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

'Twas brillig when Tyler Ochoa scrobe:
> >>> murphy[_at_]panix.com 04/08/03 12:13AM >>> wrote:
> 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.

I am quite concerned about contracts attempting to negotiate away rights guaranteed by Federal Law. I am especially concerned about contracts of adhesion attempting to do such. Further up in this thread, it was opined that there might be an *implied* agreement. I don not believe that implied contracts can abrograte explicit Federal rights.

What is next? Credit contracts in which you sign away your Federal rights to bankrupcy? We've already lost the right to jury trial in credit-related disputes.

> 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.

Well, there is. If you represent a library and you consider the current practice unconscionable, then perhaps you should circumvent it and fight it out in the courts. But, absent explicit guidelines in the law about what is permissable and what is not permissable, there will always be considerable uncertainty about what is legal and what is not.

Fair Use, as it currently stands, is a law that only a judge could love. There are four factors which need to be taken into account. One of them counts more than the others but is not, in itself determinative; yet people are supposed to act legally under such a regime.

> 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.

Because I believe that the recent trend in law is to allow practically any right to be contracted away in an economic transaction. Luckily, I still can't sell myself into slavery, but I wonder about the future..

-- 
Roy Murphy      \ CSpice -- A mailing list for Clergy Spouses
murphy@panix.com \  http://www.panix.com/~murphy/CSpice.html