RE: SPAM: Penalty for Posting Article on Faculty Website

["John T. Mitchell" <John@xxxxxxxxxxxxxxxxxx>]

Because every work of authorship is unique and subject to differing
consumer demand, there should never really be a "going rate" for any
such permission.  But here are a few angles on how to think about it.  

1.  If the amount requested is less than 2-3 hours of your attorney's
time, you've got a terrific bargain in light of the potential down-side.

2.  If it is less than the maximum statutory rate, it is not objectively
unreasonable for the author to ask for up to $30,000 (assuming it was
not "willful"), but considering that the court could award as little as
$750 (or reduce it to $200 if the faculty member proves it was a truly
good faith act), is may be subjectively unreasonable to ask for anything
more than the minimum, depending upon the total circumstances.  If the
author is asking for more than $200, then bargaining down to the lowest
statutory rate might be a good approach.  (If the author is asking for
less than $200, see 1, above.) 
3.  Ask the faculty member the following question:  If the university
gave you a spending allowance of $150,000 per year that you could spend
any way you wanted for any academic purpose, how much would you have
been willing to reproduce and publicly display the article?  That's what
it's really worth.
4.  What did the commercial site pay for the right to reproduce and
publicly display it? 
4.  If none of those yield a workable answer, consider whether a
non-cash benefit would make the author happy.  For example, would the
author gain more from you posting a mea culpa on the faculty member's
website, along with a pointer to the location of the author's choosing
(plus a little metadata to help drive traffic)?

Good luck.

John

>  -----Original Message-----
>  From: Herb Safford [mailto:herb.safford@xxxxxxx] 
>  Sent: Wednesday, March 24, 2004 12:31 PM
>  To: digital-copyright@xxxxxxxxxxxxxx
>  Cc: HERBERT D SAFFORD
>  Subject: SPAM: Penalty for Posting Article on Faculty Website
>  
>  
>  Greetings!
>  
>  A university faculty member posted on his web site a short 
>  article [not a pointer to the article] which he had found 
>  published on their website by a commercial firm [by 
>  subscription - not clear whether they charge for 
>  subscriptions].  The author of the article, whose permission 
>  to publish on our faculty member's web site had not been 
>  sought or granted, discovered this posting, and has asked 
>  for reimbursement for what she believes to be a violation of 
>  her copyright.  [Following notification by the author, the 
>  faculty member removed the item from his web site.]
>  
>  The questions we face now are:  1] the legitimacy of her 
>  request for payment, and 2] the fairness of the amount she 
>  requests in compensation for this violation of her 
>  copyright.  So far as we can tell, she is correct that her 
>  copyright was violated.  That being the case, we are 
>  inclined to be responsive to her request for compensation.  
>  This leaves us with the question of how to determine if the 
>  amount she deems fair compensation is, indeed, fair.  We 
>  thought that an analogy to the cost of reprints might be 
>  helpful, but those costs vary considerably, and, on further 
>  reflection, it is not clear that the analogy between a 
>  reprint of a paper article and a posting on the WWW holds.
>  
>  Short of "going to court," does anyone have any knowledge or 
>  suggestions which might be helpful in determining what is 
>  fair compensation for the author?  Any other observations 
>  concerning this sort of situation?
>  
>  Thank you!
>  
>  Dr. Herbert D. Safford
>  Information Librarian & Bibliographer
>  Grant Coordinator
>  Rod Library
>  University of Northern Iowa
>  
>  Herb.Safford@xxxxxxx
>  (319) 273-3711
>  
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