Sorry, once again: 1) The Google decision allowed them to copy the whole work, but not to use or have used its entirety. Only portions. Enough said.
2) With Chamberlain vs. Skylink, Chamberlain lost because it neither alleged copyright infringement nor explained how the access provided by the transmitter facilitated the infringement of any right that the Copyright Act protects. It's was for the use a universal garage door opener and therefore did not have to do with with copyright. That's why the DMCA complaint was overturned. 3) American Broadcasting Companies v. Aereo, Universal City Studios, Inc. v. Reimerdes, RealNetworks, Inc. v. DVD Copy Control Ass'n, Inc. , MGM Studios, Inc. v. 321 Studios and DVD Copy Control Ass'n, Inc. v. Kaleidescape, Inc. are much better guides to DMCA use than Chamberlain vs. Skylink because they deal with DVD and copyright. Best regards, Dennis Doros Milestone Film & Video 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.mspresents.com, www.portraitofjason.com, www.shirleyclarkefilms.com, To see or download our 2014 Video Catalog, click here <https://cdn.shopify.com/s/files/1/0150/7896/files/2015MilestoneVideoCatalog.pdf?2223081985127089573> ! Support "Milestone Film" on Facebook <http://www.facebook.com/pages/Milestone-Film/22348485426> and Twitter <https://twitter.com/#!/MilestoneFilms>! On Mon, Aug 24, 2015 at 6:25 PM, Carla Myers <cmye...@uccs.edu> wrote: > Hi, Dennis > > While users of Google Books can only see snippets of the work Google did > have to scan the entire books in order to make their search engine work. > Judge Chin states in his Google Books ruling > <https://www.eff.org/files/2013/11/14/authors-guild_v_google_fair-use-summary-judgment_copy.pdf> > “Here, as one of the keys to Google Books is its offering of full-text > search of books, full-work reproduction is critical to the functioning of > Google books.” In the HathiTrust ruling > <https://www.eff.org/files/hathitrust_decision_copy_2.pdf> Judge Baer > states “Here, entire copies were necessary to fulfill Defendants’ purposes > of facilitation of searches and access for print-disabled individuals.” > > > > The Federal Circuit Court ruling in Chamberlain v. Skylink can help > provide some guidance on the application of the DMCA in certain situations. > The ruling > <https://www.eff.org/files/filenode/Chamberlain_v_Skylink/20040831_skylink_federal_circuit_opinion.pdf> > states that: > > Underlying Chamberlain’s argument on appeal that it has not granted such > authorization lies the necessary assumption that Chamberlain is entitled to > prohibit legitimate purchasers of its embedded software from “accessing” > the software by using it. Such an entitlement, however, would go far beyond > the idea that the DMCA allows copyright owner to prohibit “fair uses . . . > as well as foul.” Reimerdes, 111 F. Supp. 2d at 304. Chamberlain’s > proposed construction would allow copyright owners to prohibit exclusively > fair uses even in the absence of any feared foul use. It would therefore > allow any copyright owner, through a combination of contractual terms and > technological measures, to repeal the fair use doctrine with respect to an > individual copyrighted work—or even selected copies of that copyrighted > work. Again, this implication contradicts § 1201(c)(1) directly. Copyright > law itself authorizes the public to make certain uses of copyrighted > materials. Consumers who purchase a product containing a copy of embedded > software have the inherent legal right to use that copy of the software. > What the law authorizes, Chamberlain cannot revoke. > > To me this language seems to indicate that the DMCA does not apply to uses > that are authorized under the law, and here they specifically cite fair > uses. > > > > To reply to your final paragraph I'll say that I know a lot of the > librarians who subscribe to this list and, through my relationships with > them, can vouch that they are honest, hardworking professionals who are > eager to act within the law. I like to think of myself as being a member of > that group. While I am a champion for the application of the copyright > exemptions I’m also an ardent supporter of the rights bestowed to creators > under the law and, as many folks here at UCCS could tell you, I have no > hesitations in letting students and faculty members know when I think they > should obtain permission or a license to reuse a work. I agree that it > would be nice if everyone could coexist peacefully with these exemptions as > we all utilize them. Publishers print books and articles that contain > images and quotes that are reused under the auspices of fair