Hi again Jessica, Without getting into what the GSU case specifically does or does not tell us about streaming video course reserves, I interpret the broader philosophical argument for this kind of service as boiling down to the contention that it is more analogous to the “performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction” permitted under §110(1) than you allow. In both the case of an instructor screening a library copy of a DVD for their class and an instructor utilizing a streaming video course reserve service to make that same library DVD available to their students via their CMS site, one “lawfully acquired” DVD is being screened for multiple students. If copyright law specifically allows for one use, why not the other? This is, I believe, what ARL’s Code of Best Practices in Fair Use for Academic and Research Libraries<http://www.cmsimpact.org/libraries#one> is going for when it recommends that (to single out the three “limitations” I find most relevant to the discussion at hand) “[t]he availability of materials should be coextensive with the duration of the course or other time-limited use (e.g., a research project) for which they have been made available at an instructor’s direction,” that “[o]nly eligible students and other qualified persons (e.g., professors’ graduate assistants) should have access to materials,” and that “[m]aterials 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 intent is to ensure that the streaming video course reserves scenario is as functionally similar to the face-to-face teaching activities scenario as possible in terms of possible market harm and other risks to the rights holder. Or, more briefly: why does it matter whether or not the professor is present in a physical classroom—isn’t the *intent* of §110(1) the most important thing?
Andy From: videolib-boun...@lists.berkeley.edu [mailto:videolib-boun...@lists.berkeley.edu] On Behalf Of Jessica Rosner Sent: Tuesday, September 30, 2014 3:07 PM To: videolib@lists.berkeley.edu Subject: Re: [Videolib] Libraries that stream their own titles No it would not Andrew. I assume it is limited to students in classes. Libraries have always had the right/ability to put these items on physical reserve,but they could not for instance have dubbed extra copies to meet demand which is basically what streaming does. The "face to face" exemption which I consider the clearest most explicit part of copyright law is detailed that it applies only to students in a physical classroom with a professor present using a legal copy. Streaming is an entirely separate right which must be negotiated with the rights holder. I would add on a related note that the visual quality of much of streamed material is dreadful and as someone who deals mostly with feature films visual where quality is key I find this truly offensive. This has no legal impact but to me adds to the contempt with which films are treated in many institutions. On Tue, Sep 30, 2014 at 2:52 PM, Andrew Horbal <ahor...@umd.edu<mailto:ahor...@umd.edu>> wrote: Hi Jessica, Just out of curiosity, would the degree of your objection to streaming video course reserves change based on the level of access the institution in question provides? Most e-reserves program limit access to students with a course-specific username and password, and some require authentication through the institution’s course management system (CMS), which would similarly limit access to just students enrolled in the course that the video is being used in. I ask because this consideration (assuming it matters) doesn’t seem to have been brought into the discussion to this point. Andy Horbal Media Resources Librarian 0300 Hornbake Library University of Maryland College Park, MD 20742 (301) 405-9227<tel:%28301%29%20405-9227> ahor...@umd.edu<mailto:ahor...@umd.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: Tuesday, September 30, 2014 2:26 PM To: videolib@lists.berkeley.edu<mailto:videolib@lists.berkeley.edu> Subject: Re: [Videolib] Libraries that stream their own titles Carla We are not talking about simply digitizing a film, we are talking about digitizing and STREAMING an entire film. There is a HUGE difference There is literally nothing in copyright law save the 20 year orphan provision that in anyway allows any type of streaming.Digitizing is allowed in certain circumstances ( some of which are contested) It is most definitely not allowed when the work is widely available such as KANE & CATCHER. The closest case law is GSU and it clearly limits the portion of a work allowed.. It is often forgotten that GSU WAS digitizing and streaming entire books but took them down as soon as they were challenged by the publishers. Of course "fair use" is made on a case by case basis but I challenge anyone to provide an example where the streaming an entire feature film ( which is basically what I am talking about and what is frankly being done by some institutions) the "argument" that films were made for "entertainment" but using them in classes is "transformative" which is the one advanced by some at ALA is plainly absurd. If it were true than basically any book, movie etc ever made could be streamed or posted online for academic use. We do have the GSU case which involved exactly the same issues and even there the portions allowed were limited and several did not "pass". As I am sure you know there are many limitations to the TEACH ACT the key one being that it does not apply to fiction films On Tue, Sep 30, 2014 at 2:08 PM, Carla Myers <cmye...