RE: NEW VERSIONS OF MODEL LICENSES RELEASED

["Diane Frake" <DFRAKE@vermontlaw.edu>]

Chuck, your email described very well what most of us have been doing for
some time with license agreements.  It is, indeed, confusing.  We used to
just have to worry about Westlaw and Lexis contracts and I know I never
read one.

After attending a workshop on understanding and modifying license
agreements, I could never not read, not modify, not negotiate a license
agreement again.  There are standard clauses in them (indemnity) that can
open your institution to unlimited liablility.  We cannot afford to sign
agreements without a complete understanding of what they mean.

Librarians must also take a very close look at state law to see if
disclaimers of warranty, indemnity clauses, etc. are allowed in their
states.  It might need to be a whole new position in libraries.

Luckily, there are now many standard licensing agreements we can use with
vendors.  However, some of the ones I have seen still contain clauses I
wouldn't be able to agree to.

Life as we knew it has changed once again in libraries.  My approach is to
err on the side of caution.  It has resulted in not purchasing a product
we would like to have, but we found we could live without it - the risks
involved were too great, even if remote.

This is a great discussion......I hope it continues and spills over to
other listservs.  I'm looking forward to learning more and finding out
what other folks are doing.

Diane F. Frake, Associate Director
Julien and Virginia Cornell Library
Vermont Law School
P.O. Box 60
So. Royalton, VT 05068
(802)763-8303, ext. 2444
Fax: (802) 763-7159

_______________________

>>> cahamake@email.uncc.edu 05/15/00 06:38PM >>>
Perhaps because of language in license agreements from so many
e-publishers, i.e. licenses that demand indemnity or exclusions from
liability or complete coverage of their liability by state institutions,
or venue restrictions, and contracts that exclude walk-in users, who
really can't be excluded from public institutions, some librarians have
argued that it doesn't matter what the contract says.

It's unenforceable, so why waste time "negotiating". Just sign the thing
and get the access There are too many of these things out there to waste
time or breath or energy. (p.s. almost every license agreement i've seen
lately seems to have one or another of these clauses, ).

I haven't seen the argument in print, but have certainly heard it from
librarians who are more concerned about getting this stuff available ,
especially with short staffing and little trained assistance, than about
negotiating to get a license that is "legal" i.e. meets the demands of the
local (i.e. state) laws-- Just sign it, they aren't going to do anything
about it anyway.

When license discussions don't go anywhere, or don't happen at all, what
do publishers and other content providers think they are getting when they
get a signature from a state institution that doesn't meet a state's
requirements ,?

I'd be interested in some content providers with uncontested license's
from state institutions, with states with these provisions and asking
their lawyers what it is they have in their hands. Does it really mean
anything? Is it enforceable?

I'm really puzzled at this. Do the lawyers working with these content
providers advise their companies that if IF they are signed off on by
individuals in U.S. State institutions, they are not going to be
enforceable under a specific state's contract-law systems? Do these
license agreements mean anything???

Are they advising content providers to sue the individual librarian who
signed if there are violations, and to expect indemnification from the
individual who signed contrary to institutional policies?--

If the person who signed the contract did so ignoring or even flaunting
state law, are content providers going to try and sue the state
institution anyway-- (under the providers choice of venue-over a violation
originating in another state??)--a venue choce the state's laws explicitly
state must be their own for contract law purposes?

The individual signing may be unaware of state law, or may believe the
license is unenforceable. And under the rubric of service to patrons is
just getting access without the hassle of negotiation.

Confused
Chuck Hamaker