Re: "Double" Licenses

[David_Strauss@silverplatter.com]

The "double license" issue highlights a particular problem for which both
publishers and libraries have a community of interest:  How to make the
actual end-user responsible for his/her acts.

The publisher needs to know that the use restrictions on its product, and
its reasonable limitations of liability, will be binding on the end-user.
The library needs to know that the library will not be liable to the
publisher if the end-user violates the use restrictions, so long as the
library has used reasonable efforts to prevent such violations.

In order for the publisher to enforce its license provisions against an
end-user, there must be a direct contractual relationship between the
publisher and the end user.  The license that the library accepts in order
to obtain initial access to the product does not necessarily ensure such a
direct relationship.  So it is important for the publisher to put the
license terms in front of the end user and obtain an express or implied
acceptance of those terms.  This both educates the end-user and also
permits direct enforcement by the publisher against the end-user if
warranted.  In this way, the library avoids being the end-user's "insurer"
when the library has done nothing to cause or permit the violation.

What if the library negotiates a license that differs from the publisher's
standard on-screen license?  This is a good question, and the potential
resolutions vary.  Perhaps the simplest way is for the on-screen license
to recite that the terms of the license accepted by the library will
supersede conflicting terms in the on-screen license.  Presumably those
negotiated differences favor the end-user, so the library may wish to
notify the end-users of such differences by means of a networked message
that accompanies the start-up of a user's session.

David Strauss
Associate General Counsel
SilverPlatter Information, Inc.
100 River Ridge Drive
Norwood, MA  02062
Tel: 1-800-343-0064 ext. 245
e-mail: davidst@silverplatter.com

__________________

Ann Okerson <ann.okerson@yale.edu> on 01/20/99 08:16:48 AM

Already this year I've seen two electronic information "deals" that
require two levels of license.  That is, the institution (library)
negotiates and signs a license with the provider AND then once the reader
goes to the site to retrieve the information, he or she is asked to
"click" to agree to a set of terms and conditions.  I.e., two license
agreements are in play: one with the institution and one with each
individual reader. Perhaps this has been happening to us all along, and
I've only noticed this because of reading two such licenses within a few
days.  The "click" is NOT the same as "dear reader, here you are and here
are our working rules" -- rather, it is an attempt to create a legal
agreement between the provider and the individual. In each case, the terms
are reasonable enough, but I question that the readers fully understand
the kinds of liabilities that they are accepting by clicking.  And, as we
have heard/discussed ad nauseum, "click" licenses are also problematic in
that there is no possibility for the reader to query or negotiate with a
form on the web.

In any case, it seems to me that the information provider's deal needs to
be either with the INSTITUTION, who negotiates and accepts all the
overarching responsibility for compliance with the license, OR with the
READER, leaving the institution out of the relationship.  There is an
incompatibility between asking for both. Comments please from you
publishers, librarians, and lawyers out there?

Ann Okerson
Associate University Librarian
Yale University
Ann.Okerson@yale.edu