freebies and license terms

[Kimberly Parker <kimberly.parker@yale.edu>]

Having gotten all of you tangled in manifest assent and the search for
Waldo, I have something else that is semi-related to raise.

When I was pulling examples of manifest assent licenses out of the
proverbial hat, someone (who will remain nameless unless they want to step
forward) sent me another example offline of a manifest assent license with
some problematic language.

http://www.bartleby.com/sv/terms.html is the User Agreement for
Bartleby.com, a commercial service that has converted many older and
classic materials and provides them freely on the web (with advertisements).

I'll get into some of the problematic language a little bit later, but the
interesting dilemma for me is as follows.

We have been aware here at Yale of the materials in Bartleby's, and there
has been a certain amount of interest in cataloging and linking to some of
the titles.  We do "collect"/"select" materials freely available on the
web for inclusion in our library catalog, and we have criteria which these
resources must pass:
http://www.library.yale.edu/CDC/public/documents/eresourceCat.shtml

I'm beginning to think we need to add another criteria to this list : that
of an acceptable license or terms of use.

We definitely "vet" licenses of manifest assent or other types when
library funds are involved in a resource (whether we pay outright for the
e-resource, or we pay for the print thing that this e-version comes with.)
The question is: how much vetting of end-user agreements should we be
doing if we as a library have chosen to highlight, facilitate access to,
or "select" into our catalog a free resource with NO library collection
funds involved?

If a free resource has an ugly end-user agreement, should we try to
negotiate it?  Should we leave it up to the end user?  Should we as a
library refuse to "collect" it?

Having posed my questions, here are few of the problematic passages I
found in the Bartleby terms.  Remember, this is a freely available
resource. There's nothing requiring you to identify yourself, supply an
email address, or anything else.  You could access it from a public
location in complete anonymity.

***Sections 2.1 and 2.2 talk about copyright.  Yet much of the content in
Bartleby is in the public domain.  Section 4 talks about indemnification.

All materials published and provided on the Service ("Content") are
protected by copyright, trademark, and other applicable intellectual
property and proprietary rights laws and is owned, controlled, and/or
licensed by Bartleby or the party credited as the provider of the Content.
"Bartleby", "Bartleby Library", and "Bartleby.com" are trademarks of
Bartleby. You shall abide by all copyright notices, information, or
restrictions contained in any Content accessed through the Service.

The Service and its Contents are protected by copyright pursuant to U.S.
and international copyright laws. You may not modify, publish, transmit,
participate in the transfer or sale of, reproduce, create new works from,
distribute, perform, display, or in any way exploit, any of the Content or
the Service (including software) in whole or in part.

You agree to defend, indemnify and hold harmless Bartleby (and any of its
parents, subsidiaries, affiliates, employees, agents, third party content
providers, or licensors, and their respective directors, officers,
employees, and agents) from and against all claims, liability, and
expenses, including attorneys' fees and legal fees and costs, arising out
of your use of the Service or your breach of any provision of this
Agreement.

--Kimberly Parker
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Kimberly Parker
Electronic Publishing and Collections Librarian
Yale University Library
130 Wall Street              Voice (203) 432-0067
P.O. Box 208240              Fax (203) 432-7231
New Haven, CT  06520-8240    mailto:kimberly.parker@yale.edu
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