A Declaration of VHS Independence

[Author’s note: At last December’s Association of Moving Image Archivists conference in Seattle, Rachael Stoeltje graciously asked me to write a guest blog for IU’s Media Preservation Initiative about the Video At Risk project currently underway at NYU. Feeling a little overly-jingoistic, I did so on Inauguration Day 2013. In lieu of focusing on reformatting analog Special Collections materials, though, I wanted to democratically spotlight the huddled masses of circulating magnetic media in need of media preservation attention at libraries across the country.]

A Declaration of VHS Independence

When in the Course of human events did it become necessary for you to last think about VHS?

Maybe it was at the Berkeley Flea Market, when you stumbled on that incredible $1.00 bargain bin of magnetic media ‘rust-soup’ riches. Perhaps cleaning out your parents’ attic, as you neatly pocketed a quick $0.25 per title by unloading tapes to a used bookstore chain like Tennessee’s McKay’s or the Texan Half Price Books. Or, say, on vacation in Mexico at any number of bootleg puestos hawking ‘CLON’ DVD-R rips of out-of-print and New Release titles.

The author searching for new, unused, replacement copies in Mérida.

Howard Besser: media preservation professor and Love Guru.

For circulating media collections staffers at libraries  VHS may be thought about less infrequently. There, contemplating VHS is less an act of consumptive capitalist curiosity than one of apocalyptic denial and/or, intractable procrastination.

TAXATION WITHOUT DIGITIZATION

The fact is that the circulating VHS holdings of most larger, university, and research-scale libraries still give DVD holdings a run for their money in terms of size and annual checkout counts. As an example: New York University’s Avery Fisher Center collection contains about 15,000 VHS titles and 27,000 DVDs. Circulation for VHS titles in 2011-2012 numbered 4,371. Students, professors, and researchers are still rampantly watching content on VHS despite the fact that the format is no longer manufactured or commercially used as a means of distribution, and that no new standalone VCRs are being manufactured.

Such has been the patient sufferance of circulating video in libraries; and such is now the necessity which constrains them to alter their former Systems of Government. The truths should be self-evident that such hitherto practices are unsustainable, unproductive, unacceptable, uncool.

These practices persist because authorized replacements for content originally held, and acquired, on VHS, are unavailable on subsequent formats. As both a matter of practical facility and law-abiding best practice, media librarians will prefer to purchase replacements than to create their own. However, as research conducted through the Andrew W. Mellon Foundation-funded project, Video At Risk: Strategies for Preserving Circulating Video Collections in Libraries, reveals, among the VHS titles WorldCat databases indicate NYU-Libraries holds the exclusive institutional copy of, over 1/3 are unavailable for replacement in the commercial marketplace.

MEDIA PRESERVATION IS THE LAW OF THE LAND

The history of the present fear of unauthorized digitization is a history of repeated timidity, ignorance, and neglect, all having in direct causality the Tyrannical unwillingness to invoke lawful rights granted to these collections of material by the United States Copyright Act. To rectify this, let Facts be submitted to a candid world about the lawful rights of libraries and archives to make copies of their commercially produced VHS videotapes.

Firstly, the United States Congress—that entity which maketh the laws of the land—firmly believes in media preservation. During the rewriting of Copyright Law in the mid-1970s, in H.R. Rep. 94-1476 at 73, under the heading “Reproduction and uses for other purposes,” Congress stated:

“A problem of particular urgency is that of preserving for posterity prints of motion pictures made before 1942. Aside from the deplorable fact that in a great many cases the only existing copy of a film has been deliberately destroyed, those that remain are in immediate danger of disintegration; they were printed on film stock with a nitrate base that will inevitably decompose in time. The efforts of the Library of Congress, the American Film Institute, and other organizations to rescue and preserve this irreplaceable contribution to our cultural life are to be applauded, and the making of duplicate copies for purposes of archival preservation certainly falls within the scope of ‘fair use,’.”