use. > Filmmakers pull works from the public domain to make feature films. > Documentary filmmakers can utilize their Statement of Best Practices in > Fair Use > <http://www.cmsimpact.org/fair-use/best-practices/documentary/documentary-filmmakers-statement-best-practices-fair-use> > when making a film. Musicians utilize fair use to make parodies of songs. > Many types of artists make transformative new works by building upon the > work of others. I love cheering these folks on as I see these applications > of the exemptions as fulfilling the mission of copyright law, which our > Constitution identifies as “promoting the progress of the sciences and > useful arts.” Given the ways my many of librarian friends and I support > others in taking advantage of these exemptions my heart always breaks a > little when I see librarians disparaged and denounced for considering them > when trying to provide our patrons with access to works. > > > > Are there folks out there knowing and intentionally violating the law? > Definitely. Do I condone their actions? Absolutely not. For those folks who > are eager to follow the law, be it a librarian or anyone else, I personally > don’t see the application of the copyright exemptions as a being a > subversive act so long as the law is thoughtfully applied and the user is > prepared to obtain permission or a license to use the work if the exemption > does not fit the situation. > > > > Ok! I’m really am done now! I encourage all of you to continue this > discussion, but I’m officially bowing out of this one. > > > > Best, > > Carla > > > > > > > > *From:* videolib-boun...@lists.berkeley.edu [ > mailto:videolib-boun...@lists.berkeley.edu > <videolib-boun...@lists.berkeley.edu>] *On Behalf Of *Dennis Doros > *Sent:* Monday, August 24, 2015 9:39 AM > *To:* Video Library questions > > *Subject:* Re: [Videolib] Copyright question: American Playhouse Films > > > > Carla, > > > > I'm sorry, but the Google Books search is a false statement and the case > actually supports Jessica. The court allowed that Google could scan entire > books but does *not* allow the reading of an entire copyrighted entire > book. Books that are still under copyright can only be searched by users, > allowing users to read multiple *portions* that are relevant to their > searches. The fact that they can only read portions of the scans and there > was a link to purchase of the entire book was important to the judge. Also > the judge ruled that as 93% of the books were non-fiction, this was a > factor. Based on this judgement, Jessica's claim that fictional films have > to be treated differently in using their entirety seems to be very > accurate. There's a good reading of the decision here > <http://scholarlykitchen.sspnet.org/2013/11/18/google-books-lawsuit-dismissed-all-society-benefits-says-judge-chin/>. > Also, that decision is under appeal and I'm not sure there's been a final > decision. > > > > I have to say that I haven't looked at the HathiTrust case and I can't now > because Amy's asking me to comment on a poster design, but it seems the > judge ruled with the exact same reasoning. That entire works can be scanned > for archival purposes, but not for the use of the entire book. Only the > search itself is allowed. > > > > And because of DMCA, DVDs also have to be treated differently than books. > You certainly can't take a DVD and transfer it up online for use. That's > breaking the digital code and you're only allowed to do this for clips. The > use of illegal uploads on YouTube may be encouraged here as there's no > breaking of the digital code by the user, but a) I don't know if that would > be upheld in court and b) morally very questionable. And as anyone who > knows my rants on the listserv, I consider that should be part of > everybody's education and everybody's decision making. Just because you > won't be caught, or just because a court case hasn't been decided on an > issue, doesn't make it legal or ethical. > > > > BUT!!! what discourages me is that we're back to the bad old days of this > listserv when a few (not all) are looking for ways to subvert the > foundations of the service provider when we should find ways to co-exist so > these services can continue to exist. And yes, I'm now even including the > studios along with the rest of us since they are investing large amounts of > money to restore films even for their very minor titles and they are making > them available to the public and institutions at a very reasonable price > while knowing they will lose money. (Not something studio owners and > investors really appreciate.) I was just at The Reel Thing conference and > the