Re: Nature Contract Provisions

[jdalford <jdalford@rhtc.net>]

Section 4.5 is an unreasonable request to ask libraries to undertake.  In
essence, the provision requires the Licensee (the library) to review all
computer disks owned by Authorized Users (patrons) and ensure that the
users delete any content the users ever downloaded from Nature during the
term of the license agreement.  Section 2.1(c) specifically allows
Authorized Users to download articles from Nature.  To ask the Libraries
to police Users' personal effects and to remove downloaded articles is
simply ridiculous and plainly impossible.

Under Section 4.3, Licensor (but not Licensee) can terminate the License
Agreement upon 30 days' written notice for any reason whatsoever.  Here is
one scenario to consider.  Nature terminates the license with the proper
30 days' written notice.  The library then must contact all Authorized
Users who used Nature during the term of the license agreement and require
them to delete any copies of Nature materials they printed or downloaded
during the term of the agreement.  The library cannot simply request, it
must ensure that the copies of the material are destroyed.  (If "procure"
has a different meaning, please let me know.)  Furthermore, under section
10.4 of the Agreement, Licensee is liable for damages (including
attorney's fees) resulting from a breach of the license agreement.  
Failing to destroy all copies held by Authorized Users after termination
of the license agreement is a breach of the license agreement.

As a compromise, Licensees may wish to agree to make reasonable efforts to
destroy materials held by Authorized Users.  Licensee's obligation to do
so should be completely fulfilled by placing a notice on the library
website and/or delivering notice to Authorized Users that they must
destroy the material.  Procuring the destruction by Authorized Users of
the material is not within the Licensee's control.  It is completely
unreasonable for Licensor to ask Libraries to take this action.  
Destroying material within the Library's control and on the Library
premises is one thing; destroying information among the personal effects
of Authorized Users who may not be affiliated with the library any longer
(graduated students, former professors) is another.

The deeper problem here is that this provision reflects the publisher's
belief that they own the content in whatever form.  Under the first sale
doctrine, once a physical copy of content is sold, the publisher/
copyright holder does not own that copy and the purchaser can legally
resell, loan or destroy that particular physical copy as the purchaser
pleases.  Publishers (or at least the publisher of Nature) does not
believe the first sale doctrine applies to digital information.  In their
view, if the DMCA is not sufficient protection for digital content,
unreasonable (but legally enforceable) provisions in license agreements
will provide added protection.

Duncan E. Alford, Esq.
MLIS Candidate
Univ. of South Carolina, 2001



----- Original Message -----
From: "David Goodman" <dgoodman@Princeton.EDU>
To: "'liblicense-llistsyaleedu" <liblicense-l@lists.yale.edu>
Sent: Thursday, May 03, 2001 4:40 PM
Subject: Nature Contract Provisions

> Please pay special attention to section 4.5.
>
http://www.nature.com/help/sitelicences/licence_agreements/nature_americas_c
orp.pdf
> --
> David Goodman
> Biology Librarian
> and Co-chair, Electronic Journals Task force
> Princeton University Library
> Princeton, NJ 08544-0001
> phone: 609-258-3235
> fax: 609-258-2627
> e-mail: dgoodman@princeton.edu