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

Rick Anderson noted of license terms: "...if you're willing to take it out,
why put it in?"

I participated in negotiating a license within the last six months, and
proposed a lot of revisions (both additions and subtractions) to make the
license more closely parallel the guidelines found in licensing documents
published by groups like the ARL and CIC. I was pretty amazed when they
accepted all of the revisions but one.

I'm not exactly sure what my point is here, except to say that, in some
cases, some people don't seem to be all that closely wedded to the terms and
conditions in their licenses.

Bernie Sloan

-----Original Message-----
From: Rick Anderson [mailto:Rick_Anderson@uncg.edu]
Sent: Thursday, May 25, 2000 11:52 PM
To: liblicense-l@lists.yale.edu
Subject: Rejoinder to Irving (Re[2]: We have met the enemy... )

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