[ARSCLIST] Lease vs buy

[Steven Smolian <smolians@xxxxxxxxx>]

At a session at the recent MLA coonference, the matter of libraries and others leasing rather than owning records obtained at retail arose.  

The presenter, a lawyer, was pessimistic about this issue as regards the individual user and the library.  Her reasoning was built on the model of software licenses, required check box agreements, etc.

The March/April 2008 issue of  "Fine Books and Collections" has a different read on the issue.  In an article, "It's My Galley and I Can Sell It If I Want To,"  the matter of advance copies of books with restricting notices a la some records sent for review is addressesd on p. 10 et seq.  

Fred Lohman of the Electronic Frontier Foundation is quoted.  He states the "Any duplication, sale or distribution to the public is a violation of law" notice is questionable under the first sale doctrine of copyright law."  Under this, copyright owners may  or may not control how their work is sold for the first time but once it enters the marketplace, subsquent owners may resell or lend the work in its origial form.  This doctrine is what allows secondhand bookstores and libraries to exist.  The Supreme Court has ruled that the first-sale doctrine applies even when the first owner acquires a work for free or as a gift.  

The article cites a case of a man who sold a bunch of promo CDs on eBay.  EFF is suing Universal Music.  Case pending.

The lawyer at MLA claimed that by accepting the purchase agreement, the buyer was substituting the terms of the agreement for his legal rights should that aggreement not have been accepted.  Perhaps so. But, according to the EFF, this does not affect those who come into posession of the materials subsequently.  

Should institutional users be asking for charitable donations of their CDs, etc., from critics andn private collectors?

All is not lost. Yet.

Steve Smolian