Copyright and contracts (RE: Unauthorized downloading of scientific information)

["Rick Anderson" <rickand@unr.edu>]

> The better question would be to ask whether this type of use constitutes
> fair-dealing / fair-use and whether it would be hampered by the
> anti-circumvention/rights management rules.

No -- the question for the library to ask about the kind of downloading
Bernie refers to is NOT whether it constitutes fair use/fair dealing. The
question for the library is whether it constitutes a breach of contract.  
(Remember that our license agreements prescribe a smaller circle of
acceptable behavior than the law does.  That's what contracts always do;
it is, in fact, the very purpose of contracts.)  If the library signs a
license agreement that prohibits interlibrary loan, then the library has
to abide by that restriction -- even though ILL may be generally
defensible on fair-use grounds.  The same goes for systematic downloading.  
It's not a question of copyright law; it's a question of contract terms.

----
Rick Anderson
Dir. of Resource Acquisition
University of Nevada, Reno Libraries
rickand@unr.edu