profit/loss of these minor titles is an issue. As for indie > distributors, I've been warning for years that it's tough times and just > because your favorite distributors haven't closed down, that doesn't mean > they won't in the coming years. Look at New Yorker Films and the loss of a > huge number of titles. > > > > > > > > > > > > > Best regards, > Dennis Doros > Milestone Film & Video > 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.mspresents.com, www.portraitofjason.com, > www.shirleyclarkefilms.com, > > To see or download our 2014 Video Catalog, click here > <https://cdn.shopify.com/s/files/1/0150/7896/files/2015MilestoneVideoCatalog.pdf?2223081985127089573> > ! > > > > Support "Milestone Film" on Facebook > <http://www.facebook.com/pages/Milestone-Film/22348485426> and Twitter > <https://twitter.com/#!/MilestoneFilms>! > > > > On Fri, Aug 21, 2015 at 4:06 PM, Bergman, Barbara J < > barbara.berg...@mnsu.edu> wrote: > > Thanks Carla. Good summary. > > > > Barb Bergman | Media Services & Interlibrary Loan Librarian | Minnesota > State University, Mankato | (507) 389-5945 | barbara.berg...@mnsu.edu > > > > *From:* videolib-boun...@lists.berkeley.edu [mailto: > videolib-boun...@lists.berkeley.edu] *On Behalf Of *Carla Myers > *Sent:* Friday, August 21, 2015 2:59 PM > *To:* videolib@lists.berkeley.edu > *Subject:* Re: [Videolib] Copyright question: American Playhouse Films > > > > Sure! Off of the top of my head I can think of three. The Google Books > lawsuit and the HathiTrust lawsuit are also both good examples. In both > cases the scanning of millions of books in their entirety was found to be a > fair use. There is also the Bill Graham v. DK lawsuit, where courts found > the republication of concert posters to be fair use. > > Again, I caution you to not try to limit the application of the TEACH Act > based off of perceived limitations on the application of fair use. They are > two different statutes and I think it's unwise to try to limit the > application on one based off of the language of another. > > My view is that an instructor can always consider utilizing the TEACH Act > for providing a copy of a work to students online, be it in part or in its > entirety. Working through the points of compliance and the language of the > law will help them determine if their use can be made under the Act. I > personally don’t find the quote in the congressional report to be vague or > nuts. To me they are saying that you do need to consider the amount of the > work that is relevant to the educational goal and use only that. Say there > is an instructor who is teaching an online Computer Generated Imagery (CGI) > class and wishes to stream Peter Jackson’s *The Fellowship of the Ring* > in its entirety for their students. There are certainly lots of scenes in > this movie that incorporate CGI, but there are also lots of senses where > hobbits are wandering through pastures and there is no CGI used. Under the > TEACH Act I think the instructor would be able show clips of the scenes > where CGI is used but, in my opinion, the parts of the movie that have no > CGI would not seem relevant to the educational goals of the class so I > would discourage them from using those. As for your Citizen Kane example… I > would say you would need to talk with the instructor to find out their > instructional needs and then work carefully through the TEACH Act to see if > it could be applied to the situation. As with almost any copyright > questions you can’t generalize and say “Sure that’s ok!” You need to > examine the facts of each situation, see what exemptions may be applicable, > and then work from there. > > > > I don’t want to tie-up the list with back-and-forth so I’ll conclude by > climbing up on a soap box and saying that fair use and the TEACH Act are > exemptions that are extremely applicable in higher education. When wanting > to share copyrighted works with students I encourage instructors and > librarians to consider them both carefully and apply the law in a > thoughtful manner. I think that as librarians we are here to promote and > champion access to information. When we curb our practices out of fear of > “what if I might get sued” or based off of bad copyright information we are > keeping ourselves from achieving this goal. I’m certainly not encouraging > anyone to break the law in the name of information advocacy! Rather I’m > saying that Congress gave us these exemptions to help us fulfill this > mission and I think that should always thoughtfully consider their > application to a situation. > > > > Best, > > Carla > > > > > 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.
