Page:The librarian's copyright companion, by James S. Heller, Paul Hellyer, Benjamin J. Keele, 2012.djvu/44

28 an unauthorized copy or adaptation of the computer program, or redistributes the loan copy, or publicly performs or displays the computer program except as permitted by Title 17 of the United States Code, may be liable for copyright infringement.

This institution reserves the rights to refuse to fill a loan request if, in its judgment, fulfillment of the request would lead to violation of the copyright law. Note that you do not need to affix a warning label to sound recordings, as Congress did not include such a requirement in the Record Rental Amendment Act.

The exemption for lending software and sound recordings, then, applies both to non-profit libraries and non-profit educational institutions, if done for non-profit purposes. As for libraries in for-profit institutions, they may share software and sound recordings within their institutions, but should not lend them to outsiders.

Another difference between software and other types of works is that software is often subject to a license agreement that may defeat the first sale doctrine. In itself, this is not surprising, but you may be surprised to learn that a license agreement could prevent you from relying on the first sale doctrine even when you didn't agree to any license agreement. In a recent case before the 9th Circuit U.S. Court of Appeals, an eBay merchant purchased copies of software from an end user and attempted to resell them, but was barred from doing so because the end user had acquired the copies through a license agreement that stated that the software developer retained ownership of the copies and merely licensed them to the end user. Although the eBay merchant had made no agreement with the software developer, he was nonetheless unable to assert the first sale doctrine in his defense because the software developer had never transferred ownership of the copies.

Finally, we need to mention e-books, which are becoming increasingly important to libraries. Unfortunately, the first-sale doctrine is rarely applic-