Re: use of electronic materials

I apologize for not making my point as clearly as I might have. I agree with Glen Tenney that much electronic material, especially computer programs, is distributed in a way that might lead one to conclude that it is sold, especially in a consumer context. My point was rather that electronic materials allow distribution without sale, precisely as in the Mead Data and Dialog examples that Glen adduces.

In the case of material which is distributed in this way through online access, there is a major change that could not be accomplished in the case of hardcopy sale. If a library purchases access to a database for its patron rather than purchasing the data in hardcopy, it is then probably foreclosed by its contract with the database service from furnishing the information to another patron. Online distribution thus defeats the effects of the first sale doctrine which is embodied in section 109(a) of the current Act. The effect of this may not be all that great at the moment, but I remember discussing distribution of electronic materials with the chief executive officer of one large publishing house who asked all on his own, "Why shouldn't I just have the patron dial up and pay me direct, without having to worry about going through a library?"

Fair use will be difficult without access.

Nick Finke
University of Cincinnati College of Law
finkend[_at_]ucbeh.san.uc.edu
(513) 556-0103 FAX (513) 556-6265 Received on Tue Sep 28 1993 - 17:40:55 GMT