The Incursion of Contract Law (Licensing) in the Library: Concerns, Challenges, Opportunities and Risks
| dc.audience | Audience::Advisory Committee on Copyright and other Legal Matters | |
| dc.conference.date | 16-22 August 2014 | |
| dc.conference.place | Lyon, France | |
| dc.conference.sessionType | Committee on Copyright and other Legal Matters (CLM) | |
| dc.conference.title | IFLA WLIC 2014 | |
| dc.conference.venue | Lyon Convention Centre | |
| dc.contributor.author | Lipinski, Tomas A. | |
| dc.date.accessioned | 2025-09-24T08:22:18Z | |
| dc.date.available | 2025-09-24T08:22:18Z | |
| dc.date.issued | 2014 | |
| dc.description.abstract | This paper discusses the current, developing and future impact that the incursion of contract law is having upon library practices, relationships and roles. Contract law asserts itself into library practice in the guise of a license, or contractual form of permission for content or services. Information exchanges based increasingly on contract and license impact not only libraries and similar institutions but also individual members of the society that the library serves. These concerns, not peculiar to the library, are presented in a broader societal context. Next, the challenges that this incursion causes reveal information markets that are unsustainable, far-reaching in the nature of rights affected, and unbalanced as far as the rights and obligations of the parties involved in a particular agreement are concerned. Libraries serve as information focal points in a society and there is an opportunity for the library to serve both as a beacon, illuminating issues, and as a catalyst and focal point for change. However, the opportunities are not without some risk of instigating a broader shift across society regarding the mediation of information rights among rights-holders and users. Several broader concepts are discussed in this context. This discussion draws heavily on examples from the United States. However, the scenarios raise issues common to all jurisdictions and legal traditions. | en |
| dc.identifier.citation | Webster’s Dictionary can be used to define “concern” “challenges” “opportunities” and “risks”. eBay, Inc. v. Bidder’s Edge, Inc., 100 F. Supp. 2d 1058 (N.D. Cal. 2000) (trespass to real property Compared to trespass to chattels or conversion discussed); Register.com v. Verio, Inc., 126 F. Supp. 2d 238 (S.D.N.Y. 2000) (likelihood of harm demonstrated if other users allowed to replicate Verio’s actions of using robot to extract data, system operability would suffer); and Ticketmaster, Corp. v. Tickets.com, 2000 WL 1887522 (C.D. Calif.) (tacit acceptance of digital trespass, but no evidence of harm demonstrated), 2003 WL 21406289 (C.D. Calif.) (“Pending appellate guidance, this court comes down on the side of requiring some tangible interference with the use or operation of the computer being invaded by the spider.” Id. at *3). The library may fall outside the definition of “consumer”: “‘consumer’ means any natural person who, in contracts covered by this Directive, is acting for purposes which are outside his trade, business or profession.” EU Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, Art. 2. b. ProCD v. Zeidenberg, 86 F.3d 1447, 1454 (7th Cir. 1996). Authors Guild v. Google, Inc., 770 F. Supp. 2d 666 (S.D.N.Y. 2011). Authors Guild v. Google, Inc., 954 F. Supp. 2d 282 (S.D.N.Y. 2013); and Authors Guild, Inc. v. HathiTrust, 2014 WL 2576342 (2d Cir.). Ellen Broad, What is the Trans Atlantic Trade Investment Partnership (TTIP) and why it could it affect the information sphere, Joint IFLA CLM & EBLIDA, August 14, 2004, Strasbourg, France; and Trish Hepworth, The Trans-Pacific Partnership - what does free trade mean have to do with library services?, Joint IFLA CLM & EBLIDA, August 14, 2004, Strasbourg, France. (2013). Available at http://www.nature.com/libraries/site_licenses/license_ agreements.html. Available at http://www.proquest.com/about/terms-and-conditions.html. A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001): Authors Guild, Inc. v. HathiTrust, 2014 WL 257 6342, *10 (2d Cir.) (June 10). U.S. v. Apple, Inc., et al., 12 CV 2826 (S.D.N.Y., April 11, 2012). U.S. v. Apple, Inc., 952 F.Supp.2d 638, 709 (S.D.N.Y. 2013), Anthony G. Read, Notes: Dewitt Clauses: Can We Protect Purchasers Without Hurting Microsoft?, 25 REVIEW OF LITIGATION 387, 420-421 (2006). Genelle I. Belmas and Brian N. Larson, Clicking Away Your Speech Rights: The Enforceability of Gagwrap Licenses, 12 COMUNICATIONS LAW AND POLICY 37, 73 (2007). “Use reasonable efforts to ensure that Authorized Users are made aware of and undertake to abide by the terms and conditions … and immediately on becoming aware of any unauthorized user or other breach, inform BioOne and take reasonable steps, including appropriate disciplinary action, both to ensure that such activity cease and to prevent any recurrence.” “Licensee[] shall notify JSTOR of any [] unpermitted uses … and shall cooperate with JSTOR in resolving problems or unpermitted use.” U.S. v. Swartz, Criminal Complaint, at ¶ 23 - ¶ 24, No. 1:11-cr-10260-NMG (Dist. Mass., 7/711). “Subscriber agrees to indemnify OVID from and defend at its own expense…against any and all claims …arising out of or related to Authorized