RE: Fair use (RE: electronic journals CCC)

["Rick Anderson" <rickand@unr.edu>]

> But making rules based on the expectation of illegal actions serves little
> purpose as a person inclined to cheat will do so anyway.

I disagree.  You might as well argue that there's no point locking your
car door, because someone who wants to steal your stereo will just break
the window.  Making a rule that says "No electronic ILL" is like locking
the car door.  It doesn't stop anyone who's serious about breaking the
law, but it reduces the likelihood that articles to which you own the
copyright will be floating around in cyberspace uncontrolled.  How
valuable is that reduction? To most publishers, there's probably not that
much value, and those publishers should seriously consider not imposing
such a restriction.  But I can understand why it might be valuable to
some.

There's a weakness to my argument here, and that is the fact that while
there isn't any legally acceptable way for a private citizen to get into
someone else's car without permission, there are legally permissible ways
to copy or transmit copyrighted information.  But I think my basic point
is still valid: we make rules all the time that are designed not with the
"expectation of illegal action" necessarily, but with the recognition that
illegal action is possible and a desire to make it less likely.

> Yes, but there's no law that says a business can dictate what people
> should wear to work.  There IS a law that says how copyrighted material
> can be used.

There are also laws that say I can assemble freely and speak my mind.  
But they don't prevent me from signing a contract saying that I have to
show up at work at 8:00 am, or that I won't disclose the content of a
discussion.

> Individual contracts which are at variance with the law will
> almost certainly not hold up in the courts.  Take the case we had recently
> here in Alabama where someone gave workers at a restaurant lottery
> tickets.  The agreement or contract was that if anyone won, the winnings
> would be shared.  When one person won, she refused to share and was sued
> by the others.  The local courts agreed with the others and ordered that
> they share equally.  However, upon appeal, the state supreme court held
> that although they agreed that a contract to share was in effect, since
> gambling was illegal in Alabama (it was a florida ticket) the terms of the
> contract could not be upheld since it was at variance with state law.

There's a very significant difference between this situation and a license
that limits use in ways more restrictive than the fair-use provisions.
These folks were engaged in an illegal activity, and that's why the courts
found their verbal contract to be unenforceable.  The contract itself
would probably have been valid if the behavior in which they engaged were
legal. The problem wasn't that they were agreeing NOT to do something the
law says they CAN do, but that they we agreeing to do something the law
says they can't.

> In our case, fair use says we can make copies even of the electronic
> material.  A vendor's contract forbidding it is not legal, I believe, and
> I can't wait until this issue hits the courts - and it will.  Fair use is
> the law of the land, while vendors' contracts are just self-serving
> attempts to control distribution or whatever.  However, these contracts
> cannot circumvent existing law.

It's not a matter of circumventing the law.  Look at it this way: the law
of the land describes a big circle, inside of which is legal behavior and
outside of which is illegal behavior.  You can't legally enforce a
contract that requires (or assumes) someone to be engaging in behavior
outside the circle -- that's the Alabama lottery example.  But you CAN
enforce a contract that describes a SMALLER circle of permitted behavior
-- that's the employment contract example.  So Tom, if I hired and paid
you to assault someone and you didn't do it, I couldn't sue you to get my
money back; our contract required you to act outside the "big circle" and
the law isn't going to support me.  But if you sign a contract with me
saying that you will never recite "Hiawatha" within my hearing, and you do
it anyway, then I do have legal recourse -- even though the law of the
land says that you have freedom of speech.  In fact, the whole purpose of
contract law is to allow people to consent to the restriction of their
behavior in ways not provided for under the law of the land -- otherwise,
why would we need contracts at all?  We'd all just agree to obey the law
and that would be it.


-------------
Rick Anderson
Electronic Resources/Serials Coordinator
The University Libraries
University of Nevada, Reno
1664 No. Virginia St.
Reno, NV  89557
PH  (775) 784-6500 x273
FX  (775) 784-1328
rickand@unr.edu