From: JJE Esposito <[log in to unmask]>
Date: Tue, 22 May 2018 21:36:07 -0400

Of course, I have not seen the Cengage contracts, but I would be surprised
if they called for "works for hire." These are author-driven books, not an
assemblage overseen by the publisher (as in reference works). But without
seeing the contracts, we cannot know.

As for lawyers not anticipating a new usage, that's a common phenomenon. I
can think of dozens of examples. Whoever thought that textbooks would be
sold for fixed-price subscriptions for an entire aggregation ten years ago?
No one talked about "Netflix for books" until we had Netflix.

Joe Esposito

On Tue, May 22, 2018 at 8:55 PM, LIBLICENSE <[log in to unmask]> wrote:

> From: SANFORD G THATCHER <[log in to unmask]>
> Date: Tue, 22 May 2018 00:54:59 -0400
>
> What's confusing to me here is the authors' demand that Cengage ask their
> permission to include their textbooks in the subscription model. My
> understanding is that textbooks are created as "works made for hire," which
> means that the publisher owns the copyright, not the author(s). So on what
> grounds are the authors demanding that Cengage seek their permission?  It's
> unfortunate that the article Jim linked to does not stipulate or cite what
> term(s) of the contract are under dispute. Cengage obviously believes that
> its
> contract does give it authority to include the textbooks in this service.
> I'd
> be surprised if Cengage's lawyers did not write the contract in such a way
> as
> to make this subscription service possible to implement in the way it has.
> But
> I guess we'll have to wait and see how a court looks at the dispute.
>
> Sandy Thatcher
>
>
> On Mon, May 21, 2018 11:48 PM LIBLICENSE <[log in to unmask]> wrote:
> >
> >From: "Jim O'Donnell" <[log in to unmask]>
> >Date: Mon, 21 May 2018 20:02:10 -0700
>
> >
> >​Joe, that's helpful clarification (inclusive access one thing,
> aggregation
> >another).
> >
> >I said and say that libraries will be pressed to take a role in mitigating
> >the perceived problem with the price of textbooks.  But I will also say
> >that complaints that goods and services in these sectors are too costly
> >often seem to me to mask other problems.  After all, they (price of health
> >care, drugs, journals, college tuition, college textbooks) wouldn't be so
> >pricey were it not for the fact that plenty of people are paying the
> >price.  Our first-order concern is usually that someone whom we think
> >should have access to the good or service can't afford them.
> >
> >But other things are going on.  To take just this sector, the role and
> >function of the classic textbook has evolved and it's not clear that the
> >expensive textbook propagates because of an intelligent view of their
> >pedagogical effectiveness.  Show me a bigger, shinier, better illustrated,
> >more comprehensive book than the one I've been using and I, the average
> >faculty member, am not unwilling to think that perhaps I *should* make it
> >available to my students -- and that's where your point about the assigner
> >isn't the payer is important.  The best work I know to attack the price
> >problem is really attacking the pedagogy problem:  what do students really
> >need in order to succeed?  Something they will actually use and benefit
> >from is more helpful than 800 lavishly illustrated pages.
> >
> >My point here is just to say that prices and the ensuing economic
> >adjustments are an interesting set of phenomena.  But they shouldn't blind
> >us to what are actually harder problems to solve.
> >
> >Jim O'Donnell
> >ASU
>