RE: question on use/DVD to VHS

["Varvel, Virgil" <vvarvel@xxxxxxxxxxxxx>]

Hi,

Thanks for the help.  I know that nonprofit has nothing to do with market
harm, it has to do with purpose though which is a fair use factor.  I just
wanted to correct myself if I misspoke before.

In this case, there is only a DVD version available.  I do not know why.  I
was not even told the title of the program, but could always ask.  This is
the only reason that I thought there might be an argument.  If there was a
VHS copy, buying it would have been my first recommendation as well.  They
were not planning on circulating the DVD original, only the VHS copy.

My first recommendation was instead going to be for the library to buy a DVD
player, especially since this could come up again in the future.  I like
your comment on that option as it added some more fuel to that argument.  I
think your last paragraph is very insightful.  It's always nice to hear from
an expert.

Take care,

Virgil Varvel
Vvarvel@xxxxxxxxxxxxx
Illinois Online Network

-----Original Message-----
From: Intellectual Property Virtual Scholar [mailto:ipscholar@xxxxxxxx] 
Sent: Tuesday, April 22, 2003 4:47 PM
To: Varvel Virgil
Cc: 'digital-copyright@xxxxxxxxxxxxxx'
Subject: Re: question on use/DVD to VHS

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