RE: "Do not sell to schools" and copyright

Tyler is saying exactly what I want to hear, which makes me cautious.

So I'd like to be more specific about my interest in this thread.

Many readers of this list may not be aware that academic libraries are routinely charged an "institutional subscription price" for scholarly journals that is as much as 10 times the "individual subscription price"
(e.g. $70/year for a professor but $700/year for his/her library).

Libraries tend to purchase periodicals through a third company (which we call a "jobber", like EBSCO or SWETS) that handles not only our payment/renewal paperwork but also handles for us the various "claims" we
need to file for issues that don't arrive.

I have generally considered that in the absence of an explicit clause in the
journal subscription terms (like the Journal of the American Chemical Society one I mentioned in my earlier posting), that the only reason libraries have put up with this outrageous price discrimination is because
the labor cost to us of processing so many serials (and claims) directly with publishers is actually higher for most libraries with hundreds or even
thousands of subscriptions than just paying the institutional price plus the
jobber's fees.

But in the last 10-15 years, some for-profit publishers of scholarly journals have gotten, well to speak subjectively, greedy, and increased institutional pricing far above the inflation rate, year after year after
year, causing libraries with modest-to-none budget increases to face a genuine crisis. (Everyone on this list knows already about the monopoly pricing power inherent in copyright law; that power exists to the hilt in
the domain of scholarly publishing.)

I thought that in theory and in the absence of an explicit publisher restriction, libraries could, if they were willing to do all that extra work
title by title, get individual subscriptions in the names of, for instance,
individual librarians, and pay just the individual price. With prices so high in the last few years, this might finally have become a cost-effective
option for some titles.

Am I wrong? Is there actually a serious legal ground (rather than administrative cost one) behind why libraries do NOT just pay for their subscriptions individually to their librarians?

Thanks for any advice, even IANAL advice!

Melissa Belvadi

-----Original Message-----
From: Tyler Ochoa [mailto:tochoa[_at_]law.whittier.edu] Sent: Thursday, March 27, 2003 11:00 AM
To: cni-copyright[_at_]cni.org
Subject: RE: "Do not sell to schools" and copyright

>>> tscott[_at_]uab.edu 03/26/03 07:45AM >>> wrote: Bear in mind that IANAL, but this is the way that I trace it: The first
sale principle does indeed give a purchaser the right to do whatever they want with a book or video or journal that they have legitimately acquired. The issue of "fraud" is introduced when the purchaser misrepresents themself to the seller. The FindLaw Legal Dictionary defines fraud as: "any act, expression, omission, or concealment calculated to deceive another to his or her disadvantage"
(http://dictionary.lp.findlaw.com/) Thus, if my intent in purchasing
something at the home price (or the individual price) is to evade the higher institutional price, I am deceiving the seller to their disadvantage. On the other hand, if I bought an item with every intention of using it for my own purposes and then, sometime later, I decide that rather than throwing it away after I'm done, I'll donate it to a library, I'm fine, because I did not misrepresent myself to the seller when I made the purchase.
<<<<<

But even in the first situation, there is a serious question as to whether any misrepresentation occurred at all. If I simply order a video from (say) an online video seller, pay money and receive it in the mail, I have made no representation whatsoever about my intent. The fact that I am aware that the vendor charges higher prices to schools doesn't by itself make my act fraudulent. Only if the vendor requires the purchaser to affirm that he/she will use the video only for home use does your analysis apply, in my opinion.

In the law, a distinction is sometimes made between an express misrepresentation and a deliberate omission of material information. The latter is unlawful only if the circumstances give rise to a legal duty to disclose; this usually occurs when there is a relationship between the two parties that requires more than an arms-length transaction
(e.g., a fiduciary relationship). Thus, it is far from clear to me that
the purchaser has any legal duty to disclose what his or her intent is with regard to the video. However, this legal duty could differ from state to state, and would require research into the laws of a particular jurisdiction. [Whether there is a moral duty depends on your view of the morality of the dual-pricing scheme itself.]

>>>>>
Think of it this way -- a movie theater has the right to charge differentially for senior citizens or for kids under 12. If I misrepresent myself as being in either of those age groups when I'm actually not, I'm fraudulently deceiving the theater owner. <<<<<

I agree with the second statement; but I'm not sure about the first. My understanding is that differential pricing based on age is technically illegal, but that nobody bothers to enforce it because the remedy would be to raise everyone's price to the regular adult price. But I must admit I have only a vague recollection and may very well be incorrect. Any consumer rights attorneys on the list?

Tyler T. Ochoa
Professor and Co-Director
Center for Intellectual Property Law
Whittier Law School
3333 Harbor Blvd.
Costa Mesa, CA 92626
(714) 444-4141, ext. 243
(714) 444-1854 (fax)

tochoa[_at_]law.whittier.edu Received on Fri Apr 04 2003 - 03:04:22 GMT