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Re: Confidentiality clause is back in at Nature

Rick,

I don't like confidentiality clauses any more than anyone else, and some of them are really irritating (e.g., Google's insistence that everyone who attends certain trade shows sign a NDA--so much for open content). I don't think you have your examples right, though. Dick Gottlieb's post was pretty much on the money.

You can tell anyone you want how much you paid for a car, but if you own a dealership, can you announce trade data to the world? I have never seen a dealership's contract with a manufacturer (they may be under NDA!), but I doubt it. You can tell anyone you like how much you paid for a book at Barnes & Noble, but just try to get the precise terms of the dealings between publishers and B&N. (There have been lawsuits fought over this one.)

More to the point is how people "play" with the rules. You can raise the minimum wage (as is about to happen in my hometown--and I support it), but you have to expect that more people will be paid off the books. You can have stringent copyright requirements for publications and, surprise, otherwise law-abiding people sneak over to the photocopy machine or press "forward" in their email client. You can ban certain drugs and give rise to a world of underground trafficking. Take a gander at what people do with the U.S. tax code.

A practical outcome of public posting of licenses is that there can never be any negotiations. Thus there never can be any customization of contracts to account for special circumstances. This will mostly work most of the time, but one-size-fits-all doesn't fit everyone all the time. Try on one of those terryclosth bathrobes you find in hotel rooms and tell me if you are "of the people" or "of the exceptions." In trade publishing today you have what is mostly an unofficial efficient market for author-publisher contracts, where the major houses pay the same royalties (that is, 7 1/2 percent of the list price for paperbacks, etc.). This is almost never even discussed, which means that books that don't fit the pattern may get overlooked (e.g., books with high manufacturing costs).

The inevitable outcome of no confidentiality clauses is that all the contracts will begin to look alike over time. How then will a publisher differentiate an offering? By spending marketing money to stimulate demand, money that could have gone into different discounts for libraries. As Henry Fielding said (perhaps alluding to another author), if you lock Nature out at the door, she will come in through the window.

Joe Esposito

----- Original Message -----
From: "Rick Anderson" <rickand@unr.edu>
To: <liblicense-l@lists.yale.edu>
Sent: Monday, October 02, 2006 9:23 PM
Subject: RE: Confidentiality clause is back in at Nature

Strongly disagree with Rick's premise. Using his examples

1. Automotive- Not relevant. It's not what you telling me what
you paid for the car. It's whether the dealer will tell you
what he sold the identical car for, to the last customer. Try
to get that number.

The context of this discussion is confidentiality clauses.  No
automotive dealer (that I'm aware of, anyway) will ever make you
sign a confidentiality agreement, forbidding you to discuss what
you paid for the car he sold you.  I may not have much luck
getting _him_ to tell me what you paid, but there's nothing to
stop _you_ from telling me what you paid.


2 Bookselling. Not at all easy to know. Yes easy to get the
list price. But most publishers' discount schedules, to
libraries, to consumers, to consortia, for multi-copy sales,
vary all over the place.

Again, you're right that the prices vary.  But it's very easy to
find out what any particular library's or consortium's discount
structure is -- all you have to do is call up the librarian and
ask.  (Unless they've agreed to a confidentiality clause.)

My response to each of your other examples is the same: in none
of the industries or markets that I cited is it common for
pricing to be kept contractually confidential.  In many of them,
at least the list price for the product is easily and publicly
available -- special deals may have taken place in particular
instances, but they're rarely (if ever) protecting by vows of
silence.

----
Rick Anderson
Dir. of Resource Acquisition
University of Nevada, Reno Libraries
rickand@unr.edu