Rejoinder to Irving (Re[2]: We have met the enemy... )

[Rick Anderson <Rick_Anderson@uncg.edu>]

Thanks to Irving for a very thoughtful response and a valuable
contribution to the ongoing discussion of this issue.

A couple of thoughts in response to his response:

1.  If it's true that "of the 141 subscribers involved, only 6 requested
any change to the indemnification provision," then I'd suggest that that
has less to do with the acceptability of the provision than with our
profession's relative inexperience with license agreements.  I'd be
willing to bet that at least half of those 141 subscribers are legally
prohibited from agreeing to indemnify publishers, although many of them
may not know it.  Yet.

2.  It's certainly true that the current CRO license "isn't all terrible."  
The problem is that it doesn't take very much terribleness to make a
license unacceptable to many institutions.  More to the point: as far as
I'm concerned (and I suspect that for many others it's the same), there's
not much point in thinking about licenses on a continuum of "goodness" or
"badness."  While I agree with my colleagues that simpler licenses would
be more convenient, my ultimate criteria are binary: either the license is
legally acceptable or it isn't.  I don't mind complexity if the terms are
acceptable, and I'm not impressed by simplicity if my institution can't
legally agree to those simple terms.  The CRO license could improve in a
million ways and become a much "better" license, but unless the
indemnification clause comes out, it's a dead issue for my library.  
(Irving points out that Choice has shown itself willing to remove that
clause in individual negotiations, but if you're willing to take it out,
why put it in?)

3.  Last of all, I want to point out that while it's true that lawyers
(not publishing staff) write the licenses, it's also true that the lawyers
writing those licenses are doing so at the publisher's behest.  If you
don't want an indemnification clause in your license, tell your lawyers to
take it out.  If you want to sell to libraries, many of which are public
institutions and face a fairly consistent set of legal restrictions, why
put yourself to more trouble?  Leave out the stuff that you know they
can't agree to and save yourself some headaches.

Rick Anderson

On Wed, 24 May 2000 17:19:45 EDT irockwood@ala-choice.org 
wrote:

>      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      irockwood@ala-choice.org