From: Karin Wikoff <[log in to unmask]> Date: Tue, 1 Mar 2022 12:26:36 +0000 Thanks, Kevin and Dave, for the additional legal explanations. I understand that in most cases, contract law trumps copyright law -- so if you sign a contract agreeing to give up the First Sale privileges, then that's that. So -- just don't do it. My point is that it is outrageous for the CHE to ask us to do that -- to license a physical book (sound and video recordings aside) in such a way as we sign away those long-standing privileges. I am not suggesting that what they are doing is illegal, but rather that it is ethically crummy (not a legal term!) and libraries should push back. Dave -- Here's how they are asserting further post-payment-and-delivery control over the objects. When asked if we could sell it later, we were told we could not. When asked if we could lend them on ILL, we were told we could not. When asked if we could even DONATE them, we were told we could request permission, pending their approval of the recipient. There are even some conditional restrictions on photocopying. We had not asked the question -- What if we broke this contract? What if we sent it out on ILL anyway, sold it to Better World Books, or donated it to another library that couldn't afford their own copy? (Setting aside -- how would they know?) Would they sue us? Would they demand their book back? These actions would seem to be within their rights under the contract. What is the point of putting a license on a book unless it is explicitly to restrict privileges that normally come with the purchase and ownership of a physical object? It's rubbish; Just Say No. My opinions, Karin ------------------------------ 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 <https://nam10.safelinks.protection.outlook.com/?url=https%3A%2F%2Fduke.zoom.us%2Fmy%2Fdavehansen&data=04%7C01%7Ckwikoff%40ITHACA.EDU%7Cfdc9c3fb746947eceb3c08d9fb43a469%7Cfa1ac8f65e5448579f0b4aa422c09689%7C0%7C0%7C637817090351823256%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000&sdata=Gt8XdjD9%2FeYw7G8LCNLaVSYtpilXkTKJ1t66s5m5VIM%3D&reserved=0>