RE: Clarification on SERU proposal

["Sally Morris \(Morris Associates\)" <sally@morris-assocs.demon.co.uk>]

I'd love to know if anyone on this list, whether publisher or 
librarian, has ever been involved in legal proceedings because of 
infringement of an e-journal licence?  The publisher always has 
the 'ultimate sanction' of cutting off access - indeed, how many 
of you have even encountered this?

Consultant, Morris Associates (Publishing Consultancy)
Email:  sally@morris-assocs.demon.co.uk

-----Original Message-----
[mailto:owner-liblicense-l@lists.yale.edu] On Behalf Of Katharine E Duff
Sent: 27 March 2007 22:42
To: liblicense-l@lists.yale.edu
Subject: RE: Clarification on SERU proposal

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