Aside from the myriad context-specific ‘fair use’ Section 107 justifications for making copies of endangered material on VHS, Section 108 (c) explicitly provides this right to libraries and archives:

“(c) the right of reproduction under this section applies to three copies or phonorecords of a published work duplicated solely for the purpose of replacement of a copy or phonorecord that is damaged, deteriorating, lost or stolen, or if the existing format in which the work is stored has become obsolete, if –

(1) the library or archives has, after a reasonable effort, determined that an unused replacement cannot be obtained at a fair price; and

(2) any such copy or phonorecord that is reproduced in digital format is not made available to the public in that format outside the premises of the library or archives in lawful possession of such copy.

For purposes of this subsection, a format shall be considered obsolete if the machine or device necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.”

(c): WHAT THEY MEAN?

Prosecuting lawyers will argue that the availability of VHS/DVD combo decks negate VHS from qualifying as “obsolete,” even though that marketplace reality could all change, like tomorrow. But, it is near-incontrovertible that VHS tapes are deteriorating from the perspective of human-perceptible visual and audio quality (even if only modestly so), and—as Video At Risk testing has documented—from those perspectives when assessed using laboratory-measurable original manufacturer quality control metrics such as dropout counts, signal-to-noise ratios, and frequency response. Yes, your VHS tapes may currently only be arguably “obsolete,” but they are definitely “deteriorating.” [Pro tip: It might help, here, to remember the demeaning stink-eyed look your colleagues in Special Collections gave you when you told them about the regular practice of loaning out a VHS tape of material no longer available anywhere else.]

STEPS: (1)

So, go ahead and make the effort to look for an “unused” replacement. Thou shalt document thine search for posterity. A used copy is not unused and, thus, does not qualify as an “unused replacement.” A different edited version, new restoration, CGI-revamped director’s cut, limited-time-only stream, or a region-restricted bootleg VCD from Turkmenistan could all be good examples of options that fall short of qualifying as a functional “replacement” for your VHS tape.

Libraries probably already have a good sense of where they would normally look for a replacement, and those outlets—likely, various nationalized Amazon domain names (eg, “.com”; “.ca”; “.co.uk”), A/V community list-servs, and a healthy search engine foray—will be considered as constituting a “reasonable effort.” All the more so, if well-documented with notes on search-time exerted per title, and in compliance with some kind of formally written institutional replacement search policy statement. [NB: Hey! Maybe get to work on a one-page formally written replacement search policy statement for your institution?] Checking with online Secretary of State business registries for addresses as to the whereabouts of disappeared original distributors, along with a letter of inquiry for replacement copy availability, can only stoke the friendliness quotient of your annual eggnog-y Christmas Party  conversation with your institution’s legal counsel.

Determine what a “fair price” is for your institution. Maybe $300 for a 10-minute video art DVD replacement copy isn’t a “fair price.” And, unlike the universe of Kenner-brand original Star Wars figurines, the collector’s-item dollar value that a scarce, unopened video replacement may have accrued isn’t necessarily going to be “fair.” Copyright case law on the books even says so.

STEPS: (2)

Let’s skip ahead a bit, to the point where you’ve made your digital copy (**record scratch**). Don’t worry, we’ll come back to the digitization process. But with digital copy figuratively in hand,  you’ll want to be careful to not run afoul of making it available to the public outside the premises of the library. Because U.S. Copyright Law was written in the twentieth century, this stricture is a little hazy and contentious in-practice, so I will refer you to the series of detailed, easy-to-use, “Copyright Guidelines,” which the Video At Risk project has recently released. They can best answer specific questions related to policy-making at your institution.

DIGITIZE

The technical specs are a subject too lengthy to go in to detail in this post, so Video At Risk is currently revising drafts of a technical guide to digitizing analog videotape, to be made available to the wider library community this summer. Whether the decision is made to work with a third-party vendor (as libraries often do), or to build the capacity for videotape reformatting in-house (a more cost-efficient, yet expertise- and labor-reliant option IU and many of my fellow bloggers’ institutions have undertaken), the time to do it is definitely now.

// Walter Forsberg, New York University Video at Risk Project