Caveat emptor!

This posting on the NY Times Technology blog – “On eBay, Some Profit by Selling What’s Free” – caught my eye over the holidays because it recounts a situation very similar to one in which we have found ourselves at my university. The post describes the experience of purchasing an old film from an eBay vendor only to discover later on that the entire film is available for free download from the Internet Archive site. The author is unsure whether to feel cheated, since he paid for something he could have obtained for free, or to recognize that the vendor had earned his fee by finding material the author wanted but would not have found himself. Both the vendor involved and Brewster Kahle, founder of the Internet Archive, basically take the latter position, with Kahle pointing out that no one is getting rich doing this while expressing the wish that more creative, transformative uses were being made of the older material.

At Duke we have been struggling to deal with a very similar situation. A great deal of effort went in to the creation of digital collections feature lots of wonderful material in our collections on the history of advertising. So our staff was understandably distressed to find out that an Internet entrepreneur had downloaded virtually the entire collection, which is mostly public domain images, and was selling the CDs through his own website and via eBay intermediaries. It is a well-established principle of copyright law, of course, that “sweat of the brow” does not give one rights in a collection of facts or public domain material. Nevertheless, we were unhappy because we made the collections available in order to facilitate scholarship and research without barriers of place or fees for access; selling the material undermines our vision of the research purposes of the collection.

We finally decided to send a letter asking the vendor to stop selling this collection. We based our request on three claims – a compilation copyright in the whole collection, which was copied in its entirety with our selection and arrangement (and some commentary) intact; a fear that, because the Duke name appears in a few places, there might be confusion about our relationship with the vendor (there is no such relationship, in fact); and our concern that some of the images may still be protected by copyrights held by the donor who gave us the material in the first place. Most galling to us is the fact that the vendor who has appropriate this material himself claims, on the site, to hold a compilation copyright in the material.

So far our letter has been ignored, and the material is still available for sale. We are unsure if we want to take further steps or what those steps might be. We have no desire to impede the flow of information to people who want or need it. But we do want to uphold the value of free access to the public domain, and also to protect and value the intellectual efforts of our fine curators. Perhaps the best thing I can do is to use this space to encourage readers to check out the free digital displays of this fascinating material on the Emergence of Advertising in America website. And remind all that when someone offers to sell this kind of material that looks like it came from a library special collection, let the buyer beware!