From: David Tetzlaff (email suppressed)
Date: Sun Oct 17 2010 - 07:49:30 PDT
I want to express sincere thanks to Lawrence Daressa for his post
elaborating his arguments. If I was vituperative, it was in response
to what I perceived as unfair characterizations of people I know, and
know to be of good will. I apologize, and I appreciate the 'fair and
balanced' tone of Lawrence's reply.
> • The criteria of “transformative” use has been the basis of several
> opinions eg Bill Graham Archives vs Dorley Kindersley Publishing
> Inc, and R.R. Donnelley & Sons Company.
That's what I said. I just observed that case law does not have the
same status as legislation.
> • More importantly, it lies at the heart of the Center for Social
> Media’s salient expanding Fair Use to cover use of entire works in
> education. Attentive readers will note in the two examples cited by
> David, CSM uses “transformative” and its near synonym, “repurposed,”
> to justify incorporating copyrighted content in “original” works
> which would not qualify as copies.
I apologize if I failed to acknowledge that 'transformative use'
remains the strongest argument for a fair use claim, not only in a
court of law, but in a moral sense.
> • No one, by the way, is contesting that a transformative use would
> constitute a fair use, what is at dispute is what constitutes a
> transformative use.
No one in our world perhaps, but there are LOTS of people in corporate
media who do not accept the principle of transformative use, or would
limit it to the point of meaninglessness. One need look only to the
DMCA, or the history of CONFU for examples.
> • One very current example of an academic institution under intense
> fiscal pressures making a Fair Use claim to legitimate screening an
> entire copyrighted work in instruction is the pending case between
> Ambrose Film and UCLA (Board of Regents of the near bankrupt
> University of California.) The works in question are performances of
> the complete plays of Shakespeare by the Royal Shakespeare Company
> and BBC..
Thank you for this concrete example. I do not know the details, but as
i believe the BBC Shakespeare series is available under reasonable
terms in commercial distribution, if UCLA has not obtained legitimate
copies, then I doubt I would support their position.
> • The same claims have been put forward by the OpenSourceWare
> Consortium’s Code of Best Practices in Fair Use (also prepared by
> the CSM) and an amicus brief from the American Association of
> Research Librarians in support of UCLA’s claims – hardly a
> disinterested party...
I have followed the CSM's work since the beginning, and I would
characterize their approach as careful and conservative. Specifically,
I have argued with Pat Aufderheide that the Best Practices codes for
Documentary did not go far enough to support/protect the work of found
footage artists such as Craig Baldwin. I urged them to bring Craig
into their loop, but they had little interest in anything so 'far
out.' So again, not knowing the details, I'd have to guess that any
brief they would file in support of UCLA would speak to larger issues
and be well-justified. But if I'm going to engage in this debate, I
surely have a responsibility to look into this further.
> • If I may be allowed an “anecdote” of my own, I asked the CSM to
> give a single example of a legitimate educational use of a
> copyrighted film in whole or in part which would not constitute a
> fair use and they declined to do so.
A tactical response within a hostile conflict perhaps? I know Pat,
Peter, et. al. certainly do not believe that 'anything goes,' nor do I.
> A more pertinent example would be if David included the complete
> “Hapax Legomena” in a Blackboard syllabus without having obtained
> digital rights on the ground that he or his students would “analyze”
> it and Frampton never intended it to be analyzed.
Here, perhaps, we get to the heart of the matter. Use of material in
education is NOT transformative in the sense I take 'transformative'
to mean in the case law. Which is why it's important to note that the
actual Fair Use statute does not establish transformative status as a
I would never include the compete Hapax in a Blackboard syllabus
because it's too damn long and parts 4-7 would have no pedagogical
value for my students. But I could imagine myself including
"(nostalgia)" or "Critical Mass" in their entirety. First, I'm a
little dubious regarding your claim about Frampton's intent, but it's
irrelevant anyway. Most creators don't want their work analyzed. We
get to do so anyway. So, what's at issue here is the question of
rights. As a practical matter, I would probably put "(nostalgia)" and
that alone online because it's on the Treasures 4 disc owned by the
library. I would see no meaningful distinction between the students
examining the film this way and placing the physical disc on reserve
(the Blackboard systems are password protected, so only students
enrolled in my class would have access to the clip).
(In case Mr. Daressa or anyone else is unaware of this, copyright
holders (and these are corporations who have purchased rights, not the
original authors) have sought to undermine the basis of all public and
school libraries -- the purchase of a single copy that can be shared
within a community. Instead they have advocated that libraries should
pay a fee for each and every time a copyrighted work in their
collection is accessed. This is where the discourse of 'Intellectual
Property' goes. Total corporate control and the crippling of education.)
But, lets say I put up "Critical Mass" instead. It's not in
distribution on DVD AFAIK, so I would have to use a bootleg. My school
would probably prohibit me from doing so for fear of litigation, but
this is all hypothetical so lets say they didn't complain. Would I
feel justified in doing this? Yes, but only under certain conditions
-- for example if I had supported Frampton's work in some other form,
say by renting a print occassionally. But other factor's would also
figure into my feeling justified in using a pirated copy to have my
students study 'Critical Mass' such as: Frampton is dead; the work is
unequivocally a classic part of the canon; it's the best introductory
example of a specific topic I want to talk about in class - film
structures based on algorithms; it is not readily available in a form
conducive to study; it is a work of art, not an educational film;
since my only practical choices are use the bootleg or not use the
film at all, the Frampton estate loses nothing economically... all of
which speak to conditions in the Fair Use statute and Fair Use case law.
In contrast, I would be completely opposed to putting a bootleg of
Black Is, Black Ain't in an online syllabus. Riggs is also dead, but
this work is available at a reasonable price from an educational
distributor (California Newsreel) and the school library ought to buy
it. If, however, Mr. Daressa feels that his company is due some
additional fee for having students view the film from their dorm room
instead of walking to the library and popping the tape into a VCR in a
carrel, I can see no justification for that whatsoever.
The situation would also be different, for me, in the case of living
independent artists who hold the rights to their work. Again, unless a
legitimate video version had been purchased by the library, I would
not make the work available to the students online.
Distributors and artists do not seem to understand either the
practical limits under which educators work, or the benefits to the
makers of having their work taught. In reality, most teachers in most
cases have the choice between using cost-effective accessible copies
or not using the work at all. Not using it helps no one. Using it has
at least the potential of circulating the name of the artist and the
work, generating notoriety and legitimacy that can be translated into
something beneficial to the artist -- maybe not more rentals, but more
opportunities for paid personal appearances, support for grant
applications, increasing likelihood of museum acquisitions, more
interest in new works...
While I see opportunities for artists, the new realities may indeed
leave the traditional distributors out in the cold. Times change.
Beloved institutions disappear. I used to read the morning newspaper
every day... I miss it. It is what it is.
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