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September 18, 2010

Comments

Richard, thanks for the comments. You have hit the key issue here. Normally, when a library purchases a work, it can make fair use of the item or lend it to others (thanks to the first sale doctrine). When a library licenses a work, the license terms, and not copyright concepts such as fair use and first sale, govern what that library can do with the work. It is why even some book publishers have started wrapping their books with licenses: it allows them, rather than copyright law, to dictate the terms of use for that material.

Makes one think...when someone rents a DVD from Netflix or watches a program via Netflix instant streaming, does that mean that rights such as fair use do not apply even if digital restrictions are not an issue (i.e. someone is willing to legitimately work around digital restrictions by capturing content via the "analog hole"?) For someone who intends to do something such as incorporating a small amount of content into a critical commentary that will be publicly released, this could be an issue.

At the same time, when one rents a DVD or other work from a library (meaning a work that was legitimately acquired by the library for their collection), it does not seem as though restrictions on fair use are an issue or even come up that much, if at all (even though the physical medium belongs to the library.)

Incidentally, though delivering movies via Netflix instant streaming would probably require a license, one seems to believe that the public rental of legitimate physical copyrighted works (i.e. DVD discs) would be covered under the "first sale" doctrine (rentals of software and/or sound recordings being exceptions.) Along these lines, the following may be of interest:
http://www.hackingnetflix.com/2007/01/netflix_rents_b.html
http://uchicagolaw.typepad.com/faculty/2007/07/blockbuster-exc.html

If is a sign "non-commercial use only" i think everything is ok. I think too Netflix doesn`t make any trouble for this or other libraries...

Mariann, I believe that the library signs up as if it was an individual. In at least one case, the library also had to get a credit card in order to activate a membership.

Netflix doesn't appear to "vet" membership applications, but instead relies upon its users to read and adhere to its terms of service.

A very basic question -- how does a library obtain a netflix subscription, assuming the conract terms are designed for individual use only? That part is not clear to me.

Thanks for the interesting post Peter. At NELLCO, as the result of an idea from one of member libraries (thanks Pitt!) we began thinking about ways to provide relevant video content to library users with all of the necessary permissions and with minimal barriers to access. The end result is a relationship we developed with Swank Motion Pictures for their Digital Campus. Our member law libraries can now offer on-demand access to streaming video (over 16,000 popular titles) for educational use. See this post (http://www.nellco.org/index.cfm?fuseaction=Feature.showFeature&featureid=72&pageid=490) for details.

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