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Fair Use & Right of First Sale

Note: this is a preliminary report on an ongoing research matter. It has been issued to inform interested parties and to, hopefully, stimulate responses that help with the aforementioned research. The questions being -- 1.) Do Public Libraries and School have to purchase videos with so called public performance rights? 2.) Are Public Libraries permitted to lend and/or rent videos that they own?

The Copyright Act states that the owner of a lawful copy can "sell or otherwise dispose of" the copy.

Otherwise dispose of refers to "renting, leasing and/or lending" a legally owned copy of a work, be that work a book or a video. This was firmly established in the early 80s when Hollywood spent millions trying to prevent Video Stores from renting the movies they [the studios] were willingly [and legally] selling to these same stores.

The studios had even went as far as placing notices on the cassettes (both physically and recorded on the video) that it was for SALE ONLY and that RENTAL NOT ALLOWED. This includes Disney. Well, we all know what happened. There's over 50,000 stores renting (or otherwise disposing of) videos in this Country alone.

The principle -- Right of First Sale -- arose as a result of the above mentioned legal actions. Basically it means -- Video Stores (and a myriad of other retailers) can rent any and all videos that they purchase legitimately. They also give away (loan) free rentals as incentives. Therefore, it must follow that Libraries can sell, loan or rent them, whatever the case may be. The idea that libraries or schools must purchase so called public performance rights is without basis in law, in my not so humble opinion.

As yet, I've been unable to find direct reference to the Right of First Sale in the Federal Law Link I've listed. However I did come upon what I believe is a study that a student conducted at (of all places) Berkeley (how appropriate). You'll find it at Copyright and Electronic Journals. It's a good read.

Please. Anyone wishing to take issue with this, cite the law. Show us the case study where it was handed down. I couldn't find any and I looked real hard. As a person that holds copyrights and, more importantly, as a person the represents others that do, the last thing I want to happen is for me to cut my throat with the producers (rightholders) that I work with. On the other hand, I don't want to over charge libraries or schools for products, and cut my throat with them. A real "catch 22".

I will continue to search for references to The Right of First Sale. I ask that others (like you) take up the cause too. Perhaps together we can discover ways to reduce the average cost per video (and programming on other "methods of delivery"). Then Public Libraries & Schools will have more funds available for purchasing additional support materials thereby increasing their collections.

References: Fair Use Doctrine Copyright Act §107. Limitations on exclusive rights: Fair Use and §108. Limitations on exclusive rights: Reproduction by libraries and archives. And Addendums (Historical and Revision Notes & House Report No. 94-1476).

For those that want to look further into this situation, you might want to visit these locations: Link to U.S. Copyright Office and/or Find Law for Supreme Court Case Searching FindLaw

Any mistakes made, are made with the best of intentions.

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Stan Nicotera - e-mail:
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