RE: "Double" Licenses

[Terry Cullen <tcullen@seattleu.edu>]

Colleagues,

I suppose in this exchange I should set out my basic framework/assumptions
for my analysis of the click-through debate.  First, I'm assuming we're
talking about information products, purchased by libraries that negotiate
terms with the publisher, including price and number of concurrent users
and terms of use.  The database is then most likely loaded on the library
network, and made available to the end-users.  [Or it may be a web-based
product, with IP or password restricted access.] The publisher knows at
the outset the kinds of users who will have access to the database, and
will price the product accordingly.  For example, I'm in a private
academic law library, but we do have practicing attorney patrons.  When I
negotiate a license agreement, the publisher is made aware that attorneys
will have access to the product.  They price it accordingly.  If we agree
to restrict the product to the law school community, they usually price it
lower.  If we agree to restrict it, then we are bound by that agreement.  
And if they agree that we can make it available to everyone, then we
assume we are paying for that patron group (who are commercial, not
educational, users).

Second, I'm asserting that publishers have no right to restrict certain
uses of the products (in U.S. jurisdictions).  The Copyright Act grants
only limited rights to creators.  For many databases, copyright is only
available in the compilation.  For others, the publisher may hold the
copyright in the individual articles, or they may hold only certain rights
while the authors retain the rest, or the rights may all reside with the
author.  It's very difficult to know exactly what rights the publisher
retains with respect to individual articles in an information database.

Further, the rightsholder cannot restrict the public's access to the
materials for certain fair uses, and only retains the rights for a
specific statutory period, after which ALL rights revert to the public
(the material enters the "public domain").

This balancing of rights has worked well over time, to my mind.  But a lot
of publishers today want more, and are intent on using technology to grab
rights not available under the Copyright Act.  That's what click-ons are.

If a publisher actually owns the rights they are asserting, I would have
no problem with them protecting those rights.  But many of these click-ons
tell the user that they can't use information in ways that are their legal
right.  And as someone else mentioned, some publishers now assert "rights
in perpetuity," which I find outrageous.

CONFU, the Conference on Fair Use, attempted to draw some consensus on
fair uses in digital documents, but failed in large measure because some
major publisher would not agree to recognize ANY fair uses in the digital
world.

In the aftermath of CONFU, we are seeing more and more technological
measures that effectively eliminate fair uses, more and more restrictive
licensing, more and more claims to rights that do not exist under current
law.  This state of affairs worries me a great deal as a librarian
concerned with public access to information.

So, that's where I'm coming from.  I hope my tone hasn't been too
adversarial, and that no one is offended by my remarks.

I'll respond to specifics below.

On Monday, February 01, 1999 3:43 PM, MSPINELL [SMTP:mspinell@aaas.org]
wrote:
> Terry,
>
> Two points in response to this.
>
> 1) if librarians should never sign an agreement assuming
> responsibility for the actions of end-users, then what choice do
> publishers worried about protecting their intellectual property have
> other than to form separate agreements with the end-users? But you
> also seem to object to any sort of bothersome click-on agreements
> forcing the end-user to acknowledge their responsibility for using
> protected information appropriately. Indeed, you seem to be objecting
> to any sort of binding agreement that holds either users or
> institutions responsible for the actions of users. If end-users aren't
> part of the original agreement, what else is to be done to ensure that
> any user understands that they have obligations related to using the
> product?

I would not object to a click-on that said, for example, "Uses of this
product may be restricted under the Copyright Act."  Something like the
lovely sign taped to the copy machine, for example.  I do object to
click-ons that say, in essence, "You may not use this information for any
purpose other than those acceptable to the publisher."  The publisher many
not have ANY rights in the article the user wants to use, and is unlikely
to share any royalties with the actual rightsholder.

As far as agreeing to be responsible for the acts of end-users, I work
under the assumption that the publisher is already taking the patron base
into consideration when they sell the product.  You pay more or less
depending on the number and kinds of users you have.  If a user decides to
use violate the Copyright Act, then the publisher has recourse against the
user.  Why would you agree to be responsible for an end-user's violation
of the law?  The Copyright Act applies without a click-on to restrict the
end-user.

