CDL: (response) Elsevier book licenses

Original posting followed by response:

From: nelder <nelder_at_ksu.edu>

Perhaps I'm resurrecting an old topic, but earlier this month when we
received three books with accompanying CDs, from Elsevier-owned 
presses, we took another look at the licenses sent with them. We 
realized how restrictive these 2003 licenses are.  Interpreted 
conservatively they would seem to exclude conventional library use.

Has this been discussed here before?  What does "lend" mean to 
Elsevier? Can we circulate the book with the CD?  Does "lending" apply 
to interlibrary loan only, and does that mean we can't send the CD 
with the book out on interlibrary loan?

Also, there is obviously no way we can tell if a library user 
downloads the contents of the CD and keeps them on their home computer 
after returning the book.  (Well we did consider hiring a squad of 
"copyright cops" but realized the budget wouldn't cover it.)

What are Elsevier's expectations?  If the license is bound in the book
with the CD pocket is that sufficient notice to the user that they 
should follow the license?

Or as one frustrated branch librarian threatened, should we just 
discard the CD and keep the book!

FYI, two of the books that generated this questioning are:

PHTLS: Basic and Advanced Prehospital Trauma Life Support, Rev. 5th 
ed. Mosby.

and

Handbook of Behavior Problems of the Dog and Cat. 2nd ed. Saunders.


Thanks for any responses to me or to the list.

Nelda Elder
Kansas State University
nelder_at_lib.ksu.edu
785-532-7437


==#1==


From: Marty Jenkins <martin.jenkins_at_wright.edu>

Well, we have this to fall back on as a beginning premise:

The "Doctrine of First Sale" (Title 17, Chapter 1, Section 109) which 
says that a copyright holder's distribution rights of a specific copy 
of a work ends at the first sale. The purchaser of that copy is free 
to sell, lease, loan or give away the copy without violating the 
copyright owner's exclusive right to distribute the work. The 
"Doctrine of First Sale" allows librarians to:
Lend books and magazines to patrons and other libraries
Receive e-book titles as gifts from patrons
Sell e-book titles in book sales

Now, of course, licenses can supercede (force us to waive) rights we 
have under copyright law. But the enforceability of licenses such as 
the ones for CDs accompanying books is highly suspect. Since most 
libraries buy books sight-unseen, these licenses come perilously close 
to being "shrinkwrap" licenses, licenses the purchaser can't see until 
the item's already been bought, which cannot be enforced.

My personal feeling is that if the publishers go to the effort of 
making these CDs and sticking them in the books, they must feel the 
value and usefulness of the book is enhanced by the CD (or reduced by 
the CDs absence), and if they don't want the CDs lent, then they 
shouldn't sell the books to libraries, because that's the business 
we're in. And if they do sell to us, they should expect that we will 
lend the material in toto.

Just my (decidedly non-lawyerly) opinion.


Martin Jenkins
Electronic Resources Librarian
Wright State University
martin.jenkins_at_wright.edu