I hope I didn't give the impression that I thought the strategy was
without risk, especially if you live within the Seventh Circuit
(Illinois, Wisconsin, Indiana), which is dominated by judges from the
"law and economics" school of thought at the University of Chicago. In
ProCD v. Zeidenberg (7th Cir. 1996), the court upheld a shrink-wrap
license which limited the product sold (a database) to personal use.
The seller charged a higher price for for commercial users. The court
went on and on about the virtues of such price discrimination, and
upheld the shrink-wrap license; and held that the it was not preempted
by the Copyright Act.
I think the Court got it wrong; and I certainly would be pleased to see libraries challenge the price discrimination policies of publishers. But there is certainly a risk that if one is aware that the publisher charges a higher price to institutions, and one buys the magazine as an individual with the intent of circumventing that higher price, a lot of judges aren't going to like that. Remember, the publisher figures that a library copy is going to be read by at least ten people, so it's fair to charge ten times as much. My guess is that a lot of judges would agree with that, even though the legal basis is tenuous.
At the risk of being repetitive, let me repeat the final thought from my last message: "this legal duty could differ from state to state, and would require research into the laws of a particular jurisdiction."
In light of the uncertainty in how the law would be applied, I think it is risk-aversion, as much as anything else, that keeps libraries from challenging publishers' practices in this regard. No one wants to be the test case. But without a test case, it will be difficult to get a clear answer to your question.
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
>>> mbelvadi[_at_]maryville.edu 03/29/03 01:06PM >>> 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
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Received on Fri Apr 04 2003 - 09:42:35 GMT
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