Re: Havard Business Review

[Kathrine Henderson <kathrinehenderson@xxxxxxxxx>]

hmmm, I think that contracts can trump copyright law unless the contract
itself is fraudulent, deceptive or unconscionable. If I have time later in the
week, I'll see if I can come up with some citations on this issue.

I can see
where you are going with your employment example.  But, I think that employees
contractually agreeing to the kinds of things that you are suggesting would
fall under an unconscionable contract. Taking this to an extreme, we cannot
enslave people even if they agree to it contractually.  

In any case, this
situation certainly begs some questions.  If contract law doesn't trump
copyright, then why is EBSCO including this caveat? How is it that HBR can
make such a demand?  Why aren't other publishers doing the same thing--or are
they doing so in a less visible way?  Why aren't we all posting links to HBR? 
My $.02,

Kat



----- Original Message ----
From: John Mitchell
<john@xxxxxxxxxxxxxxxxxx>
To: Kathrine Henderson <kathrinehenderson@xxxxxxxxx>
Cc: digital-copyright@xxxxxxxxxxxxxx
Sent: Sunday, December 7, 2008 9:29:35 PM
Subject: Re: Havard Business Review

Kat, I've never gone so far as to believe
contract trumps copyright. Sure, contracts within the scope of copyright are
fine, but contracts that leverage copyrights into control over uses
specifically excluded from copyright should, at best, be void and
unenforceable as a matter of public policy (and at worst, copyright misuse and
a Sherman Act violation). A good parallel might be employment law. Employers
have certain rights and employees have certain rights, but we would not
tolerate an employer obtaining contractual agreements from employees, as a
condition of employment, to waive all rights enjoyed by the employee as a
matter of law. Sure, some prospective employees might find it "a better deal"
to waive rights against age, sex, or race discrimination in exchange for a
higher salary, and the "free market" would find that to be just dandy, but we,
as a society, would not tolerate it.

As a matter of pure copyright law, when
the grant of section 106 rights is made expressly "subject to sections
107-122," those sections would lose much of their value if copyright owners
could license section 106 rights only on condition that the licensee waive the
limitations in 107-122, don't you think?

John

John T. Mitchell
http://interactionlaw.com

On Dec 6, 2008, at 8:32 PM, Kathrine Henderson
wrote:

> This restriction has been there for more than two years.  I suspect
that the
> publishers are within their rights to restrict usage--contract law
trumps if
> nothing elese, but it seems yet another example of copyright being
out of
> balance.  Ultimately, I think that publishers are going to have to
change
> their business model; but I don't think there's enough pressure in
the
> market.
> 
> My $.02,
> 
> Kat Henderson