Converting VHS to DVD for Higher Ed.

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  • I am employed by the technology department at a university in the U.S. whose role, among other things, is to convert media such as vhs, dv, and so on into other formats. Recently, the university recieved some flack for copyright violations so we want to be extra careful about how we handle copyright issues as such it would be nice to have references to official documentation (of course I'd appreciate any advice on the matter).

    The issue I have to ask about is that our classroom support people want to remove vhs players from classrooms and they believe this action is feasable because professors can simply bring their vhs material that is used in classrooms to the tech department and have it converted to DVD. When I heard this I objected on the grounds that conversion from one media to another, specifically vhs to dvd, may be illegal and that we needed to look into this issue further before moving ahead.

    Some of the discussions I've read on this site suggest that illegal activity is ok as long as it is unlikely prosecution will even occur, but in our case where it is possible an investigation of copyright violations will occur we need to know precisely what is legal and illegal regarding this issue.

    Therefore my question is: is it legal to convert vhs tapes of a variety of material (documentaries, movies, television programs, sports broadcasts, etc) to dvd if the material is intended to be shown for educational purposes?
  • I'm at a conference this second, so here's a quick reply with the hope that someone chimes in soon-

    You won't be able to take advantage of any exemptions other than fair use if those DVDs are commercially available. The educational exemptions won't cover that type of use. Especially if you can buy the DVD. You'll need a fair use analysis.

    You'll probably also need to look at materials on a case by case basis.

    Illegal activity isn't ok- the problem is that whether or not a given activity is legal is questionable. That goes into your risk evaluation.

    I know of departments that have not gotten rid of their VCRs specifically because they believe that this type of activity probably isn't legal. YMMV.

    I'll try to get back to this when I get back to Austin.
  • Some of the discussions I've read on this site suggest that illegal activity is ok as long as it is unlikely prosecution will even occur
    Illegal activity isn't ok- the problem is that whether or not a given activity is legal is questionable. That goes into your risk evaluation.
    I'd like to expand on COvalle's comments because I've been involved in several discussions (not just online discussions) in which someone believed that I was advocating illegal activity. Fair use law is vague, and intelligent, knowledgeable people can arrive at different conclusions. One person may decide that an activity is a fair use and therefore legal while another might decide that the same activity is not a fair use and therefore a crime. Only a judge can determine which side is right. So, the person who believes that the activity is legal cannot be 100% certain without going to court and risking conviction. This person must now assess the risk involved which includes the likelihood of being detected, the chances of being sued, and the odds of being convicted. A person who determines that a use is fair according to the law and decides that the risk of being proven wrong is low shouldn't be confused with a person who chooses to commit a crime. I'm going to address the actual question, but I'm being interrupted a lot and I might not be able to respond until tomorrow.
  • Ignoring the copyright question for a minute, I'm not sure that it is a good idea to remove the VHS players. While it certainly makes sense from the classroom support perspective, I'm not sure that it makes sense from the university perspective. I'll go into more detail if asked.
    my question is: is it legal to convert vhs tapes of a variety of material (documentaries, movies, television programs, sports broadcasts, etc) to dvd if the material is intended to be shown for educational purposes?
    I cannot give you a simple yes or no. Your university needs to make a fair use determination on a case-by-case basis. You could try to do one fair use determination for everything, but I don't recommend it because I believe such a determination would be inaccurate. If you decide to do one fair use determination for everything, you should use material from a copyright holder who has a reputation for objecting and suing. Disney and George Lucas are good examples, if you have this kind of material in your collection. You do not necessarily need to do individual determinations for every single item. For example, an entire episode of 60 Minutes is probably just like every other episode of 60 Minutes and probably isn't very different from an entire episode of 20/20 or Dateline. If I were trying to do this, I would start by doing a fair use determination for a single item and then look for all the items that would have similar fair use determinations. If you search for fair use on this board, you will see many examples of fair use determinations. Fair use involves four factors, which I am paraphrasing. 1. Nature of use. In your case, educational. This factor clearly works in your favor. 2. Character of work. Usually interpreted as creative vs. factual. Will vary according to your material. 3. Amount used. I suspect that you are copying 100% of the original material. If so, this factor clearly works against you. 4. Market effect. This one is very tricky. Commercial copyright holders and organizations like the Copyright Clearance Center (which profits from assuming that uses are not fair uses) have aggressively promoted their point of view and created a culture where market effect is assumed to be significant. In my opinion, there is no market effect in your case, but I'm probably in a very small minority. In my opinion, you have two possible scenarios: convert to DVD if legal or keep VHS is conversion is illegal. I don't see purchasing DVD replacements as a viable alternative; if I'm right, then conversion does not replace a sale and therefore the market is not affected. There is no rule for balancing the four factors. I suspect that if I were in your situation, I would decide that many of your uses are fair. However, other people might not accept my market effect analysis or might place give more weight to the 2nd and 3rd factors. In any case, keep in mind that I am not in your situation; your university must make the determination. If your university determines that it is legal to convert the material, then you need to consider the risk involved. When considering risk, you should be aware of 17 USCA ยง 504 which includes the following: "The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was: (i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords."
  • I applaud AFry's comments about the difference between a reasoned assessment of risk and illegal behavior, and I would add two factors to be considered in the risk analysis.

    First, remember that section 504(c)(2) limits the damages for which an employee of a non-profit educational institution or library may be held liable if they had a sincere and reasonable belief that they were engaged in fair use but are found to be mistaken.

    Second, note that section 112(f)(2) specifically allows conversion to digital format for section 110 uses, but only when "no digital version is available to the institution." In many cases, in my opinion, the cost of purchasing a commercially marketed DVD to replace the VHS tape is low when compared with the staff time and worry involved in making the conversion in-house after considering all the circumstances in a fair use analysis.

    Remeber, as well, that digital conversion can only be justified, when it can be justified, if the original is a lawfully obtained copy. Some of the items you mention may be off-air copies onto VHS that might not meet this requirement.

    [personal note -- Citing all these section numbers reminds my of my copyright professor's frequent remark that understanding copyright is getting to be more and more like understanding the tax code. Ugh.]

    Added comment -- Please note that, in spite of the time stamp, my post was nearly simultaneous with AFry's second post, so I did not see that he beat me to the punch regarding section 504.
  • All right, I'm back in Austin! And others have given great responses. ^_^

    Alfred, I'm curious why you think removing VHS players is a bad idea. I think it is, too, but I wonder why you do.
  • I think the argument for removing the VHS players is weak. I have talked to people who wanted to remove VHS players, and their entire argument was an assumption that no one used VHS anymore. I'd be willing to get rid of the VHS players if I had a legitimate reason to believe that no one has used VHS for a long period of time. I'm not sure how long is long, but it's at least a year.

    If even a single teacher has used VHS recently, then the VHS players should stay unless the classroom support people can show a substantial cost to keeping them. Becasue they support the classrooms, the teachers get to make the decisions. So, if the support people can demonstrate a high repair to use ratio or a high cost of repair to use ratio, I'd get rid of the players.

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