Re: question on use/DVD to VHS

["Intellectual Property Virtual Scholar" <ipscholar@xxxxxxxx>]

Virgil:  You are right in suspecting that you will have trouble fitting 
the conversion into a specific statutory exception (such as Section 108
(b) or (c) for libraries).  You may well have a legitimate fair use 
right, but we would need more information, and you would need to 
reconsider some of your analysis (e.g., the fact that you are nonprofit 
does not mean that your copying lacks any market harm).

Let me ask one simple and important question: Does PBS or anyone else 
sell a VHS version of the program at what we might call customary 
prices?  (I gather that you already are answering "no".)

If no, then that fact might be critical in the mix when you look again 
to Section 108 or fair use.  Especially regarding fair use, you may 
indeed have little or no market harm if PBS is not providing for the 
market at all, and if you purchased the DVD, put it away, and are not 
trying to exact "two usable copies" from one purchase.  (Don't forget 
to evaluate the other factors.)

If yes, then buy it.  The availability weakens your claim of fair use.  
Moreover, PBS prices are usually cheaper than the cost, bother, and 
risk of calculating fair use.  Giving a little money to PBS is also not 
a bad thing.

With the dropping price of DVD players (under $100), the time will also 
come when buying a player will be cheaper than buying blank tapes, 
analyzing fair use, and making the copies.

Kenny Crews

----- Original Message -----
From: "Varvel, Virgil" <vvarvel@xxxxxxxxxxxxx>
Date: Tuesday, April 22, 2003 1:39 pm
Subject: question on use

> Hello,
> 
> I recently was given the following question, for which I could 
> think of
> several answers, but I thought it would be a good idea to see what the
> people on this list had to say about it.
> 
> An instructor wants to use a resource that is only sold by PBS on 
> DVD.  The
> library does not have DVD players available in house, but with 
> single copies
> of the media, checking the item in and out would make availability 
> a real
> problem.  The question was whether or not the library could make a 
> VHS copy
> of the DVD for reserve use if the DVD is retained only as an 
> archive and not
> circulated.  I'm not sure if this would fall under an exemption 
> because the
> copy is made from a DVD, format is changed, and various other 
> rules with
> digital media, but even without an exemption, it would seem to be 
> a case of
> fair use in any event since they would still only be circulating 
> one copy
> made from a legally acquired original copy for use only within the 
> libraryand the VHS would be of lower quality.  This is also within 
> a community
> college so we have non-profit educational use, no negative market 
> effectthat I see, but we still have nature and amount arguments.  
> Even though the
> entire thing is copied, only a single copied is used within the 
> librarythough.
> 
> I'd be interested in other's insights into this question and 
> perhaps any
> relevant similar situation that might come to your mind.
>
> Thanks,
> 
> Virgil Varvel
> Vvarvel@xxxxxxxxxxxxx
> Illinois Online Network
>