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Re: We have met the enemy...
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- Subject: Re: We have met the enemy...
- From: email@example.com
- Date: Wed, 24 May 2000 17:19:45 EDT
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While continuing to hope-and believe-that the ChoiceReviews.online license will some day be mentioned on this list in a more approving context, I'd like, if I might, to respond to Rick Anderson's original remarks that launched this particular discussion. CHOICE is clearly a special case in the publisher/library world. With a little luck, a recap of our situation-how it evolved, and where we hope it will go-will be both interesting in and of itself and useful as a stimulus for additional discussion. To begin at the beginning, the current ChoiceReviews.online license does, in fact, contain one of those "Dreaded Indemnification" clauses. And without necessarily agreeing with all of Rick's assumptions, I would have to concede that this particular clause probably is, from the perspective of many subscribers to this list, a "pretty awful one at that". All of which is to say that the CHOICE staff realizes the current CRO indemnification clause is not ideal from a library perspective. In the drafting of the current agreement, there was a great deal of give and take between CHOICE, ACRL, ALA, and ALA legal. The end product was necessarily a compromise, but one that has a number of redeeming features. As noted in last year's discussion on this list, the current CRO license is relatively short, extremely clear, and quite generous with respect to permitted uses, all at our request. It also contains no "venue" clause-another item we specifically requested and received. We did not fare so well with respect to the current indemnification language which reflects the preferences of ALA legal rather more than the CHOICE staff. On balance, however, the current agreement has proven serviceable. As of this writing, approximately 275 libraries have subscribed to ChoiceReviews.online, and we are adding additional customers at a rate of approximately 25 per month. Not very many of the customers who have signed up to date have expressed great concern about the current license. When this does occur, we are, as I indicated in last year's discussion on this list, eager and willing to negotiate. Negotiations have been infrequent to date however. We recently completed a study of our experience through January. Of the 141 subscribers involved, only 6 requested any change in the indemnification provision. In all 6 cases, we were quickly able to agree on a modified version that satisfied both parties. What is the bottom line here? Well, for one thing, I would have to agree that the current CRO license is not perfect. We hope, and expect, to modify it over time. But in the meantime, the current draft is a) not all terrible, and b) has proven workable thus far. In fact, I am, as of this writing, unaware of a single case in which the current license has prevented someone from subscribing to ChoiceReviews.online. I do not take this as an endorsement of the current license. That would be going too far. Nor can I guarantee that there is no one out there who, having read the current license, has decided not to subscribe. That would be regrettable in my view, but it is possible. To those individuals and institutions I can only say, as I said last year at this time, talk to us. So far, no one who has done so has gone away empty-handed. Having put that plea on the table, let me conclude with some more general remarks about the origins of publisher licensing agreements. The first, which is probably obvious but bears repeating even so, is that publishing staff do not draft licenses; lawyers do. Left to their own devices, what most publishers want from a license is the same thing most subscribers want-a minimum of hassles. Publishing is a terribly labor-intensive occupation. (One of the best known studies of the industry, Kadushin et al's Books: The Culture and Commerce of Publishing described publishing as one of the "greedy professions"-and they were not talking about money.) The last thing most editors, marketing staff, and customer service people need is to add one more time consuming task-like haggling over license provisions-to their daily workload. They don't have the time, and they aren't going to get additional staff. (There are far more similarities than differences in the typical staffing situation in most libraries and most publishing houses today.) So what most publishing staff want is the most hassle free agreement possible that does what it needs to do. This, of course, is where the lawyers come in, for it is the lawyers who help determine what it is that the license needs to do. It would be easy, in fact, simply to stop here and blame the whole current mess on lawyers. Still, that wouldn't be fair. The truth is, what most lawyers try to do is exactly what they're paid to do-protect their clients. And in order to do this, they necessarily