IP industry control of use

["Hamaker, Chuck" <cahamake@email.uncc.edu>]

We've had to return many products the past year or so because "shrink
wrap" exluded the possiblity of library use,and when we talked with the
companies, they refused to permit standard educational use of their
property. They clearly were NOT selling their products under standard
copyright law and did not want library use in any way shape or form. They
refused to permit "library checkout" of CD's or videos. They refused to
consider other library uses, and in effect refused to permit what I
believe would normally be considered fair use of their products. How many
examples do you need? I'm sure others on the list have had the same
experiences. We had companies refuse to sell us their products, we've had
companies demand return when they realized their product had ended up in a
library, demand return when they realized the library wanted to be able to
circulate their product, etc. etc.

In my experience content owners have demanded to control very narrowly the
use of their material, even when those uses are patently not going to harm
economic return to the IP owner. They don't want types of use they have
not considered or pre-approved. This isn't hyperbole, this is factual,
exact experience with a range of companies products, from videos to CD's.
from educational software to educational content and from training videos
to documentary videos. They might as well have 'not for sale to libraries'
stamped on their sales brochures and invoices. What was apparent when we
talked with them, was some had never considered their video would ever be
acquired by a library! Often the restrictions couldn't be identified until
we open the packaging. No notice on the invoice, literature, etc.

Publishers as well as entertainment industry representatives are working
to create an environment where preservation, use of alternative display or
listening devices,lending, migration,normal institutional use, long term
survival of any particular format or medium, etc. will not be possible
technically or legally without the property owner's express permission. I
believe that no permission=no survival. Common and accepted practices
regarding individual and institutional use of intellectual property are
being turned into a per use/per device toll road and when the road is
"closed" there is no detour. We deseparately need orphan content laws to
provide for the survival of digital and other forms of content the
original owners have abandoned by not maintaining its availability. We
also need to be able to overide content owners unreasonable limitations on
use of IP when those limitations are clearly legal. What a strange way to
negate copyright laws. You bought it--it isn't yours because i've hidden a
license inside.

The IP industry has not shirked at wild and overblown scare tactics and
statements. There is no reason they shouldn't get a bit of their own
tactics back. While they overstate their case regularly to congress and to
the media, they attack anyone who decries the impact of what they are
doing as being a "scaremonger". Sheesh.

If anything the library and user community has been too quiescent in the
face of the aggressive behavior of the IP industry and its well placed
lobbyists. A really "cute" argument that they've repeated: "we have to eat
too". I guess that means we have to feel really really sorry for the poor
underfed content industry.

Chuck Hamaker