From: Kevin Smith <[log in to unmask]>
Date: Fri, 21 Feb 2014 01:55:29 +0000

We should be a little careful here.  In regard to the UCLA v. AIME
case, the Court did make a ruling interpreting a license, but it did
not involve fair use.  The court did not actually rule on the fair use
argument, since it dismissed the case on the grounds that AIME did not
have standing.  The court said that the fair use argument was
"plausible," but did not actually rule on it.  And there was nothing I
can recall that would reflect on the relationship between fair use and
a license.

My opinion is that a license can restrict fair use, but it must be
quite explicit to do so.  The mere existence of a license does not
trump fair use, but it's specific wording might.

As for the original message about contracts and first sale, the claim
described is very odd.  Early in the 20th century the Supreme Court
ruled that even a statement printed in a book could not trump first
sale. I think the same presumption would apply to a retrospective
attempt to revoke first sale.  Once the print book is bought, the
buyer has the right to lend or resell.  I am doubtful that a court
would enforce a retrospective effort to limit those rights, and if a
vendor tried to do it I would insist that they take those print copies
back and refund the purchase price.  But really, I think someone has
misinterpreted the agreement.  I hope so, because otherwise it is an
outrageous and dumb idea.

Just to be clear, as with fair use, a contract could limit first sale,
but it would have to be explicit and, I believe, signed as part of the
purchase transaction.  There have been a few attempts to sell books
with an agreement that forbade lending.  If someone were foolish
enough to accept such conditions on a purchase, they might, in my
opinion, be enforceable. But a
library could never buy printed material on that basis.

Kevin L. Smith, J.D.
Director of Scholarly Communication
Duke University Libraries
P.O. Box 90193
Durham, NC 27708


> On Feb 20, 2014, at 20:23, "LIBLICENSE" <[log in to unmask]> wrote:
>
> From: Todd Puccio <[log in to unmask]>
> Date: Thu, 20 Feb 2014 17:05:43 +0000
>
> Some folks believe that the ruling in the AIME v. UCLA videostreaming
> case sets a precedent that Fair Use will be upheld even if license
> terms are in place.
>
> Thus saying that a license can't trump Fair Use.
>
> https://www.google.com/search?q=video+streaming+case+against+UCLA+&ie=utf-8&oe=utf-8&aq=t&rls=org.mozilla:en-US:official&client=firefox-a
>
> Todd Puccio
> Director of Technical Services / Librarian
> Nova Southeastern University
> Health Professions Division Library
> Ft. Lauderdale, FL 33328
> [log in to unmask]
>
>
> -----Original Message-----
>
> From: Collette Mak <[log in to unmask]>
> Date: Wed, 19 Feb 2014 08:08:37 -0500
>
> Contract law trumps the doctrine of first sale.  If anyone signs a
> contract agreeing to the terms of the sale including giving up some of
> what would be the normal rights that transfer through a sale then
> those rights are gone. This is particularly concerning to me because
> we've seen a recent instance where a well-known business publisher
> suggested that the terms of their licensed electronic content also
> applied to the print copy on our shelves.   Full disclosure, I did not
> see the document myself, I learned of it through a call from a branch
> library asking if it were possible for an electronic license to also
> restrict use of print copy that had been in the collection for
> decades.  With the usual "I am not a lawyer" caveats I said no, unless
> we had signed new terms wherein we had agreed to restrictions on use
> of the print then it was bluster.
>
> Collette Mak
> [log in to unmask]