"Double" Licenses and user "needs"

[Peter Graham <psgraham@syr.edu>]

anthony.watkinson wrote:

> [...]I am very keen on the instructional and not strictly legal element in
> contracts  or licenses. I know that many end users have difficulty
> remembering what they can or cannot do. They do want guidance. [....]

In the same vein as my previous message, let me try to get at some
underlying assumptions here that I don't see we should accept.  The first
is on the need for repeated, frequent notice.  In the video environment,
whether cable or network, we do not see notices -- clickable or not -- on
broadcast programming.  Yet there is a considerable body of intellectual
property law protecting broadcast material which is considered to have
some noticeable value.  (I think one could make the case that program
creators license their material to cable distributors who no doubt
consider their viewers as "end users".) Note also the very brief copyright
warning on many videotapes, which has not changed in essence for a decade
or two from being a vaguely uninformative FBI warning and which everyone
is aware is commonly fast-forwarded through.

The fact that this similar environment gets treated differently makes me
dubious of the essential need constantly to provide pseudo-legal
information to users in an academic environment who are intent on dealing
with subject content and not prepared for such distractions.  And of
course such "notices" do not exist in the print environment, beyond
copyright notices appropriately placed on t.p. versos and at bottom of
first pages of journal articles, where they serve adequate notice and do
not impede use or thought processes.  To suggest the analogy of users
acknowledging intellectual property rights at every use of an article or
book is immediately to dismiss the idea as absurd.

The second notion needing question is the idea that end users want
guidance. They may, but not at the immediate point of use, any more than a
driver wants legal guidance flashing up on the windshield as he/she turns
the ignition key. Community education can be carried out by many means,
and point of use is seldom the best.  It's worth noting that the "need" of
users for guidance is a need created by the added complexity of the
license regime over the copyright regime.  Users may not have been
familiar with copyright details, but most people know such an idea exists.  
I submit that most people still think copyright is what controls their use
of library-licensed materials.  A click-through screen is unlikely to
persuade them differently.

Notice that I am very aware of the different regimes here:  copyright vs.
licensing.  I am not arguing that a licensing regime can legally act the
same as a copyright regime and still give the property owner the
protection they want.  I am arguing at a deeper level:  the contract
regime in a scholarly communication environment is inhibiting, intrusive
and corrosive.  I am trying to be sure that we don't slip into discussions
of expedience ("how best to provide the click-through license") when in
fact we should be finding ways to assure the responsible free flow of
information as it has successfully existed to this time. 

-- Peter Graham
Syracuse University Library 
psgraham@syr.edu 
Syracuse, NY 13244-2010
315/443-2573 
fax 315/443-2060