"Do not lend..." on DVD-ROM game disc
- September 30, 2008 @ 1:48pmpackrat says:This may actually be a license/contract issue, but I thought I'd ask here anyway because there may be some advice on wording interpretation that's common to all areas:
We recently received "Lego Batman", a DVD-ROM game. The printed surface of the disc itself contains the sentence, "Do not lend or make illegal copies of this disc." However, this sentence has two possible grammatical interpretations:
1 - Do not (lend) or (make illegal copies...)
2 - Do not (lend or make) illegal copies...
The first interpretation implies that the disc cannot be loaned or circulated by a library. The second interpretation obviously does not apply to a library operating legally, and that would be a library's preferred grammatical interpretation.
Additionally, the EULA (which is *enclosed* in the container--"You must accept the enclosed License Agreement") states in part, "You may not ... (2) distribute ... all or any portion of the Product...." The word "distribute" is a "copy right", but the law doesn't prevent libraries from loaning and circulating print materials. Is the same (loaning and circulating) permissible with nonprint materials or with any materials for that matter which are licensed rather than owned?
I realize that, if this is a license/contract issue, that trumps copyright law. So my question is: can a library legally loan and circulate game discs containing these legal wordings and provisions? Thanks in advance!
- October 1, 2008 @ 12:29pmJanetCroft says:Contracts do trump copyright, if legal. Does the EULA state that by unwrapping/opening the container, you accept the contract? That would make it a shrink-wrap license, which is only legally binding in certain places -- I think just Virginia, but I may be wrong.
I tend to go with your second interpretation above. If they wanted it to be clearer, they should have made it clearer. Did you buy it from a library vendor like Baker and Taylor? If so I think that might be in your favor as well -- why sell it through a library vendor if you don't want it to be lent out? On the other hand, "make or lend" would be more logical if this were the correct interpretation.
However, to get a more informed answer than I can give you, you might want to find a forum devoted to library contract negotiation. The only one I'm really aware of is Liblicense: http://www.library.yale.edu/~llicense/; there are probably others out there, and maybe another commenter might point you to them.
- October 4, 2008 @ 5:53pmksmith says:It is absolutely not the case that shrink-wrap contracts are binding only in Virginia. Virginia and Maryland have adopted Article 2A of the Uniform Commercial Code, known as UCITA, that makes the enforcement of these agreements more consistent and certain, but courts in many other jurisdictions have also held that shrink-wrap contracts are enforceable.
I think that this probably is a binding agreement, conditioning use of the DVD on acceptance of the conditions, and I would read those conditions to prevent all lending. It would be redundant to forbid making illegal copies and also prohibit lending those copies (and only those copies) which can not be made in any case. Much more sensible to read this as preventing lending of the legal copy (precisely to prevent library and friend-to-friend lending that can depress sales) as well as (illegal) copying.
It would be sensible, in my opinion, for courts to hold that such license terms, in a transaction that in all ways really looks like a sale, are ineffective to trump copyright provisions like the right of first sale. But that has not been the trend. I do not like it, but I would not lend this DVD from my library; instead, I would return it to the vendor for a refund on the grounds that the EULA makes this purchase useless for my purpose.
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