Re[2]: Authors Rights

[mspinell@aaas.org (MSPINELL)]

Terry,

Many of your comments suggest that you have an unshakeable conviction that
publishers are a monolithic group who act pretty much the same way from
about the same (evil) motives. I believe this is transparently a specious
assumption, but, hey, it's not my place to talk anyone out of their
beliefs... May I, however, suggest a few counterpoints to your notes
below:

1) any publisher who consistently and deliberately claims to own material
it doesn't in fact own is playing a dangerous game, wouldn't you think?
How widespread could such naughtiness really be without it resulting in,
at least, a widespread public outcry, and, more likely, litigation?

2) many publishers pay royalties for extended use, beyond whatever deal
they make with the original author. Others at least get permission for
uses that go beyond the original deal. But of course, if the author passed
on all copyrights in the first place (either in exchange for being
published, or in exchange for some compensation), then there should not be
any legal or moral reason to demonize the publisher for not paying
royalites, right?

3) I agree that the wording of any particular notice might indeed have a
chilling effect. I might even agree that some publishers (though certainly
not all) are designing their notices with that goal in mind.  But I can
hardly accept your portrayal of users as ignorant and gullible about their
rights. I've just finished reading a focus group report where users--who
knew they were talking to a publisher they might actually want to buy
products from, and one who they did not view as an 'evil empire'--casually
and repeatedly insisted that they would absolutely share passwords,
without a second thought, on an individual online subscription they might
purchase.

I have also heard this point made, without prompting from me, by more than
one librarian: many users have no qualms whatsoever about sharing
passwords. So, I guess the moral here is: just because publishers (again,
some, not all) might be greedy, overreaching and paranoid, doesn't mean
(some) users aren't really out to take advantage of online content beyond
the normal 'fair use' limitations!

But where does all this leave us? There are bad players in EVERY industry,
and indeed, some bad buyers too, who wouldn't mind ripping off the
vendors, regardless of their moral status. Didn't we already know that?
I'm afraid there is not much insight left to be wrung from all these
generalized broadsides. Hadn't we better get down to the work of making
sensible agreements (or laws, as the case may be) about how online content
can be used, and educating users about both their rights AND their
responsibilities under such agreements or laws?

Mike Spinella

________________________________
Terry Cullen wrote:

I think you are absolutely correct that "omnivourous" rights don't exist.

The problem as I see it is not one of publishers being able to enforce 
claims to those rights, but rather the chilling effect they have on users. 
Most end-users do not know that these claims are unenforceable.  The DO 
know that there's a big splash screen in front of them saying "you can't 
use this for X purpose without permission or payment to the publisher."

They don't know that the author and not the publisher is real owner of the 
rights claimed, that the publisher doesn't pass on royalties for uses to 
the authors, or that they are entitled to fair uses regardless of who owns 
some or all of the enumerated rights.  They are going to believe that it 
is illegal for them to use the materials without payment, except in a 
manner acceptable to the publisher.

Terry Cullen, Esq.
Electronic Services Librarian
Seattle University School of Law Library 
950 Broadway Plaza, Tacoma, WA  98402-4470 
Email:  tcullen@seattleu.edu
Phone:  253-591-7092  FAX:  253-591-6313

On Wednesday, February 03, 1999 6:07 PM, Hamaker, Chuck 

> Re these "omnivourous rights" that authors are supposedly signing over to 
> publishers: the Ryan v. Carl summary judgement of a piece of that case,
> makes it clear that at least from one judge's perspective, it is
> impossible to give or sign away non-specific, all encompassing rights. If 
> it isn't enumerated, it probably doesn't exist. If it does exist and isn't 
> enumerated, then the author probably retains it, even IF there is a
> sweeping statement. Just my 2 cents worth. 
>
> Chuck Hamaker