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Fair Use Assumptions
While there is no Supreme Court case or statute that definitively answers the issue, I think the law is going in the direction that license agreements can be more restrictive than the fair use provisions of the federal copyright law. The copyright law establishes a framework for the protection of intellectual property in the absence of contract. It attempts to strike a balance between protecting the creators of original material (by, among other things, granting them property rights in their work) and ensuring the free flow of information necessary for further creativity (by, among other things, permitting the fair use of coprighted materials). All this, however, can be altered by a valid contract. If the parties wish to enter into an agreement that includes giving up rights that they otherwise would have, they can do that. At least some courts, including the United States Court of Appeals for the Seventh Circuit, are willing to enforce those contracts. (See Pro-CD v. Zeidenberg, in which the court ruled that a shrink wrap agreement prohibiting the copying of a database was enforceable, even if the underlying database might not be protectible by copyright.) Now one issue that is more unclear is the effect of the license agreement on third parties who are not signatories to the agreement--i.e., the patrons of the library. Here, the best guess is that the contract itself could not be enforced against the the third-party user. Therefore, the fair use provisions would apply to the user, and the user could not be sued by the copyrgiht holder for breach of contract. (This is assuming that the user has not entered into some sort of agreement for use of the material, even by signing something from the library or school governing use of copyrighted materials, or agreed to some on-screen limitations to use.) However, many license agreements with libraries provide for the termination of the license if the library fails adequately to police its users. So, if a library signs an agreement that expressly limits copying or other use of the licensed materials in ways that are more restrictive than the copyright law, the best bet is that that contract is valid and enforceable against the library. The library should not assume that notwithstanding the provisions of the agreement it can use the materials in the same it has used materials not covered by a license agreement. To ensure that libraries can use materials consistent with the fair use provisons, libraries should insert language in the license agreement expressly permitting those uses. Very truly yours, Rodney L. Stenlake 655 Orange Street, Unit 5 New Haven, Connecticut 06511 rodney.stenlake@yale.edu
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