RE: Assistance with disturbing audit clause

["Schwartz, Judy" <Schwartzj@trocaire.edu>]

Eleanor - the first thing I'd look at is your state's 
confidentiality of library records' law.  We are not able to 
provide that information here in NY.  I had a similar (but much 
smaller) incident several weeks ago. We are just beginning to do 
streaming video, with access through our course management 
system, Moodle.  The paragraph in the license said we had to give 
the vendor unlimited access via username and password TO our CMS 
for the period of the license (3 years).  Additionally, we had to 
put the username / password on the signature sheet.

After I received the contract, I emailed the rep and said - no, 
this was a deal breaker; we weren't going to do that. Oh, she 
said - I didn't know that was there; just cross it off or I can 
send a new one. I asked for a new one. This new wording was 
modified so that access is for a much smaller amount of time. Now 
schedule B says: "access to online learning system to verify 
appropriate use of Licensed Material. This can be a temporary 
access".

My sense is that your vendor was burned by non-legitimate usage 
in another venue; you might point out that 1) you do maintain 
accurate records for your own purposes, (2) your usage has never 
gone beyond what is reasonable, and you don't appreciate being 
lumped in with others - or some such language. Perhaps using your 
phraseology of 'turning it off at the pump' would get their 
attention?
Judy


Judith K Schwartz
Director of Library Services
Trocaire College - the Mercy College of WNY
360 Choate Ave
Buffalo NY 14220-2094

Please include my message in your reply.

-----Original Message-----
From: owner-liblicense-l@lists.yale.edu 
[mailto:owner-liblicense-l@lists.yale.edu] On Behalf Of Uhlinger, 
Eleanor (CIV)
Sent: Tuesday, March 22, 2011 11:11 PM
To: liblicense-l@lists.yale.edu
Subject: Assistance with disturbing audit clause

I am grappling with an Ebooks license that contains a new AUDIT 
clause that I have never encountered in another license in my 
more than 14+ years of negotiations.  We have subscribed to 
Ejournals & Eproceedings from this publisher for years and abided 
by all terms with no incidents of abuse.

Basically XYZ Publisher is requiring that we maintain accurate 
records concerning our use of their ebooks (examples: usage logs, 
ids of Authorized Users, IP address, and proxy servers) for 1 
year following usage AND MOST DISTURBING that "in instances where 
there is sustained misuse of the eproduct that cannot be 
resolved" my institution is required to provide records to 
Publisher for audit/review or permit XYZ Publisher to come into 
our institution (with 5 days notice) to audit and inspect our 
systems and records.

Needless to say this is a complete non-starter for us on so many 
levels not to mention the  implied insult to our institutional 
integrity and processes that Publisher has no confidence in our 
professional ability to solve problems and/or manage information 
assurance/security processes on our network (And, just "what" 
constitutes "sustained misuse"!?).  I have been successful in 
getting them to alter some of the original harsh wording but even 
so, it still does not pass Library, Legal, or Information 
Technology review at our institution so none of us will sign off 
on it.  Publisher insists they need recourse for situations we 
cannot resolve locally (hmm, I thought that was already covered 
in the turning it off at the pump portion of the license!)

Has anyone on the list encountered such a clause and have you 
successfully negotiated it out of such license or how have you 
dealt with it?

Thanks,
Eleanor