I agree that this decision (or any decision on record) cannot be used in any way to justify freely streaming theatrical films, and any impact it has would be negative. It is certainly interesting to think about the UCLA situation in the context of Judge Evans's comments, and I imagine the UCLA lawyers are doing so; basically they just lost Section 107 as a defense. I would not preclude the possibility that other arguments can conceivably be made. If I seemed to be making such arguments, it was purely speculative.
Judge Evans weighed every single example very carefully, and none of the examples involved theatrical films. A comparable analysis of Factor 3 for a movie might look, for example, at dramatic units (scenes), or even "chapters" of a DVD as well as percentages of the whole. But availability of permissions is also an issue which Judge Evans addressed re. Factor 4. The CCC provides a tool for getting textual permissions for scholarly publishing. However, the constant questions on this list as to who has which rights for which film illustrate that Factor 4 can be a mare's nest when one is dealing with film. On the other hand, distributors like Milestone make Factor 4 a breeze for libraries. Judy From: [email protected] [mailto:[email protected]] On Behalf Of Dennis Doros Sent: Wednesday, May 16, 2012 12:30 PM To: [email protected] Subject: Re: [Videolib] Permissible amounts in fair use Roger, I would still say based on Judith's assessment and looking over a little of the decision and the opinions, that Jessica is correct in saying that if 100% of a copyrighted material is put up on a University streaming site where the rights are readily available, then there is no part of this decision that would say it's permissible. And I do believe Jessica is right that there are many institutions that are allowing this to happen. I would like to remind one and all that we are ALL colleagues in the educational field and any direct or indirect insults from anybody on this listserv is uncalled for. With Gary heading off to sunsets on the beach drinking single-malt scotch after rum toddy chasers (Gary, I'm sure you're going to correct me on this!), we should be even more civil. And as we are an audiovisual crowd, I like to link my suggestions to videos. Here's today's suggested view<http://www.youtube.com/watch?v=jKGjOE_7bYI>. And please note, this clip is less than 10% of the feature film. ;-) 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: [email protected]<mailto:[email protected]> Visit our main website! www.milestonefilms.com<http://www.milestonefilms.com/> Visit our other websites! www.comebackafrica.com<http://www.comebackafrica.com/> www.yougottomove.com<http://www.yougottomove.com/> www.ontheboweryfilm.com<http://www.ontheboweryfilm.com/> www.arayafilm.com<http://www.arayafilm.com/> www.exilesfilm.com<http://www.exilesfilm.com/> www.wordisoutmovie.com<http://www.wordisoutmovie.com/> www.killerofsheep.com<http://www.killerofsheep.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 2012 Conference, Seattle, WA, December 4-7!<http://www.amiaconference.com/> On Wed, May 16, 2012 at 12:03 PM, Brown, Roger <[email protected]<mailto:[email protected]>> wrote: Thank you Judith. It looks like you read the entire decision (at least, wait for it... the good parts) and understand the specifics and the exceptions of this particular decision. Each case is only more case law, not (so far) a definitive decision on fair use. Well-reasoned analyses with a minimum of typographic errors are always welcome. - - Roger Brown Manager UCLA Instructional Media Collections & Services 46 Powell Library Los Angeles, CA 90095-1517 office: 310-206-1248<tel:310-206-1248> fax: 310-206-5392<tel:310-206-5392> [email protected]<mailto:[email protected]> From: "Shoaf,Judith P" <[email protected]<mailto:[email protected]>> Reply-To: <[email protected]<mailto:[email protected]>> Date: Tuesday, May 15, 2012 12:42 PM To: "[email protected]<mailto:[email protected]>" <[email protected]<mailto:[email protected]>> Subject: Re: [Videolib] Permissible amounts in fair use I once took that personality test online and it said I am most like Lucy in Peanuts. My husband, who is most like Schroeder, doesn't let me forget it. Nickels welcome. Judge Evans talks about the Kinko's and Michigan Documents cases, and disagrees about the "good parts" argument. In only one of the cases she considers does she say that the excerpt constituted "the heart of the work." I'm not sure whether this is because a plaintiff argued it or it was her own analysis. NB she looks at 74 cases, of which 27 fail the prima facie copyright violation test because either the plaintiffs were not able to show they had the rights, or else the excerpt was never accessed by students (e.g. the course was cancelled). So there are 47 cases where she looks at fair use. In 100% of them she considered that the library providing free access to the excerpts (factor 1) strongly favored the defendants, and that the nature of the works (scholarship relevant to the courses) favored the defendants (factor 2). In the 5 cases where she found violations, factor 3 had to favor the plaintiffs (that is, the amount had to be more than "distinctly small") AND factor 4 had to strongly favor the plaintiffs (not only was permission available in a reasonably convenient way, but the book in question actually made money on such permissions). There is no 10% rule. The rule is that an amount under 10% of a book with fewer than 10 chapters, or one chapter of a book with more than 10 chapters, is "distinctly small." So in some cases 5% of a book could be more than a distinctly small portion (if it was a huge book with many chapters). I suppose that if you had a book with 12 chapters, and one chapter took up 20% of the book, that chapter could be used and still be "distinctly small." But if the permission is difficult to come by, the amount is irrelevant. In 13 cases, factor 3 favored or even (in one case-30% of the book!) strongly favored the plaintiffs but the judge found for the defendants based on factor 4.. I shall now go fly a kite into the kite-eating tree. Judy Shoaf ____________________ Good points -- I see another healthy debate on the horizon. Hold football for Lucy, hope for the best, rinse, repeat. If I'm not mistaken it was the Kinko's case here in Ann Arbor, where some of these specific percentages were discussed. I think the prof. had copied 30-40% of a book, but the additional argument that had some substance centered not so much on the large percentage but that the "good parts" were primarily what was copied. "Good parts" > core > substantive argument, etc. Qualitative, not quantitative. At any rate, it seems to me that stating something as exact as 10% is an effort in futility -- doesn't that miss a lot of the point, even though it is one part of the fair use review? (disclosure: I have not read even 1% of the decision yet, so I shan't go opinionating beyond this little wondering!). Randal Baier 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.
