Re: Harvard Business Review

[Kathrine Henderson <kathrinehenderson@xxxxxxxxx>]

It seems to me that First Sale Doctrine isn't applicable to the Harvard
Business Review situation.  There isn't a specific, lawfully purchased copy. 
Issues of transfer--loan, resale, rent, etc do not apply.  Even if 109 is
applicable, contractual agreements between libraries and database providers
for example, do not allow authorized users to give away content to
nonauthorized users.   

I'm also not convinced that we can make a claim that
what HBR is doing is preventing fair use.  The court has already spoken on
this in several DMCA cases.  Essentially, not allowing a particular
activity--posting a presistent link to a course page in this case--is within
the content owners' rights.  One can still go to the library and access the
article and use it for scholarship, criticism, parody, or whatever fair use
one wishes, that this isn't the user's preference and is less convenient
doesn't come into play.

Although none of this seems particularly
fair--advantage goes to the copyright holder and everyone is losing out of
some of the advantages of digital content .   Fairness issues aside, I do have
concerns about what will happen if everyone does what HBR is doing.  I think
that this is yet another facet of the problems we are faced with given the
current scholarly publishing model which we can already see is not sustainable
in a post Google world.  

BTW, thanks to all of you for an interesting
discussion--I'm a sole practioner these days and its good to be thinking out
loud on these issues.

Kat



________________________________
From: John
Mitchell <john@xxxxxxxxxxxxxxxxxx>
To: "Harper, Georgia K"
<gharper@xxxxxxxxxxxxxxxxx>
Cc: Kathrine Henderson
<kathrinehenderson@xxxxxxxxx>; "digital-copyright@xxxxxxxxxxxxxx"
<digital-copyright@xxxxxxxxxxxxxx>
Sent: Monday, December 8, 2008 7:49:12 AM
Subject: Re: Harvard Business Review

I think there are two entirely different
issues. It is one thing to contract away a right, and quite another to
contract to acquire the removal of a limitation to which a right is subject.
Take, for example, section 109(a), a much more straightforward and clear
section than fair use. As the owner of a lawfully made book (a lawfully made
copy of a literary work), I am "entitled" by law to sell it, lend it or give
it away without the consent of the copyright owner. If a someone -- not the
copyright owner -- offers me the book only on condition that I not transfer
possession to anyone else, then I see no problem agreeing not to transfer
possession if the terms of the offer make sense to me.  

But if the copyright
owner exercises the copyright owner's exclusive right to reproduce or
distribute a copy of the work on condition that I not exercise my section
109(a) entitlement, it is an entirely different matter. Congress explicitly
stated that the exclusive rights are subject to section 109 -- you don't get
the exclusive rights without submitting to the superior 109 right. Second, the
section 109 right protects a huge public benefit that reaches far beyond my
own personal economic interests. If I give up my statutory right because it
makes economic sense to me, then I and the copyright owner have just (1)
agreed to nullify a limitation placed upon the copyright owner's exercise of
exclusive rights, (2) agreed to suppress the secondary market for used books
(antitrust), (3) impaired access to more affordable or free copies to those
who cannot afford the copyright owner's price, directly contrary to a purpose
of copyright to widen dissemination,
 and (4) entered into an agreement impairing freedom of speech, which the
courts should refuse to enforce (in the nature of Shelley v. Kramer) since the
agreement does not fall within the copyright exception to the First Amendment.
Practically speaking, a bookstore could make a calculation that if only one
buyer could read each book, it might be able to sell more books, and therefore
it could offer a discount to all buyers who agree not to let anyone else read
the book (assuming the increased sales revenue exceeds the loss due t the
discount). Buyers would be free to take it or leave it. Some, who had no plans
to let anyone else read it, might take the offer. Others, who saw greater
value in selling the book, lending it or giving it away, could reject it. If
the bookseller offered this as the only option, people could buy the book
elsewhere. But when a copyright owner conditions the exercise of its exclusive
right on the buyer agreeing to assist in preventing the operation of the
limitation on that right, it's like being given one, but only one, wish come
true, and your one wish is to have unlimited wishes come true.

Sure, I
realize copyright owners have pulled some of these stunts (like the
self-destructing DVD that costs more to make but is sold cheaper on the theory
that more people will have to buy them because the secondary market -- and all
of section 109's entitlement -- disappears), but getting away with it doesn't
make it legal.

John



On Dec 8, 2008, at 8:58 AM, Harper, Georgia K wrote:
Copyright is at its heart an economic statute. Its all about the incentive (a
limited monopoly) society feels we need to provide to authors and distributors
to get them to produce stuff to ultimately create and sustain the public
domain. As an economic statute, it is fundamentally open to contractual
modification. The only things that act as stops to this basic relationship (of
modifiability by contract) are the kinds of things Kat mentions
(non-negotiated contracts are questionable in some jurisdictions (i.e.,
shrink-wraps, click-wraps); unilateral statements of rights like all rights
reserved are not enforceable; unconscionable contracts; fraud, etc.). When a
large institution and a publisher, or even a small institution and a publisher
sit down across from each other and negotiate an economic deal (you give me
this and Ill pay you that), they can agree to whatever economic terms they
want. Fair use is not sacred. It can be bought and sold
 (How much to take away your fair use rights? Well, how about $200,000?
No, I dont want them for that. How about $20? No, not enough... Well
you see where this is going.)

I provided a Google search that would yield
plenty of writing on this subject for anyone who is interested, in my first
response to the inquiry a couple of days ago.

G




On 12/7/08 11:25 PM,
"Kathrine Henderson" <kathrinehenderson@xxxxxxxxx> wrote:


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




-- 
Georgia Harper
Scholarly Communications Advisor
University of
Texas at Austin Libraries
512.495.4653 (w); 512.971.4325 (cell)
gharper@xxxxxxxxxxxxxxxxx