From: Susan Lafferty <[log in to unmask]>
Date: Thu, 3 Mar 2022 06:08:30 +0000

We have added a sentence to our Collection Development Policy:



*‘**The library will not purchase print material that requires a license or
has limits on usage beyond the Copyright Act.’ *



i.e. Australian copyright act.



Best wishes

Susan



 From: Karin Wikoff <[log in to unmask]>

Date: Wed, 2 Mar 2022 11:06:28 +0000

We take no position on what individuals do with their own money.  We are
saying our library will not license print materials.  Here's our draft
language so far (still working on a final form):


"The Ithaca College Library complies fully with all provisions on the U.S.
Copyright Law and its amendments.  The library strongly supports the Fair
Use section of the Copyright Law (17 U.S. § 107), which permits and
protects citizens’ rights to reproduce and make other uses of copyrighted
works for the purposes of teaching, scholarship, and research.  The library
also strongly supports the First Sale doctrine of the Copyright Law (17
U.S. § 109), which provides that “an individual who knowingly purchases a
copy of a copyrighted work from the copyright holder receives the right to
sell, display or otherwise dispose of that particular copy, notwithstanding
the interests of the copyright owner.”  (U.S. Dept. of Justice).  The
library will not license print materials or sign away Fair Use or First
Sale privileges for them."



(The first part about Fair Use already existed in our policy; the rest is
the new draft).



I don't know if the publisher is hoping their policy will deter libraries
from buying the materials in an attempt to force more individuals to shell
out for their own copies, but even if that is the case, it does not change
our position -- that it is wrong to roll back First Sale.  That is where we
draw the line, in part because we can't realistically support a new
category of physical books, each with its own set of anti-copyright
restrictions.



If our position falls in line with a publisher strategy to squeeze more
profits out of other customers, that stinks, but it's not something over
which we have any control.



What is the alternative?  That we cave in and voluntarily give up First
Sale?  Not here.



My opinions,



Karin



P.S.  If anyone has a better, more clear, and more recent quotation
describing the rights that come with owning a physical book under the
doctrine of First Sale without getting sidetracked into a discussion of
sound recordings, let us know!




------------------------------

From: Darby Orcutt <[log in to unmask]>

Date: Tue, 1 Mar 2022 08:44:32 -0500

Colleagues,



There are, as noted in this thread, more than enough pragmatic reasons
alone for a library to not agree to this sort of license (management of an
unusual sort of print item not the least of these), but I suspect that *CHE*
is perhaps licensing in this way in order to actively deter library
purchases (without the appearance of outright banning library sales). They
are clearly interested in selling library and other subscriptions as well
as monetizing this select content on top of those revenues. Libraries not
purchasing these particular items would seem exactly what they want,
especially if another customer (or multiple customers) at the same
institution are purchasing instead, and there is no disruption to their
subscription revenues.



For those who are suggesting that their library is taking a stand against
this model, are you advising campus partners to do so as well, or just
acting as a library unit? Are you refusing to purchase any *CHE* content,
or just the individual items licensed in this way?



Thank you,

Darby



Darby Orcutt

Assistant Head, Collections & Research Strategy

NC State University Libraries







On Tue, Mar 1, 2022 at 12:23 AM LIBLICENSE <[log in to unmask]> wrote:

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
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