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Re: liability language 

Keith, I think the model liability language developed by your lawyer is
sensible and straightforward. We here at Infonautics have taken a similar
approach in our institutional subscriber agreements for our Electric
Library research and reference service. Basically, we state in our
agreement that the subscribing institution is not responsible for
unauthorized use or infringement of the Electric Library service, content
provided on the service, and software provided to use the service as long
as 1. the unauthorized use/infringement occurs without the institution's
consent, 2. the institution notifies us of any unauthorized
use/infringement of which it becomes aware, and 3. the institution takes
all reasonable steps to cause any unauthorized use/infringement to stop. 

Although we are not a publisher, but rather a distributor of publishers'
content, we have many of the same concerns as publishers regarding
unauthorized use and infringement. This approach has seemed to work well
for us and the reaction from our customers has been very positive as far
as I'm aware. We're always looking for ways to improve, however, and I'd
welcome any comments or suggestions. 

-Jerry

----------------------------------------------------------
Gerard J. Lewis, Jr.
Vice President & General Counsel
Infonautics Corporation
610/293-6894 (voice), 610/971-8859 (fax)
glewis@infonautics.com
----------------------------------------------------------

Keith Seitter wrote:

In my position overseeing a scientific society's publications, I have been
following all the discussions on this forum with great interest, and have
learned a lot from all that many of you have shared.  An interesting
aspect of several of these threads is that it appears many of you (though
clearly not all) in the library community are successful in getting
publishers to change the language in their agreements (whether it is
liability language or other clauses) to be more acceptable.  Given the
time and effort it must take the publishers to negotiate all these
modifications, I can't understand why they try to push the original
language to begin with.  At the American Meteorological Society we have
had the good fortune to work with a terrific intellectual property lawyer
who helped us draft what I believe to be one of the better online license
agreements out there.  Her working philosophy was to make the agreement
simple and to have it reflect realistic expectations for the partnership
between the AMS and the library that signs it.  Specific to the liability
discussion that has been going on here, the AMS agreement states the
following: 
     "This Agreement is enforceable only against and by the parties who
have executed it; the Agreement neither creates nor restricts rights to
third parties. AMS understands that the Subscribing Institution is unable
to practically enforce the terms of the Agreement for third parties. 
However, AMS asks that the Subscribing Institution agree to make
reasonable efforts to take appropriate action should they become aware of
any misuse that would violate the terms of the Agreement and that the
Subscribing Institution continue to promote an environment that does not
allow for abuse of the terms of the Agreement."  I must say I am baffled
by publishers who push the sort of harsh language some of you have
described, and would be interested in hearing from some of them on this
forum as to why they feel they should.  Librarians have a long history of
working diligently to get patrons to comply with copyright and license
provisions (including corporate librarians in my experience, so I don't
see reason for distinction there), and it seems the publishers should
trust the librarians to continue in these practices.  Keith Seitter On
Tue, 6 Jan 1998, Kimberly Parker wrote:  > I recently ran across a license
that provided a list of appropriate uses > of the data and included a
sentence that said that the Institution signee > was liable for any
violations of these appropriate uses by the Authorized > Users (previously
defined in the contract).  > ... deleted text ...


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