worry not about the "normal" cases but the "extreme" ones. In drafting things like indemnification clauses-a standard feature of contracts worldwide-they do not ask themselves, "How will a typical customer/subscriber use this product"? Rather, they ask, "How might someone who was out to deliberately damage my client-a real crazy-abuse this product?" "What could such a person do, and what legal tools do I have with which to protect my client in the event we have to go to court-or better yet to deter anyone from even making the attempt?" Lawyers get paid to think this way, and that's what they do. The results are fairly predictable, even understandable. Also ubiquitous, as anyone who has ever actually read their mortgage, lease, or credit card agreement will surely recognize. All of which is to say that the current CRO license-including the Dreaded Indemnification clause-has been shaped, much like any other publishing license, by conventional legal concerns. Furthermore, once you ask the lawyer's question-What could a crazy person do with this product to damage my client, i.e. ALA?-the concerns involved make a bit more sense. For in truth, there are no technical barriers that would prevent someone who obtains access to ChoiceReviews.online for the deliberate purpose of damaging ALA and CHOICE from making the attempt. A CRO subscriber has access to a database containing every CHOICE review published since 1988. It wouldn't be easy to download the entire database, but it is technically possible. (And it will only get easier with later versions of the product.) It would be harder still to resell this material without eventually being found out, but a bold or irresponsible person might figure that he (or she) could pull it off. How likely is all this? Not very in my personal estimation, but that's not the point. The point is that this kind of commonsensical argument doesn't necessarily carry a lot of weight with lawyers. They have a different perspective, one that makes professional sense to them, and that often decisively influences their choice of language when drafting legal agreements-particularly in relatively new and uncharted areas like electronic publishing. Which may, or may not, explain how and why we are where we are in the brave new world of electronic licensing. And with that, having gone on far too long, I will stop. Irving E. Rockwood Editor & Publisher CHOICE 100 Riverview Center Middletown, CT 06457 (860) 347-6933 (860) 704-0465 firstname.lastname@example.org ______________________________ Reply Separator _________________________________ Subject: Re: We have met the enemy... Author: <email@example.com> at INTERNET Date: 5/23/2000 5:25 PM John Cox is right... Fear is the underlying driving force for many of us who have had financial responsibility for launching electronic journals. I should have stated it as fear of loss of revenue in the new and untried arena of electronic journals which drives many of us. In this new arena, in which we are all still experimenting to find things that work, lawyers are often not helpful. When we at the American Astronomical Society set out to develop our license in 1995, we held extensive discussions with the library community (including Ann Okerson, than you Ann). We wanted to avoid burdensome restrictions and make it easy to start using the electronic journals. It was our publisher's lawyers who wanted us to insert all kinds of restrictive provisions, even though we owned the journal. We prevailed in the end, saying that we were willing to take any risks involved in keeping the license simple. It was the feedback from our library community, who assured us that they would continue to subscribe in paper, which gave us the necessary confidence to approach these negotiations with a sufficient lack of fear that we could make a sensible license. These discussions between us (publishers and librarians) had the tone of mutual collaborative partners in the information chain trying to find the best ways to make the most effective use of the new electronic environment. In fact, coming up with a simple, mutually acceptable license was an enjoyable exercise which strengthened the bond between us and our library community. Knowing this was a time for experimentation, we were willing to start with simple terms and to rely upon the libraries not to abuse the new capabilities. In retrospect, our move to electronic publishing has not been particularly risky, certainly not as risky as it seemed at the time. As for John Cox missing the Pogo reference, I don't suppose the Chauncey M. Depew* ever made it across the Atlantic... Cheers, --Peter-- * The name of Pogo's rickety boat in which he traversed the swamp, went fishing, etc. _________________________________________________________ Peter B. Boyce - Senior Consultant for Electronic Publishing, AAS email: firstname.lastname@example.org Summer address: Winter: 4109 Emery Place, 33 York St., Nantucket, MA 02554 Washington, DC 20016 Phone: 508-228-9062 202-244-2473 _________________________________________________________