Let's assume that the professor signed a contract
stating that he would not give the copy to anyone. He
would either maintain the copy in his personal
collection or destroy the copy, in exchange for having
reveived the copy. (Long way of saying "assume a
contract.")
He then gives the copy to the library with the
innocuous stamp that only warns against "resale."
Since no "sale" or "resale" has occured, the library
shelves the book for lending.
What has the library done wrong?
It has no notice that the possesor of the book did not
have good title to the book. It has not copied the
book or otherwise violated the rights provided the
copyright holder.
I honestly see no tort and no infringement. At best
the publisher may have the book destroyed, or reposses
the book. Further, the publisher may be able to seek
breach of contract damages against the professor. (I
understand that publishers are unlikely to do these
things, but RIAA is suing students so even the
unlikely can happen.) I am saying that the publisher
has no cause of action against the library, even if
you assume a contract. And that is a big assumption.
Keith
- Brock Shinen <brock[_at_]frenzellaw.com> wrote:
> On 8/25/03 8:15 AM, "Keith Tabor" <ket354[_at_]yahoo.com>
> wrote:
>
> > --- "Robert F. Bodi" <lawlists[_at_]bodi.com> wrote:
> >> I would think that the issue is whether the
> >> professor is really the "owner"
> >> of the individual work. I would think that the
> >> contract might be written to
> >> give some type of "loaner" right to the
> professor,
> >> and thus the true owner
> >> is still the publisher.
> >>
> >> -Bodi
> >
> > I agree from an issue spotting perspective, but
> where
> > is the contract?
> >
> > While shrink-wrap licenses may be debatable, I
> have
> > never heard that a stamp on the inside cover of a
> book
> > forms a contract. Maybe there was more in the
> letter
> > accompanying the book, but the issue is not
> between
> > the library and the publisher, the issue is
> between
> > the prof and the publisher.
> >
> > I don't see a real risk associated with the
> library's
> > acceptance of such copies because the existance of
> a
> > contract is questionable and the library is not
> the
> > party to any contract that may be found. Worst
> case,
> > the library has to remove the copy.
> >
> > keith
>
> Practically this makes sense - what would a
> publisher gain from suing the
> library. Legally, however, I'm not sure it does.
>
> Simply because a publisher is not likely to sue the
> library over a single
> book, doesn't mean the library and/or professor have
> legal rights to do what
> they're doing.
>
> If the professor is contractually prevented from
> doing what he did, then is
> the library really the lawful owner of the book? If
> the library isn't the
> lawful owner, does it really have the right to lend
> the book? If the library
> is fully aware of the limitations placed by the
> publisher on the book to the
> professor, it would have full knowledge of the
> breach of contract and
> resulting infringement, wouldn't it? Sure, the
> publisher may not sue, but
> that doesn't change the fact that the library's use
> of the book might still
> be infringing. The law assumes lawful acquisition of
> the book.
>
> Brock
>
>
>
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Received on Tue Aug 26 2003 - 00:14:35 GMT