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Legal issues surrounding gifts given under restriction have consequences 
well beyond action in the courts.

When, as an appraiser, I am approached with material a donor wishes to 
deposit with restrictions and is seeking an appropriate institution, I 
suggest those which do not leak, regardless of the cause.  There are 
occassional cases of restricted recordings being spirited out by inside 
employess and coming out on private labels, but, if I am not aware that this 
has been corrected administratively, I don't recommend that archive.

Some of this information is more widely available than in my own memory, and 
this does affect who gets what.

Similarly, when institutions sell off as surplus parts of donations before 
the 2 year retention period the IRS requires, I warn clients who are 
considering donations to that place that they may be liable for interest and 
penalties, should the institution file the appropriate IRS form that is one 
of the triggers for this distressing situation.  There have been cases where 
I've called the donor and his CPA and had them contact the archive's 
administration and warn them that, should this take place, negative 
publicity will occur, which makes other donors reconsider their own 
potential gifts.

Regardless of who hires me for an appraisal, my client is the donor, and 
protecting him is part of my job.

Steve Smolian

----- Original Message ----- 
From: "Karl Miller" <[log in to unmask]>
To: <[log in to unmask]>
Sent: Monday, October 10, 2005 9:49 AM
Subject: Re: [ARSCLIST] legal action, and libraries & archives


> On Fri, 7 Oct 2005, Matthew Snyder wrote:
>
>> First, regarding the restrictions that institutions put on who can hear
>> archived holdings with murky legal status, it should be stressed that for
>> most major institutions (and probably most minor ones as well), the main
>> worry is getting sued down to their skivvies by a copyright holder who
>> pops out from under a rock with a lawyer by his side.
>
> If a library has a deposit agreement which limits the auditioning of
> copyrighted material to a controlled environment, I can understand
> concern, however, from a technological standpoint this is impossible to
> enforce.
>
> If there is not a prior agreement, the copyright does not hold the library
> responsible for an unsupervised copy being made.
>
> I wonder if there is any case history of libraries being sued?
>
> Also, as I have stated before...when a copy is duplicated, the person
> making the copy can be held responsible. I know of no case history of any
> individual being sued for making a single copy of anything. My guess is
> that there isn't much point in going after any individual unless they were
> a Bill Gates.
>
>> The point here is
>> that a library's job is NOT to keep everything it ever gets. Archives do
>> that, and even then they don't keep EVERYTHING, they only collect what
>> they define as being part of their mission.
>
> Yes, but, do you believe a library has an ethical responsibility to
> explore venues of disposal which could make those materials available to
> archives and individuals who could make good use of those
> materials...and/or make every reasonable effort to maximize a potential
> revenue stream from the disposal of those materials.
>
> I am reminded of the old days when we had our book sales...which was, in
> my opinion, a great benefit to scholarship and the intergrity of the
> materials. The down side was a rare first edition book which was donated
> to the library...marked for sale at $1 and discovered by the donor of
> the book on the book sale shelf. That was the last book sale we had...now
> we just surplus...which means an equivalent situation could have that book
> being sold for a few pennies...the only difference being that the donor
> might not be aware of how little his donation was valued.
>
> Karl
>
>
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