@uccs.edu<mailto:cmye...@uccs.edu>> wrote: Jessica…your argument that it is “illegal to digitize and post an entire book but legal to digitize and post an entire film” is not a strong one. First off, there most certainly are situations where digitizing an entire book could be considered a fair use. Secondly, when you are making this type of statement you are generalizing about all types of use, however fair use does not work that way. Fair use assessments must be made on a case-by-case basis, applying the facts of the situation to each individual item your wish to copy. I agree that it would be challenging for anyone to claim fair use in digitizing a work as popular as Cather in the Rye, however there are millions of titles that have been published that are not as readily available this particular title that someone could make a strong fair use argument for digitizing, especially when their purpose is educational and/or transformative. In the same way, there are situations where digitizing an entire film could be considered a fair use. The person doing so would just have to make sure that they had a strong argument for digitizing the entire work, rather than just parts of it. Richard…don’t overlook the TEACH Act (17 U.S.C. §110(2)! This statue has provisions for providing students with online access to audiovisual works for educational purposes. Best, Carla Myers Assistant Professor Director of Access Services and Scholarly Communications Kraemer Family Library The University of Colorado at Colorado Springs 719-255-3908<tel:719-255-3908> 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: Tuesday, September 30, 2014 11:00 AM To: videolib@lists.berkeley.edu<mailto:videolib@lists.berkeley.edu> Subject: Re: [Videolib] Libraries that stream their own titles I hope the earth will not come of its axis since we agree On Tue, Sep 30, 2014 at 12:56 PM, Brewer, Michael M - (brewerm) <brew...@email.arizona.edu<mailto:brew...@email.arizona.edu>> wrote: 108 does encompass film, but only certain portions of it. 108(i) details which portions of 108 apply to media, and which do not. The last 20 years (h) and the making of copies for preservation (b) or replacement (c) do apply to media. The copying and distribution of portions of, or entire works to users do not apply. Here is the text: (i) The rights of reproduction and distribution under this section do not apply to a musical work, a pictorial, graphic or sculptural work, or a motion picture or other audiovisual work other than an audiovisual work dealing with news, except that no such limitation shall apply with respect to rights granted by subsections (b), (c), and (h), or with respect to pictorial or graphic works published as illustrations, diagrams, or similar adjuncts to works of which copies are reproduced or distributed in accordance with subsections (d) and (e). mb Michael Brewer | Librarian | Head, Research & Learning 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 Cindy Wolff Sent: Tuesday, September 30, 2014 9:35 AM To: videolib@lists.berkeley.edu<mailto:videolib@lists.berkeley.edu> Subject: Re: [Videolib] Libraries that stream their own titles In some cases even though someone would be within their rights to copy something, the rights holder tries to sue. Film companies have sued people even for the intent of fair use. The onus is put on the entity doing the copying. I’m not really think 108 encompasses film. The late Jack Valenti, the past president of the MPAA, did not believe in the concept of fair use. Cindy Wolff From: videolib-boun...@lists.berkeley.edu<mailto:videolib-boun...@lists.berkeley.edu> [mailto:videolib-boun...@lists.berkeley.edu] On Behalf Of Brewer, Michael M - (brewerm) Sent: Tuesday, September 30, 2014 12:06 PM To: videolib@lists.berkeley.edu<mailto:videolib@lists.berkeley.edu> Subject: Re: [Videolib] Libraries that stream their own titles It doesn’t. I was just clarifying that digitizing (and streaming) entire works is not necessarily illegal. When those kinds of statements are made, I like to remind people that the law does allow for this in certain circumstances. Also, it does not matter if the rights holder objects unless they begin commercializing the work or are willing to make it available for sale at a reasonable price. Michael Brewer | Librarian | Head, Research & Learning From: videolib-boun...@lists.berkeley.edu<mailto:videolib-boun...@lists.berkeley.edu> [mailto:videolib-boun...@lists.berkeley.edu] On Behalf Of Jessica Rosner Sent: Tuesday, September 30, 2014 8:33 AM To: videolib@lists.berkeley.edu<mailto:videolib@lists.berkeley.edu> Subject: Re: [Videolib] Libraries that stream their own titles OK Michael you got me. If you find a film in the last 20 years of copyright ( which in now 95 years but starts in 1923 in most cases) and it is not in print and the rights holder does not object you could stream it. Exactly how does that cover Citizen Kane or or 99.9% of the films being used in classes? On Tue, Sep 30, 2014 at 11:23 AM, Brewer, Michael M - (brewerm) <brew...@email.arizona.edu<mailto:brew...@email.arizona.edu>> wrote: Read the law, Jessica. 