[Hague-jur-commercial-law] Why Article 4 of Hague Convention is relevant to 1st sale doctrine

[love@cptech.org]

This is a letter about the problems with UCITA from the American
Association of Law Libraries, but the problems with Article 4 of the
Hague convention are much more fundamental, as all libraries are
considered businesses under the Hague, and all choice of forum clauses
with libraries would be enforecable.    Jamie

http://www.ll.georgetown.edu/aallwash/lt032797.htmlh

March 27, 1997 
Professor Raymond Nimmer
Reporter, UCC Article 2B Drafting Committee
University of Houston Law Center
4800 Calhoun
Houston, TX 77204 

Dear Professor Nimmer: 

The American Association of Law Libraries (AALL) has serious concerns
about the goals and impact of proposed Article 2B of the Uniform
Commercial Code. The general trend toward licensing of information and
the specific validation of shrinkwrap and other mass-market clickable
licenses threaten the ability of libraries to achieve their fundamental
mission to collect and share information. 

AALL is a nonprofit educational organization with nearly 5,000 members
nationwide. Our members respond to the legal and governmental
information needs of legislators, judges and other public officials at
all levels of government, law professors and students, attorneys,
corporations, and members of the general public. 

AALL believes that widespread licensing of information is likely to give
creators and publishers far greater rights than Congress conferred upon
them in the Copyright Act and, at the same time, limit the ability of
libraries and their users to use information in the ways they have come
to expect. In the Copyright Act of 1976, Congress created a careful
balance of rights between creators and users of copyrighted works.
Subsequent revisions to the Act, such as amendments to Section 109 which
recognize library lending of software and sound recordings, attempted to
preserve that balance. 

 A regime of licenses for information has the potential to largely
supplant copyright as the primary legal mechanism for the protection of
intellectual property. Licenses may become the primary means by which
information is protected and distributed. We believe that the balance so
carefully woven into the Act should not be abrogated by the terms of the
license, especially a unilateral license, which would have the practical
effect of preempting the Act. As two specific examples, we believe that
neither the fair use section, nor the section 108 library exemption
should be curtailed through the terms of a contract. Moreover, as a
matter of public policy, we believe that licenses should not create a
new form of protection through contract for works which Congress decreed
are in the public domain, such as works of the United States government
and those works lacking the requisite originality for copyright
protection. 

AALL is also concerned about the characterization of what is really a
purchase as a license for use, rather than a sale of copy. Under the
first sale doctrine, a library may lend to its users a copy of a work
that it lawfully owns. Restrictive license terms, without a first sale
equivalent, would potentially limit access to information in library
collections. 

Moreover, American copyright law has long protected a library*s right to
acquire materials by gift through the first sale doctrine. Many
libraries now enhance their collections through donations or exchanges
of materials. Without the first sale doctrine, publishers could easily
prevent libraries from continuing this efficient and legitimate
practice. 

Even if the mass market licenses were not unilateral, the loss of
copyright balance and the first sale framework also leaves an impossibly
complex practical and legal burden for libraries which would have to
negotiate many different licenses. Specifically trained library staff
would have to address each information product separately in an attempt
to negotiate and secure appropriate patron access. Because library users
are not in privity of contract, libraries face particularly daunting
legal and practical obstacles in attempting to enforce license terms
against library users. 

The option to return the material for a refund is hardly ameliorating.
If book publishers could have refused to sell to libraries or could have
charged more for a sale to a library, many would have made such choices.
In fact, book, journal, newspaper and other print publishers may look to
Article 2B as a way to gain what they have never received through the
copyright law -- total control over all uses of their product. 

Finally, we note that the definition of *information* in Section
2B-102(18) encompasses printed matter. Although Note 1 to Section 2B-103
explains that *sales of books and newspapers are not covered* by Article
2B, nothing in the language of the Article itself prevents book
publishers from covering their products with shrinkwrap and enclosing
contracts which transform the familiar sale of a copy into a license
that limits the use of the product. 

Along with the rest of the library community, AALL is continuing its
review of the proposed revisions to U.C.C. Article 2. As a large segment
of customers who would be affected by the changes, we believe there are
likely to be other areas of concern that will surface as our review
continues. 

In the meantime, AALL appreciates the opportunity to provide these
written comments on proposed Article 2B. We urge the Drafting Committee
to reconsider provisions which permit such radical restructuring of
rights in information and expression. If you so recommend, a
representative of the American Association of Law Libraries will attend
a future meeting of the Drafting Committee to discuss our concerns
further. 

Sincerely, 

Robert L. Oakley
Washington Affairs Representative 

Jim Heller, Chair
Copyright Committee