If click-ons merely educated users as to their rights and obligations
under law, I'd have no problem with them, but that's not the case.  They
instead tell people they can't use materials in ways that they are legally
entitled to use them.  Let me know if you ever see a click-on that admits
to ANY fair uses, or admits to any limitation on publishers' rights to
control the materials.  I'll be very surprised.

>
> 2) your message below seems to assume that the only purpose a
> publisher might have for forming contracts and gathering workstation
> identifying information (IP address) is so that they can sue someone
> if/when anything goes wrong. I know we're a terribly litigious society
> and all that, but my experience is that lawsuits are absolutely a last
> resort, and a very expensive one. Most publishers (well, I guess I
> should only speak for the one I work for, so AAAS) wouldn't even
> conceive of suing an individual user over a copyright infraction,
> except under extraordinary circumstances where we believed real damage
> was being done intentionally and persistently.

As I said before, certainly publishers don't sue individual users.  
First, in many cases "lesser misuses" are not uses reserved to the
copyright holder under the Act, or are cases where the user would have a
fair use defense.  Second, most users have no real money anyway, so
there's nothing to gain.  Third, if there's no "real damage" being done,
then there's no cause for complaint.  So why do you need to identify and
stop "lesser misuses?"  And who determines what constitutes a misuse, you
or a court of law?  Are fair uses considered in that determination?  Do
you fairly represent what rights you actually hold in the article(s) at
issue?  When you "educate" them, do you apprise them of their rights, or
only of your restrictions? If what you are trying to accomplish can't be
accomplished under the current law, finding other means harms the public,
doesn't it?

> We would, however, want the ability to identify and stop lesser
> misuses of our site. For this purpose, knowing the IP address is more
> than sufficient. We can identify where the problem is and which
> specific account the IP is authorized by. Then we would contact the
> account administrator, (not so we could sue them!!!) to ask their help
> identifying the problem-maker, and either 'educating' them about
> proper use of the site, or cutting off their rights to the system. If
> all else failed, we could of course cut off the access rights for the
> whole account -- a drastic action, but still way short of a lawsuit.
> And, I would note, this also falls short of holding the library or
> institution legally liable for the actions of its users: Even though
> the institution might suffer a consequence for users' actions (i.e.,
> losing access to the site), they aren't being held responsible for
> damages, etc. Assuming that the infraction we are contemplating here
> is a real one (i.e., not a case of fair use), doesn't this seem like a
> reasonable response? I know from your earlier comment that you are
> suspicious that publishers want end-user information so they can
> curtail fair uses. But how else would you suggest publishers and
> librarians form agreements that protect both parties' legitimate
> interests?
>

OK, assuming it's not a fair use, and that you own the rights you are
seeking to restrict, what's wrong with seeking an injunction against the
infringer?  If it's egregious, and ongoing, that seems an appropriate
remedy.  If you are seeking to curtail commercial uses, the Copyright Act
provides a remedy.  So what other "legitimate interests" are you talking
about?  What sorts of uses are you seeking to restrict?

CONFU has made me skeptical of publishers' claims about eroding rights.
You talk about protection of "legitimate interests," but I must assume you
include revenue/profits among those.  I believe your rights are adequately
protected by the Copyright Act, which was never meant to guarantee the
free flow of profits to publishers, but rather the free flow of
information/ideas.  I think publishers are unhappy with the balancing of
rights the Copyright Act provides and are trying to find ways to gain
additional control.  But my assertion is that if they don't have those
rights under the law, then they are usurping rights that belong to the
rest of us, including rights to materials in the public domain and fair
use rights.  (Give me another explanation for major media to be demanding
assignment of rights "in perpetuity and for all media" from authors).

Terry Cullen, Esq.
Electronic Services Librarian
Seattle University School of Law Library
950 Broadway Plaza, Tacoma, WA  98402-4470
Email:  tcullen@seattleu.edu
Phone:  253-591-7092  FAX:  253-591-6313