Users use of the Products or any materials provided hereunder.” “The principle that an acceptance becomes effective — and binds the offeror — once it has been properly mailed.” BLACK'S AW DICTIONARY 502 (9th ed. 2009) (no pagination in Westlaw). The Copyright Librarian: A Study of Hiring Trends for the Period 2006-2013, Dick Kawooya, Amber Rodriguez and Tomas A. Lipinski (2014). A current study of copyright queries on the American Library Association Copyright Advisory Network indicated that from 2004-2011, “analysis of 1000 real-life copyright questions asked and answered via the online copyright reference service… indicate that or 34% reflected the need for training in Fair Use principles and guidance on performing a four factors analysis.” Gail Clement, Project Coordinator (2014), http://www.districtdispatch.org/2014/01/fair-use-necessary-exception-libraries-educators/. BLACK’S LAW DICTIONARY (9th ed. 2009) defines an adhesion contract as: “A standard-form contract prepared by one party, to be signed by another party in a weaker position, usually a consumer, who adheres to the contract with little choice about the terms.” EU Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts. Art. 2. B: “‘consumer’ means any natural person who, in contracts covered by this Directive, is acting for purposes which are outside his trade, business or profession.” Zerjal v. Daech & Bauer Const., Inc., 939 N.E.2d 1067, 1073 (Ill. App. 5 Dist., 2010) (“The term ‘unconscionable’ encompasses the absence of meaningful choice by one party, as well as contract terms that are unreasonably favorable to the other party.”). RAYMOND T. NIMMER AND JEFF C. DODD, MODERN LICENSING LAW § 12:5 (database updated in Westlaw September, 2013). Restatement (Second) of Contracts § 178(2)(a)-(c) and (3)(a)-(d) (1981) (When A Term Is Unenforceable On Grounds Of Public Policy). Lasercomb America, Inc. v. Reynolds, 911 F.2d 970, 978 (4th Cir. 1990) (99 year non-complete provision longer than duration of copyright). Victoria Smith Ekstrand, Protecting the Public Policy Rationale of Copyright: Reconsidering Copyright Misuse, 11 COMMUNICATION LAW AND POLICY 565 (2006). Assessment Technologies of WI, LLC. v. Wiredata, Inc., 350 F.3d 640, 645 and 646-647 (7th Cir. 2003). “The rule that the purchaser of a physical copy of a copyrighted work, such as a book or CD, may give or sell that copy to someone else without infringing the copyright owner’s exclusive distribution rights… the copyright owner’s distribution right is said to be exhausted.” BLACK’S LAW DICTIONARY (9th ed. 2009) (no pagination in Westlaw). 17 U.S.C. § 109(a). BLACK’S LAW DICTIONARY (9th ed. 2009) (no pagination in Westlaw), defines “exhaustion” as the “principle that once the owner of an intellectual-property right has placed a product covered by that right into the marketplace, the right to control how the product is resold within that internal market is lost.” See also, L. J. KUTTEN, 2 COMPUTER SOFTWARE PROTECTION-LIABILITY-LAW-FORMS § 9:72 (database updated April 2014 in Westlaw) (“Why wouldn’t the following nonsoftware transactions also be valid contractual restrictions... A book publisher put a shrink-wrap agreement on its back covers prohibiting the loaning of its books by a public library. A music manufacturer put a EULA on the back of its CDs prohibiting the resale of the CDs.”). See also, Marcelo Halpern, Yury Kapgan, Kathy Yu, Vernor v. Autodesk [621 F.3d 1102 (9th Cir. 2010), cert. denied 132 S. Ct. 105 (2011)]: Software and the First Sale Doctrine Under Copyright Law, 23 No. 3 INTELLECTUAL PROPERTY & TECHNOLOGY LAW JOURNAL 7 (March, 2011) (the “decision also could affect conduct in the secondary markets for all copyrighted works… [with] software-style licensing terms being attached to other kinds of works…and weaken markets for sale of secondhand copies of all types of copyrighted works, particularly those distributed electronically, whether software, music, movies, or books.” Capital Records, LLC v. ReDIGI Inc., 934 F.Supp.2d 640, 648 (S.D.N.Y. 2013). iTunes: “USAGE RULES. (i) You shall be authorized to use iTunes Products only for personal, noncommercial use.” Kindle: “display such Digital Content … solely on the Kindle … solely for your personal, non-commercial use.” WIPO (World Intellectual Property Organization) Copyright Treaty of 1996 (December 20, 1996) (available at http://www.wipo.int/treaties/en/text.jsp?file_id=295166. 17 U.S.C. § 1202(c)(6). | |
| dc.identifier.relatedurl | http://conference.ifla.org/ifla80/ | |
| dc.identifier.uri | https://repository.ifla.org/handle/20.500.14598/5421 | |
| dc.language.iso | en | |
| dc.rights | Attribution 3.0 Unported | |
| dc.rights.accessRights | open access | |
| dc.rights.uri | https://creativecommons.org/licenses/by/3.0/ | |
| dc.subject.keyword | Copyright | |
| dc.subject.keyword | Contract | |
| dc.subject.keyword | Licensing | |
| dc.subject.keyword | Legal Developments | |
| dc.title | The Incursion of Contract Law (Licensing) in the Library: Concerns, Challenges, Opportunities and Risks | en |
| dc.type | Article | |
| ifla.Unit | Section:Advisory Committee on Copyright and other Legal Matters | |
| ifla.oPubId | https://library.ifla.org/id/eprint/1052/ |
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