108(h) allows for reproduction, distribution, display, or performance for the purpose of preservation, scholarship or research. (h)(1) For purposes of this section, during the last 20 years of any term of copyright of a published work, a library or archives, including a nonprofit educational institution that functions as such, may reproduce, distribute, display, or perform in facsimile or digital form a copy or phonorecord of such work, or portions thereof, for purposes of preservation, scholarship, or research, if such library or archives has first determined, on the basis of a reasonable investigation, that none of the conditions set forth in subparagraphs (A), (B), and (C) of paragraph (2) apply. (2) No reproduction, distribution, display, or performance is authorized under this subsection if— (A) the work is subject to normal commercial exploitation; (B) a copy or phonorecord of the work can be obtained at a reasonable price; or (C) the copyright owner or its agent provides notice pursuant to regulations promulgated by the Register of Copyrights that either of the conditions set forth in subparagraphs (A) and (B) applies. (3) The exemption provided in this subsection does not apply to any subsequent uses by users other than such library or archives. Michael Brewer | Librarian | Head, Research & Learning 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: Tuesday, September 30, 2014 8:15 AM To: videolib@lists.berkeley.edu<mailto:videolib@lists.berkeley.edu> Subject: Re: [Videolib] Libraries that stream their own titles What in 108 has to do with streaming or posting online? It is about making copies. Seriously is there ANYTHING in 108 that refers to streaming or putting material online ? The GSU case is the only one I know of that does and it is pretty clear that only portions can be streamed. GSU admitted as much when it took down whole books as soon as it was sued. Digitizing is one thing, streaming and posting online are TOTALLY different. I am truly stunned that there would be any confusion on this. On Tue, Sep 30, 2014 at 11:07 AM, Brewer, Michael M - (brewerm) <brew...@email.arizona.edu<mailto:brew...@email.arizona.edu>> wrote: Jessica, It isn’t illegal to digitize and post an entire book. It depends on the circumstances, whether those fall under fair use, or fall under something like Section 108(h) - which applies to works in their last 20 years of protection that are not being commercially exploited or available for sale at a reasonable price. I’m not going to engage in the current conversation about films (which, by the way, may also be digitized and streamed under Section 108(h) if the they meet the same criteria). I just wanted to clarify that it is not illegal to digitize entire works that are still under copyright under certain circumstances, so that others are aware. mb http://www.copyright.gov/title17/92chap1.html#108 Michael Brewer | Librarian | Head, Research & Learning 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: Tuesday, September 30, 2014 7:42 AM To: videolib@lists.berkeley.edu<mailto:videolib@lists.berkeley.edu> Subject: Re: [Videolib] Libraries that stream their own titles You digitize and post an entire book on campus system. This is exactly what GSU did BEFORE they were sued and then they took them down and cut back to "chapters" or sections of books. This would again be the exactly the same as digitizing and streaming a film. You are taking an ENTIRE work digitizing it and putting up for many to access without paying for rights. Even the current GSU decision ( which did not go over well with the appeals court but no ruling has been issued) made it clear that you could not use entire works and they did in fact rule that 3 of the "portions" GSU did use probably violated "fair use" and sent them back ( though this is on hold because of the appeal). Can anyone explain to me how it is illegal to digitize and post an entire book but legal to digitize and post an entire film? When I asked this at ALA of one of the chief proponents I was told " that was an interesting question" Personally I think it is part and parcel of the contempt that media works are given by libraries and academic institutions. They are somehow less worthy of copyright protection just as they are less worthy of targeted collection policies, budgets etc. (obviously folks on this list are often the exception but I find "AV" being more denigrated than ever before) On Tue, Sep 30, 2014 at 9:56 AM, Richard Graham <rgrah...@unl.edu<mailto:rgrah...@unl.edu>> wrote: How do you stream a book? Richard Graham Associate Professor - Media Services Librarian N220 Love Library University of Nebraska-Lincoln Lincoln, NE 68588-4100 phone: 402.472.5410<tel:402.472.5410> email: rgrah...@unl.edu<mailto:rgrah...@unl.edu> ________________________________________ From: videolib-boun...@lists.berkeley.edu<mailto:videolib-boun...@lists.berkeley.edu> [videolib-boun...@lists.berkeley.edu<mailto:videolib-boun...@lists.berkeley.edu>] on behalf of Jessica Rosner [maddux2...@gmail.com<mailto:maddux2...@gmail.com>] Sent: Tuesday, September 30, 2014 8:40 AM To: videolib@lists.berkeley.edu<mailto:videolib@lists.berkeley.edu> Subject: Re: [Videolib] Libraries that stream their own titles I appreciate the satire Dennis but I am still waiting for those who claim it is "fair use" to digitize and stream whole movies why they don't do the same with all books, from Catcher on the Rye to expensive textbooks. I mean if it "fair use" for films than who needs to pay for books ( or librarians)? On Tue, Sep 30, 2014 at 8:58 AM, Dennis Doros <milefi...