Re: Re: complementary copies of text books

• Original Message ----- From: "Brock Shinen" <brock[_at_]frenzellaw.com> To: "CNI-COPYRIGHT -- Copyright & Intellectual Property" <CNI-COPYRIGHT[_at_]cni.org> Sent: Monday, August 25, 2003 3:30 PM Subject: [CNI-(C)] Re: complementary copies of text books

> 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.

The copy is certainly authorized (it was given by the publisher), so it would appear that, at most, the library would have to give up its copy. I don't see a case for infringement here. Only a breach of contract. Copyright requires some violation of copyright, and I don't see it. The library has an authorized distribution, it just wasn't supposed to go to anyone but the professor. The professor probably could have loaned it out himself without problem.

Anyway, under such a fact pattern, no court is going to force the library to pay any substantial damages. Thus, the issue is merely academic.

-Bodi Received on Tue Aug 26 2003 - 19:28:11 GMT