[LIBRARYDIR] Guidelines for use of publisher freebies to instructors

[Thomas, Kirsti]

Beth Hill asked:

Can an instructor place a copy of a book she received from the publisher on reserve in the library, if she does not choose to adopt it as the textbook for her class?

We had a similar situation arise recently (instructor's edition of a textbook was donated to the library) and sought advice from the AG.  See the email below.  In our situation, we had no way of knowing whether the donor of the textbook had received an unsolicited copy and chose to not to add the donation to the library collection.

A private attorney also noted (but did not provide legal advice): At 17 U.S.C. § 109(a), the Copyright Act specifically states that if you are the lawful owner of a copy of a work, you have the right to "sell or otherwise dispose of" that copy without having to seek permission from the original owner of the copyright. This is a specific carve-out in federal copyright law that should trump any contractual provision to the contrary. That is, the publisher can put whatever they want into the purchase agreement, but they can't enforce a term, like this one, that is illegal. See here for the legalese: https://www.law.cornell.edu/uscode/text/17/109

Kirsti S. Thomas
Library Technical Services Manager
Seattle Colleges
kirsti.thomas at seattlecolleges.edu<mailto:kirsti.thomas at seattlecolleges.edu>
206-934-4106



From: Edwards, Derek (ATG) [mailto:DerekE at ATG.WA.GOV]
Sent: Tuesday, March 10, 2015 13:01
To: Thomas, Kirsti
Cc: Buttleman, Kurt
Subject: Emailing: UMG Recordings Inc v Augusto 9th Circuit.docx

This Ninth Circuit Court of Appeals in the attached case held that unsolicited promotional items sent to a reviewer did not create a license, so in essence, the promotional item was a gift subject to the first sale doctrine.  This is why we need to know if the instructor solicited the textbook or signed any licensing agreements.   Putting restrictions on gifts regarding the first sale doctrine is unenforceable.  Also, if it was mailed unsolicited through the U.S. Postal System, it is a gift and not a license.

Derek


Attorney-Client Privileged Communication
* Unless otherwise specifically indicated, the information contained in this e-mail message is an attorney-client communication and/or attorney work product and is, therefore, intended only for the review and use of the above-named person(s). If you are not the intended recipient of this e-mail, any distribution, dissemination, or copying is strictly prohibited. If you believe you are not the intended recipient, please notify the sender by calling (206) 389-2054.

Derek Edwards
Senior Counsel
Assistant Attorney General
800 5th Avenue, Suite 2000
Seattle, WA 98104-3188
Phone: (206) 389-2054
E-Mail: DerekE at atg.wa.gov



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