RE: Clarification on SERU proposal

["Katharine E Duff" <kduff@press.uchicago.edu>]

As a point of clarification, the University of Chicago Press's 
Terms & Conditions of Use is not a click-through document; that 
is, we don't require subscribers to assent to the T&Cs (whether 
in writing, by e-mail, or by clicking an "I accept" button) 
before they receive access. For those subscribers -- a minority, 
in our experience -- who for whatever reason cannot agree to 
implied acceptance of the T&C, we are happy to execute a formal 
license.

We'll leave the lawyers to determine if the traditional licensing 
approach, our approach, or the SERU approach is the most likely 
to stand up in court, since, in the 12 years that Chicago has 
published electronic journals, we have never had to resort to 
legal action to resolve an infraction of our T&Cs by our 
institutional subscribers. At some point, common sense and 
respect for the various stakeholders in the scholarly 
communication process -- good faith -- have to trump the need to 
dot all the legal i's. We believe that our experience is not 
unique, but if other publishers and librarians on the list have 
encountered a more litigious environment, we hope they will add 
their comments to this discussion.

Sincerely,

Kate Duff

Licensing & Permissions Manager, Journals Division
The University of Chicago Press

-----Original Message-----
[mailto:owner-liblicense-l@lists.yale.edu] On Behalf Of Sandy Thatcher
Sent: Thursday, March 22, 2007 5:20 PM
To: liblicense-l@lists.yale.edu
Subject: Re: Clarification on SERU proposal

But doesn't this "agreement," whether it takes the form of a 
"written license" or not, still come with "terms and conditions," 
which is what the recent post from the University of Chicago 
Press mentioned. And if one must accept these "terms and 
conditions" through some sort of click-on procedure, isn't that 
still a "license" fully valid in a court of law?  Our officials 
at Penn State frown on such click-on agreements, and we at the 
Press have had to negotiate individually a number of them anyway 
with the vendors offering them.

Sandy Thatcher
Penn State University Press

>Hi Joe,
>
>One of the defining discoveries in this process was to learn that as
>long as there was a written license agreement, it would be normal for
>each state institution to require that their own specific language be
>included, thus precluding any standardized agreement. In part to avoid
>this situation, we sought to develop a true alternative to a license
>agreement - rather than an alternative license agreement. Librarians
>and publishers have noted that often we are comfortable with an implied
>contract just as with a verbal agreement. Where there is general
>consensus, by avoiding the paperwork, we can streamline the process for
>anyone involved. Realistically, in many transactions there isn't a
>potential loss of substantial revenue for the publisher or risk for
>either publisher or library. With new publishers who would not take
>issue with terms supported by librarians, the SERU approach actually
>shortens the sales cycle and eliminates the delay of processing
>paperwork that isn't used.
>
>Further comments are welcome on SERU which is available now in draft
>form with FAQs on the NISO website.
>http://www.niso.org/committees/SERU
>
>Judy Luther MLS, MBA
>www.InformedStrategies.com
>610-645-7546 EDT
>
>-----Original Message-----
>[mailto:owner-liblicense-l@lists.yale.edu] On Behalf Of Joseph J.
>Esposito
>Sent: Friday, March 16, 2007 3:19 PM
>To: liblicense-l@lists.yale.edu
>Subject: Clarification on SERU proposal
>
>I am struggling to understand the following.  Can anyone help?
>
>>This document, "The SERU Approach to E-Resource Subscriptions:
>>Framework for Development and Use of SERU," presents a shared set of
>>understandings to which publishers and libraries can point when
>>negotiating the sale of electronic content. The framework offers
>>publishers and libraries a solution to the often burdensome process of
>>bilateral negotiation of a formal license agreement by allowing the
>>sale of e-resources without licenses if both parties feel their
>>perception of risk has been adequately addressed by current law and
>>developing norms of behavior.
>
>JE:  This is a legal matter, and I am not a lawyer.  My layman's
>understanding is that there is a distinction between a license (a form
>of contract, which in this case is between copyright holders and
>organizations that want to use their material) and the codification of
>that contract, typically in a hardcopy document, which is confusingly
>also called a license.  There is a difference, in other words, between
>the agreement (the license) and the codification in the form of a
>document (the, er, license), just as there is a difference between a
>marriage and a marriage certificate.
>
>Is SERU addressing license #1 or license #2?  If #2, as I suspect, then
>calling this the elimination of licenses is terrribly confusing, as
>many people would confuse #2 with #1 and thus think there is no binding
>agreement between the parties simply because no document had been
>signed.
>
>My understanding is that SERU is seeking to reduce administrative costs
>by eliminating paperwork and many aspects of negotiations (a worthy
>goal) and is working to improve the terms of licenses for its
>constituency by pointing to "best practices" (meaning good for
>libraries), also a worthy goal, though whether the proposal will have
>the intended effect is unknown.
>
>Any clarification of this situation would be appreciated.
>
>Joe Esposito