@gmail.com<mailto:milefi...@gmail.com><mailto:milefi...@gmail.com<mailto:milefi...@gmail.com>>> wrote: Dear deg (and all), I, on the other hand, will be found at Max's Tavern having a Grapefruit Margarita (after all, a grapefruit diet is very healthy) each time I read the word "fair use" in the report. I and Punxsutawney Phil should be coming out by February. Having just spent $750+ on my son's text books for his freshman courses, I appreciate Jessica's suggestion of digitizing professor's text books much more. $300 for a text book that they'll never use after the semester versus $10 for a DVD of Casablanca that's "too expensive" for a professor's students to buy even though its ten times better quality than streaming and comes with context and content. And for those in the group who don't know, deg and I are friends and I'm not disagreeing with him at all. He's just stating the facts. I'm just partaking of gallows humor -- I don't know if there's such a thing as a Grapefruit Margarita and to be honest, Punxsutawney Phil and I stopped going out to bars together when he discovered that I had to use Google to spell his name correctly. Best regards, Dennis Doros Milestone Film & Video PO Box 128 / Harrington Park, NJ 07640 Phone: 201-767-3117<tel:201-767-3117><tel:201-767-3117<tel:201-767-3117>> / Fax: 201-767-3035<tel:201-767-3035><tel:201-767-3035<tel:201-767-3035>> / Email: milefi...@gmail.com<mailto:milefi...@gmail.com><mailto:milefi...@gmail.com<mailto:milefi...@gmail.com>> Visit our main website! www.milestonefilms.com<http://www.milestonefilms.com><http://www.milestonefilms.com/> Visit our new websites! www.mspresents.com<http://www.mspresents.com><http://www.mspresents.com>, www.portraitofjason.com<http://www.portraitofjason.com><http://www.portraitofjason.com>, www.shirleyclarkefilms.com<http://www.shirleyclarkefilms.com><http://www.shirleyclarkefilms.com/>, To see or download our 2014 Video Catalog, click here<http://cdn.shopify.com/s/files/1/0150/7896/files/2014MilestoneVideoCatalog.pdf?75>! 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 2014 Conference, Savannah, Georgia, October 8-11, 2014<http://www.amianet.org/> On Tue, Sep 30, 2014 at 8:09 AM, Moshiri, Farhad <mosh...@uiwtx.edu<mailto:mosh...@uiwtx.edu><mailto:mosh...@uiwtx.edu<mailto:mosh...@uiwtx.edu>>> wrote: Thanks Deg. I'm looking forward to read your research results. Take care. Farhad -----Original Message----- From: videolib-boun...@lists.berkeley.edu<mailto:videolib-boun...@lists.berkeley.edu><mailto:videolib-boun...@lists.berkeley.edu<mailto:videolib-boun...@lists.berkeley.edu>> [mailto: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 Deg Farrelly Sent: Monday, September 29, 2014 5:25 PM To: videolib@lists.berkeley.edu<mailto:videolib@lists.berkeley.edu><mailto:videolib@lists.berkeley.edu<mailto:videolib@lists.berkeley.edu>> Subject: Re: [Videolib] Libraries that stream their own titles Farhad No, you are correct. The AIME v UCLA case was dismissed based on UCLA's sovereign immunity from being sued, and AIME's lack of standing (AIME did not hold the copyright). Unfortunately, the judge hearing the case did not stop there and muddied the waters with points about UCLA having acquired PPR for the titles in question, and other points. The the case was NOT decided based on merits. Some have (incorrectly, in my opinion) interpreted the case as being a victory for libraries and essentially permitting digitization. But long story short, there has been no case law established on either side of the issue of libraries digitizing without permission. SOME libraries are applying a fair-use argument for digitizing legally acquired content for course reserve, bolstered in part by the ruling in the Georgia State University case. Jane Hutchison and my research on the status of streaming video in academic libraries (to be presented at the National Media Market in November, and published in Against the Grain about the same time) includes some data on the extent of libraries digitizing from hard copies in their collections. -deg farrelly deg farrelly ShareStream Administrator/Media Librarian Arizona State University Libraries Tempe, AZ 85287-1006 602.332.3103<tel:602.332.3103><tel:602.332.3103<tel:602.332.3103>> On 9/29/14 11:36 AM, "videolib-requ...@lists.berkeley.edu<mailto:videolib-requ...@lists.berkeley.edu><mailto:videolib-requ...@lists.berkeley.edu<mailto:videolib-requ...@lists.berkeley.edu>>" <videolib-requ...@lists.berkeley.edu<mailto:videolib-requ...@lists.berkeley.edu><mailto:videolib-requ...@lists.berkeley.edu<mailto:videolib-requ...@lists.berkeley.edu>>> wrote: > >It is my understanding that according to the copyright law, you?re not >allowed to change the format of audiovisual materials without permission. >The famous case of Berkeley vs. Ambrose Video was dismissed due to >technicalities and Berkeley being a state institution. It was not >dismissed based on copyright law. Am I wrong on this? > >Farhad Moshiri, MLS 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. -- Jessica Rosner Media Consultant 224-545-3897 (cell) 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.
