[CNI-COPYRIGHT] Re: [CNI-COPYRIGHT] "Do not sell to schools"and copyright

>>> murphy[_at_]panix.com 04/08/03 12:13AM >>> wrote: 'Twas brillig when Tyler Ochoa scrobe:
> I would agree that in the fact situation you posit, checking the
> "individual use" box would be an express misrepresentation. Your
fact
> situation is you are presented with a choice of two rates, and you
> choose one. That is an express representation, and probably creates
an
> implied contractual promise of personal use as well.

Has First Sale been completely abrogated? If I, as an individual, legally acquire a copy, I may dispose of it as I wish. If I choose to resell that copy to an institution for lending, that is my business and none of the publisher.
<<<<<

That is a generally correct but oversimplified statement of the law. It skips over several complicated legal issues:

1. Did you acquire it legally? If you obtained it only as a result of an agreement to use it for personal use only, and you had no intention of performing that agreement, that is fraud, which may negate the legality of the purchase.
2. Even if you acquired it legally, you may have done so together with a contract in which you promised to use it only for personal use. The questions are then whether a contract was formed; whether it is enforceable as a matter of public policy (state law); and whether it is preempted by federal copyright law (first sale doctrine). This is the shrink-wrap license issue, and we know that courts have reached different conclusions as to the enforceability and preemption questions in that context. I am of the opinion that such a contract should be considered preempted, but the legal issue is far from settled; there are conflicting precedents.

The problem here is that people on the list want a "one-size-fits-all" answer to the question, and there isn't one. It is very fact specific. If I buy a video from, say, Amazon, with no implied or express representations as to its use, I can donate it to a school under the First Sale Doctrine with no legal impediment, even if I am aware that other distributors would charge a higher price to sell the same video to a school. But if an employee of the library subscribes to a journal, mispresenting himself or herself as acting in an individual capacity, and the contract includes an express or implied promise to use the journal only for personal use, and the employee then systematically places every issue in the library in violation of that promise, I think most courts would find that to be unlawful, and not preempted by the First Sale Doctrine. And then there is a wide range of conduct in between. In addition, while contract and fraud laws are generally similar from state to state, the details can differ.

It's a basic question, but it doesn't have a simple answer. The lack of simple answers may create a chilling effect, or it may lead to open disregard for laws which cannot easily be enforced. I'm sure most of us would prefer clear answers, but there isn't a societal consensus, so we muddle along with case-by-case adjudication until the courts reach a consensus for us, which can take decades. Lawyers learn to live with this kind of uncertainty; non-lawyers can too.

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 Thu Apr 10 2003 - 08:03:47 GMT