Too many people get wrapped up with the- or are too concerned with the technology involved with what they're using when they try to determine whether their use is allowed under copyright law. Media and format, the type of technology that you're using doesn't matter. The copyright question is always what are you doing with a work? How are you using a work? For example, on of the rights of the copyright owner, of course, is to reproduce the work. If you make a copy of a work, it doesn't matter whether you are photocopying it or scanning it or actually even copying it by hand, if you make a copy, you make a copy.
It's easy to get wrapped up in concerns about technologies because, honestly, because the law is so far behind, technologically, so far behind with technology. I have people ask me questions like, "Can we use YouTube in the classroom?" Well, that doesn't tell me anything about what you're doing. Are you using YouTube to show movies or you're having your students create something to post on YouTube? Is it a closed channel? Is it opened to the whole wide world? It's not about the tool; it's about what you're doing with it.
I believe that the courts in a way have contributed to some of this confusion. The issue of transformative use under the first factor of the fair use analysis has become really popular in the changing technological environment and it has been widely misunderstood, though. I think people are starting to come in line on this. The court case that really defined transformative use and remember that a use that is transformative favors fair use; that's only one factor, it doesn't mean that if your use is transformative it's definitely fair, but that means that the first factor will favor a fair use. The Supreme Court case that defined transformative use involved a parody and it was two live crews making a parody of Roy Orbinson's, "Oh, Pretty Woman" and they used the same music but changed the lyrics dramatically and said that their parody—as a parody is—was a social commentary on the idealistic version of love and beauty put forth in Roy Orbinson's song. Therefore they were using the song in a different way, using it in a different way than Roy Orbinson had used it. Certainly their song was also meant to be entertainment as was Roy Orbinson's, but the reason they used his song was to make a statement about something about that song.
At the same time they transformed the song as in- they transformed the use right there but they also transformed the song itself because they made it into a rap version and they changed the lyrics. So that started us out on a road of confusion. Well, the courts have clarified over the 20+ years since that decision that transformative use is just as it says about the use of a work, not about transforming the work itself. So one of my most popular questions from K-12 is, "Can we digitize our VHS tapes?" and sometimes in the context of that someone will say, "It's transforming the work because it's changing the media or the format." And so my response is it doesn't matter if you transform the work, the question is, is your use transformative?
That's the question under fair use. The specific answer to that VHS to digital question is—as i started off saying—you're making a copy, it doen't matter that it's in different media or formats, you're making a copy. In some cases that copy might be allowed under the section 108, exemptions that allow making copies for preservation purposes, but there are some limits on how many copies and how those copies can be used, so you have to be careful about that. It may be- depending on your situation- that copying from VHS to digital would be allowed as a fair use but you'd have to go through the fair use analysis, but I give you that just as an example of how frequently this transformative use issues is misunderstood and relied upon erroneously.
Just remember, media and format don't matter, the question is, does what you want to do fall under one of the rights of the copyright owner to reproduce, make derivatives, distribute to the public, publically perform or display and if it does, can you do it under one of the statutory exemptions or as a fair use? Media and format just really don't matter.
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