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Perhaps because of language in license agreements from so many
e-publishers, i.e. licenses that demand indemnity or exclusions from
liability or complete coverage of their liability by state institutions,
or venue restrictions, and contracts that exclude walk-in users, who
really can't be excluded from public institutions, some librarians have
argued that it doesn't matter what the contract says.

It's unenforceable, so why waste time "negotiating". Just sign the thing
and get the access There are too many of these things out there to waste
time or breath or energy. (p.s. almost every license agreement i've seen
lately seems to have one or another of these clauses, ).
I haven't seen the argument in print, but have certainly heard it from
librarians who are more concerned about getting this stuff available ,
especially with short staffing and little trained assistance, than about
negotiating to get a license that is "legal" i.e. meets the demands of the
local (i.e. state) laws-- Just sign it, they aren't going to do anything
about it anyway.

When license discussions don't go anywhere, or don't happen at all, what
do publishers and other content providers think they are getting when they
get a signature from a state institution that doesn't meet a state's
requirements ,?

I'd be interested in some content providers with uncontested license's
from state institutions, with states with these provisions and asking
their lawyers what it is they have in their hands. Does it really mean
anything? Is it enforceable?

I'm really puzzled at this. Do the lawyers working with these content
providers advise their companies that if IF they are signed off on by
individuals in U.S. State institutions, they are not going to be
enforceable under a specific state's contract-law systems? Do these
license agreements mean anything???

Are they advising content providers to sue the individual librarian who
signed if there are violations, and to expect indemnification from the
individual who signed contrary to institutional policies?--

If the person who signed the contract did so ignoring or even flaunting
state law, are content providers going to try and sue the state
institution anyway-- (under the providers choice of venue-over a violation
originating in another state??)--a venue choce the state's laws explicitly
state must be their own for contract law purposes?

The individual signing may be unaware of state law, or may believe the
license is unenforceable. And under the rubric of service to patrons is
just getting access without the hassle of negotiation.

Chuck Hamaker

> -----Original Message-----
> From:	John Cox [SMTP:John.E.Cox@btinternet.com]
> Sent:	Friday, May 12, 2000 6:06 PM
> To:	liblicense-l@lists.yale.edu
> Warranties and indeminities are almost universal in contracts, and
> particularly in intellectual property licenses which involve, by
> definition, intangible assets.  They put boundaries around both the
> supplier's and the customer's repective promises and liabilities.  The
> customer needs protection against breach of the promise that what is being
> licensed is legal and authorised.  The licensor needs reassurance that the
> licensed material will be used in accordance with license terms.
> In the case of the licenses on www.licensingmodels.com, the indemnities
> are as follows:
> 1.  The Publisher warrants that the material is not in breach of anyone's
> else's rights, and indeminifies the Licensee against any loss.
> 2.  The Licensee indemifies the Publisher against abuse of the material.
> This indeminity is strictly limited to abuse that is caused or knowingly
> assisted or condoned by the Licensee, and excludes abuse by a User of
> which the Library is unaware.  The indemnity text is prefaced by the
> phrase 'subject to applicable law'.
> In the Commentary to each of the licenses on www.licensingmodels.com,
> specific attention is drawn to the consitutional inability public
> institutions in some US states to accept limitation of the supplier's
> liability or to give indeminities - North Carolina is a cogent example.  
> The Commentary recommends the indemnity clauses be deleted in these
> circumstances.
> However, the position is different from state to state.  And these
> licenses have been created to be used internationally.  The constitutional
> issue that Chuck Hamaker describes is unique to states in the USA.
> In these licenses, I have attempted to strike a balance between the
> interests of each party to the license, and to restrict the indemnities to
> issues that go to the heart of the license itself.  This was the approach
> adopted by both publishers and librarians in the UK in creating the
> PA/JISC license, which served as one of the models for these licenses.  
> They are model licenses that can, of course, be adjusted during
> negotiation to cover the position taken by Diane Frank.
> When examining these licenses, it is important to read both the license
> text itself AND the associated commentary, where many of these issues are
> raised and the options explained.
> John Cox
> John Cox Associates
> The Pippins, 6 Lees Close, Whittlebury
> TOWCESTER, Northants NN12 8XF
> Tel: +44 1327 857908
> Fax: +44 1327 858564
> E-mail: John.E.Cox@btinternet.com