > > Now, regarding Jessica’s response:**** > > Not having heard this particular talk by Mr. Butler, I can’t comment on > what he said or did not say. However, I would argue that the official ARL > (not ACRL, by the way) position is the one articulated in the document. If > he did not specifically talk about “pedagogical use,” my guess (and it’s > just that) would be that he was making certain assumptions about the > reasons behind the streaming.**** > > ** ** > > As for schools that stream entire films “without bothering to check” etc., > well, those schools may well be infringing! However, this does not change > or invalidate the ARL position as stated in the document, because these > schools, from Jessica’s description, are not adhering to the published > guidelines. Furthermore, Ms. Rosner seems at times to reduce things to > simple dichotomies: “Either ACRL [actually ARL] and ALA believe it is legal > to stream a feature film (for a class limited to the students enrolled) > without a license or they don't.” Well, no, their positions are not quite > so reductionist. ARL believes it is legal to stream an entire feature film > under certain circumstances. It’s not a binary position, it’s actually a > “well, it depends” position.**** > > ** ** > > As for the issue about books, I actually agree with Ms. Rosner: if ARL > makes the “transformative” argument about films, then it seems reasonable > (to me) to make the same argument about books, subject to similar > limitations. It may be that, as a lawyer employed by ARL, Mr. Butler was > not interested in articulating a new ARL legal policy in public, on the > spot, and so, as lawyers are wont to do, found it necessary to equivocate. > I can’t say I would really blame him for that.**** > > ** ** > > I’m not really arguing about the legality of ARL’s position, though I hope > it ultimately passes the test in a courtroom someday. I just want it to be > very clear that the guidelines as published place a variety of limitations > on the concept of streaming and e-access to library materials, and they do > not, in fact, contain blanket statements such as “XYZ is ALWAYS legal” or > “ABC is ALWAYS infringing.” Their position in their published documents is > fairly nuanced, and the debates should reflect those nuances, not sweep > them aside.**** > > ** ** > > Finally, thank you for your kind words about Middlebury and fair use in > general. I apologize profusely if I ever insinuated or implied you were a > “nut job” (I hope I have never done that). I recognize you have a wealth > of experience within the film community, and I have read many of your posts > to this board that have been exceedingly helpful in finding distributors, > rights holders, warning about piracy sites, etc. These can be invaluable > for anyone involved with copyright issues and film.**** > > ** ** > > Kind regards,**** > > 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:* Wednesday, August 21, 2013 1:24 PM > > *To:* videolib@lists.berkeley.edu > *Subject:* Re: [Videolib] The Good News about Library Fair Use > (infographic)**** > > ** ** > > Sorry but those "limitations" do not change the fact that ACRL AND Brenden > Butler in a public session say it was entirely legal to steam ALL of > CITIZEN KANE ( which is legally available to license from Swank) because it > was made for "entertainment" and was now being used for "education" and > that made it tranformative. There was no special "pedagogical use" use > suggested. It was perfectly clear that he said any feature film being used > in a class could be legally steamed in its entirety under "fair use" Does > he not speak for ACRL? I know of many schools streaming entire feature > films without ever bothering to check with license or pay copyright > holders. If this is NOT the position of ACRL than I suggest someone have > Mr. Butler explain why he said so AND avoided the corollary issue of if > this would not also be true of written materials. I am not making this up. > Either ACRL and ALA believe it is legal to stream a feature film ( for a > class limited to the students enrolled) without a license or they don't and > so far one of their top guys says they do. If one argues that streaming an > entire film to students for a class is legal because it is transformative > to take "entertainment" material and use it for "educational" purposes it > surely follows that this can be applied to any material an educational > institution uses even if Mr. Butler flat out refused to answer the > question. **** > > I sincerely appreciate that Middlebury is doing the right thing but I am > not a nut job and in fact believe very strongly in legitimate "fair use" > but I also work with filmmakers who have seen there works ripped off by the > very institutions they trusted and sadly because of financial pressures > from the top more institutions seem to do this**** > > ** ** > > ** ** > > ** ** > > On Wed, Aug 21, 2013 at 12:59 PM, Simpkins, Terry W. < > tsimp...@middlebury.edu> wrote:**** > > Hello everyone,**** > > Ms. Rosner’s description of the ARL position is, as usual, simplistic and > ultimately erroneous. ARL does not simply claim that you can stream an > entire film for class purposes without taking any other factors into > account. Among the other “limitations,” in Best Practices parlance, the > ARL authors cite are:**** > > · “the availability of materials should be coestensive with the > duration of the course or other time-limited use”**** > > · “only eligible students … should have access”**** > > · and, perhaps most importantly, “materials should be made > available *only when, and only to the extent that, there is a clear > articulable nexus between the instructor’s pedagogical purpose and the kind > and amount of content involved*” [the emphasis is mine].