Harvard Business School, expanding the bounds of copyright

So I already knew that Harvard Business School tried to keep as tight a rein as possible on sharing of their Case Studies–they are a large income stream for HBS.  I believe that their licensing specifically disallows you from putting electronic versions on course reserves, or using them for ILL. In the case of ILL, they are certainly allowed to restrict you thusly as copyrightholders. In the case of electronic reserves, it’s not entirely clear, but odds are they can too.

However, if you actually buy a paper version, they can keep you from making copies of it, but they can’t keep you from passing it around to all of your friends (personally) or ILL sharing it.  Among other reasons, because of the ‘first sale doctrine’ in copyright, which applies to tangible physical merchandise like a book or CD, but not to bits sold to you over the internet — which didn’t exist as a market when the ‘first sale doctrine’ was created, and which aren’t sold to you as a concrete object, but generally as a license to use instead.

This is one reason why content providers might increasingly prefer electronic versions to paper versions–users actually have fewer rights with them.

But check out this crazy email that an un-named student friend of mine got from his un-named professor at an un-named school:

Harvard Business School (HBS) Case Studies:
Students will be required to purchase case studies
directly from Harvard Business Schools website. Case studies typically cost about $3.95 each and we will be using approximately 10-12 case studies plus several additional readings and technical notes. The link provided below will
take you to the HBS website for this course, through which you may purchase the materials directly.

Each student is required to buy his or her own set of materials. Do not share, copy, or distribute these materials as Harvard
monitors class enrollment vs. actual student orders and notifies the instructor if there are discrepancies.

Harvard monitors class enrollment vs. actual student orders and notifies the instructor if there are discrepancies! Really? That’s hard core.

But then what is the instructor so notified supposed to do about it? If they don’t do anything, is HBS going to write a legal letter to the school, I guess? Threatening what?

As much as HBS might like,  I’m reasonably certain they have no legal right to prevent, say, two students from sitting down at a computer together, purchasing the case study, and viewing it together, on the same monitor. If I were a student, I’d just tell the professor I’d done that.

HBS probably can prohibit even one single student from printing out the case study, but if they allow a student to print it out, can they by licensing prohibit the student from then sharing that one physical printout with others? Perhaps, I’m not sure. (Since they didn’t buy a print copy, the First Sale Doctrine is irrelevant?) We know they can legally prohibit the purchaser from sharing an electronic version with others, of course–and thereby prevent electronic reserves use among other things.

They probably want you to think that even two students sitting down at the same monitor is illegal. Is that possibly true? Now that I think about it, I’m not sure, actually.

Rightsholders will take us for everything they can, and try to convince you that ‘everything they can’ is even more than they really can. They’ll try to control by licensing what can’t be controlled by copyright, in ways that may or may not be legal, but do you want to go to court?   If they can make something an electronic purchase to get rid of the first sale doctrine… I wonder if HBS will (or has already?) stop selling the Case Studies in print at all (‘tangible merchandise’), so they can be sold as software with a licensing agreement, not as texts.

If rightsholders could, they’d make the entire traditional business of libraries illegal, just like file sharing. Aren’t we just ‘file sharing’ with physical books?  Shouldn’t every user of a book have to pay, why do they get to use one copy purchased for a single copy price for free?

The RIAA has recently somewhat scaled back it’s aggressive prosecution of file sharing mostly in response to bad publicity.  But they still don’t like it.


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