From: "Dave Hansen, J.D." <[log in to unmask]>
Date: Mon, 28 Feb 2022 20:01:08 +0000

In terms of legality – copyright holders *can *put significant license
restrictions on downstream use (e.g., library loans), but efforts to do so
aren’t always effective.  The courts have developed a set of factors to
determine whether any given transfer of a copy constitutes a “sale” or
actually a “license.” If it’s actually a “sale” then the “first sale”
doctrine applies and copyright law doesn’t restrict further transfer,
lending, or sale.



For example, in *UMG Recordings v. Augusto,* UMG sent out promotional CDs
with the following text on a sticker that came with it:



*This CD is the property of the record company and is licensed to the
intended recipient for personal use only. Acceptance of this CD shall
constitute an agreement to comply with the terms of the license. Resale or
transfer of possession is not allowed and may be punishable under federal
and state laws. *



Augusto sold a bunch of these copies on eBay and UMG sued. The court said
that downstream distribution did not constitute copyright infringement in
violation of the license because the initial distribution constituted a
sale (transfer) of the CD, and therefore the “first sale” doctrine
applied.  Among the factors that the court looked at in that case were 1)
whether the license was designated as a “license”, 2) whether  the
purported license reserved title in the copy to the original owner, and 3)
whether it required eventual return of the copy to the owner. Ultimately,
it was looking for whether UMG still held “sufficient incidents of
ownership” to “sensibly be considered the owner of the copies,” or whether
in fact ownership of the CDs had been transferred.



In this case, the text that The Chronicle includes does call itself a
“license” but… it seems to me, that’s about all The Chronicle has going for
it to assert that these print copies are actually just “licensed” and not
sold to libraries. CHE isn’t otherwise asserting continued physical title
over the copies sold, or requiring eventual return of the copies, and
(aside from the restriction on distribution) isn’t making any other
meaningful restrictions on uses of the copies.


----

Dave Hansen

Lead, Copyright & Information Policy

Associate University Librarian for Research, Collections & Scholarly
Communications

Duke University Libraries

(m) 704-747-4314

Zoom: https://duke.zoom.us/my/davehansen







From: Susan Lafferty <[log in to unmask]>

Date: Mon, 28 Feb 2022 00:28:11 +0000

Thank Karin



Methinks it would be a sad day if we moved to this sort of licensing for
print.   Are we willing to refuse to purchase/licence/obtain such items.
I’d be inclined to suggest they go whistle.. – we can’t really afford to
cave in to this sort of precedent..



*Susan Lafferty*

Director of Libraries

Australian Catholic University



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