Re: Nature Contract Provisions

[David Goodman <dgoodman@Princeton.EDU>]

I doubt we will be able to convince most publishers that the first sale
doctrine applies. The way to deal with this, I suggest, is to insist on
contract provisions specifying that one is buying permanent rights to
access the content. The best wording I know of is the recent one from the
new CLIR license http://www.library.yale.edu/~llicense/standlicagree.html

> XIII. Perpetual License
> 
> Except for termination for cause, Licensor hereby grants to Licensee a
> nonexclusive, royalty-free, perpetual license to use any Licensed
> Materials that were accessible during the term of this Agreement. Such
> use shall be in accordance with the provisions of this Agreement,
> which provisions shall survive any termination of this Agreement. The
> means by which Licensee shall have access to such Licensed Materials
> shall be in a manner and form substantially equivalent to the means by
> which access is provided under this Agreement.

_______

jdalford wrote:

> 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