**** > > These are not trivial limitations to be dismissed for the purposes of > polemics. Rather, these are absolutely crucial factors, the absence of any > one of which might lead even the ARL authors (not to mention a judge and > jury) to conclude that a particular use is in fact *not *fair, but > infringing. Let me repeat this in case the rights holders on the list > don’t get it: in order for ARL (and -- since the best practices guidelines > are obviously NOT part of the text of the copyright law -- only ARL, at > this point, along with those who subscribe to their best practices > arguments) to suggest that screening an entire film would be fair use, > there would have to be a clear pedagogical purpose for screening the entire > film that is not served by screening only a portion. These cases are > relatively few and far between, in my experience with faculty.**** > > **** > > Ms. Rosner and others have argued before in this forum that NO use of an > ENTIRE copyrighted work should EVER be considered fair use. The ARL Best > Practices folks clearly disagree with this assertion. But they most > certainly do not argue that ANY use of an ENTIRE copyrighted work in an > educational setting is fair, and for Ms. Rosner to keep implying they do is > disingenuous. Until the courts rule clearly on these issues, the ARL > document suggests that ALL of the criteria above, along with others I > haven’t listed, need to be considered before sound judgment regarding fair > use can be exercised.**** > > At Middlebury, we do not make fair use decisions to avoid purchasing > things, to avoid licensing fees, to avoid seeking permission, or to avoid > hard work. We do make fair use decisions when we have few or no options > open to us, and we need to move forward in order to carry out the teaching, > learning, and research imperatives of the institution. For us, the ARL > guidelines are thoughtful, clear, and articulate, something I can’t always > say about the arguments I hear coming from rights holders.**** > > **** > > 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:* Wednesday, August 21, 2013 11:53 AM > *To:* videolib@lists.berkeley.edu > *Subject:* Re: [Videolib] The Good News about Library Fair Use > (infographic)**** > > **** > > "Because they are developed by practice communities themselves without > intimidation from hostile outside groups."**** > > Translation "We did not want rights holders and actual copyright lawyers > to interfere with our views"**** > > I believe this document is at least a year old. It does contain the single > most insane notion I have seen re streaming feature films which was the > same one expressed at the ALA conference session I went to.**** > > Basically they claim that you can stream any ENTIRE feature film because > using it in a class is "transformative" from it's original purpose of > "entertainment" This has ZERO basis in law or any previous copyright case > and is actually directly contradicted by many. At the ALA session when I > asked asked if this were indeed correct did it not also apply to books so > that a library could scan and upload The Great Gatsby, Catch 22 etc, the > response was "that is an interesting question" which of course was a total > dodge of this absurd theory. This "justifies" making and streaming copies > of ANY work not created exclusively for educational use. Good luck > defending that in court.**** > > **** > > On Wed, Aug 21, 2013 at 10:43 AM, Dennis Doros <milefi...@gmail.com> > wrote:**** > > "Because they are developed by practice communities themselves without > intimidation from hostile outside groups."**** > > **** > > Wow! I didn't realize I was so tough! Next time I meet a librarian, I'll > have to ease up on my hostility. ;-)**** > > > **** > > Best regards, > Dennis Doros > Milestone Film & Video/Milliarium Zero > PO Box 128 / Harrington Park, NJ 07640 > Phone: 201-767-3117 / Fax: 201-767-3035 / Email: milefi...@gmail.com > Visit our main website! www.milestonefilms.com**** > > Visit our new websites! www.portraitofjason.com, > www.shirleyclarkefilms.com, **** > > Support "Milestone Film" on > Facebook<http://www.facebook.com/pages/Milestone-Film/22348485426> > and Twitter <https://twitter.com/#!/MilestoneFilms>!**** > > **** > > See the website: Association of Moving Image > Archivists<http://www.amianet.org/> and > like them on > Facebook<http://www.facebook.com/pages/Association-of-Moving-Image-Archivists/86854559717> > **** > > AMIA 2013 Conference, Richmond, Virginia, November > 5-9!<http://www.amianet.org/> > **** > > **** > > On Wed, Aug 21, 2013 at 9:46 AM, Pia Hunter <huntr...@uic.edu> wrote:**** > > Greetings, > > The ARL has created a great new resource to promote fair use and the Code > of Best Practices. The full PDF is available at:**** > > http://www.arl.org/publications-resources/2875 > > There are three versions available: a full-size PDF, an 8.5" x 11" letter > sized PDF for printing, and a PNG file for blogs and website. **** > > Please spread the word! > --**** > > Pia M. Hunter > Reserve/Media and Microforms | University Library (M/C 234) > University of Illinois at Chicago > 801 South Morgan Street, Suite 1-250 LIB | Chicago, Illinois 60607 > > reserve submissions: lib-...@uic.edu | copyright inquiries: > copyri...@uic.edu > phone: 312-996-2719 | fax: 312.996.0901**** > > **** > > 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.**** > > ** ** > > 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.
