Re: Harvard Business Review

[John Mitchell <john@xxxxxxxxxxxxxxxxxx>]

I take issue with a couple of statements in your first paragraph. The  
first sale doctrine -- at least its codification in Section 109 -- no  
longer requires a sale. The copy in question need only be "lawfully  
made". As for an agreement not to transfer possession of a lawfully  
made copy to users other than those authorized by the copyright owner,  
I realize some major software companies like to see it that way, but  
I've been litigating in the opposite direction, based largely on the  
fact that such agreements must be judged under antitrust laws, are  
against the public policy underlying copyright law, and that there is  
no "exclusive right to use" in section 106 -- no country that I know  
of gives copyright owners the exclusive right to decide who can  
"use" (as in "perform privately") their work, much less to do so from  
a particular copy.

I realize that copyright maximalists have had a field day in courts  
recently, particularly since so many judges seem to assume that the  
Copyright Act must be re-invented for anything with the word "digital"  
thrown in, but I, for one, am a firm believer in the Supreme Court's  
Fogerty v. Fantasy principle that preventing copyright owners from  
overreaching beyond the limits of their copyrights is just as  
important a pubic policy as is protecting their exclusive rights from  
infringement, and I believe that most "digital rights" issues can be  
resolved based on the same principles applicable to copyright-related  
technology of 1909.

John

On Dec 11, 2008, at 12:16 AM, Kathrine Henderson wrote:

> 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

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