Re: "Double" Licenses

[Howard Knopf <hknopf@magmacom.com>]

Andrew has a point, if one leaves aside such basic and fundamental
possible issues as insubstantiality of the copying, proof of chain of
title (to the work in question), fair use/fair dealing and the many
other legal and evidentiary obstacles that a publisher/owner might have
to face in suing an end user patron who availed herself/himself  of the
offered access on the Internet and perhaps exceeded the basic fine print
terms on the welcome mat, depending of course as always on the facts.
Not to mention the everlasting issue of whether US federal copyright law
trumps state contract law ("preemption").

As for privity of contract, both American and Canadian Courts have
generally and consistently declined to recognize "shrink warp" or "click
wrap" (i.e. on-line)  "contracts" that do not reflect an actual
negotiation or at least a "meeting of the minds". This is why the "fine
print" of liability limitations on air line tickets is generally not
enforceable while mortgages and credit card agreements are enforceable.
In the latter instances, one may not have had much opportunity to
negotiate, but at least there was an intention to enter into a
contract.  The one notable exception is in the U.S. Seventh Circuit
Court of Appeals in the well known ProCD v. Zeidenberg case where Judge
Frank Easterbook (of "Chicago School" fame) held in 1996 that the fine
print on the inside of a a pre-packaged mass marketed database of
telephone numbers was sufficient to prevent the defendant from passing
along bits and pieces of the contents of the uncopyrightable subject
matter to users on the Internet. This decision is regarded as very
controversial. 

-- 
Howard Knopf
Counsel, 
Shapiro, Cohen
613-232-5300 (Office)
613-761-1735 (Home)
Fax: 613-563-9231
E-mail: 
hknopf@magma.ca 
hknopf@idealaw.com

********************************** 

Andrew Martin wrote:
> 
> However, while the publisher may not be able to sue the patron for
> breach of contract, that doesn't prevent an action for copyright
> infringement, does it?
> 
> Andrew Martin
> Executive Director
> Canadian Copyright Licensing Agency
> 6 Adelaide Street East,  Suite 900
> Toronto, Ontario  M5C 1H6
> Canada
> 
> tel  (416) 868-1622
> fax (416) 868-1613
> 
> amartin@cancopy.com
> 
> -----Original Message-----
> From: owner-liblicense-l@lists.yale.edu
> [mailto:owner-liblicense-l@lists.yale.edu]On Behalf Of CopyrtLib@aol.com
> Sent: Monday, January 25, 1999 10:26 AM
> To: liblicense-l@lists.yale.edu
> Subject: Re: "Double" Licenses
> 
> Hi Ann and others:
> 
> It seems to me that because of a legal principle called "privity of
> contract", the electronic publisher wants to ensure that the terms and
> conditions in the license agreement are in fact effective.  Privity of
> contract means that one can only obligate the person or institution -- ie
> the library -- and not subsequent users -- ie the patron. Thus, if the
> publisher has in its contract with the library that a patron can only make
> one copy of any article in its database, and the patron makes 2 copies,
> then the publisher has no right in the contract to sue the patron.
> 
> However, if the publisher also enters into a contract with the patron,
> then the publisher would have such a right.  Another way of achieving the
> same goal is to obligate the library to ensure (if this is really
> possible) that the patron only make one copy and therefore create a
> contractual obligation on which the publisher can later take a legal
> action.
> 
> As long as the terms and conditions are consistent in the library and
> patron agreements with the publisher, it may be more advantageous to a
> library because they are then less legally obligated for the actions of
> the patron (which is difficult to control.)
> 
> Lesley
> 
> Lesley Ellen Harris
> Copyright & New Media Lawyer
> Editor:  Copyright & New Media Law:  For Librarians & Information
> Specialists