Re: freebies and license terms

["John P. Abbott" <abbottjp@conrad.appstate.edu>]

My sense is that as a state university in a state prohibiting indemnity
language, we could not agree to the terms whether funds were exchanged or
not. But if the institution is not doing the agreeing and instead we shift
the agreement with the terms to the user's discretion at point of contact
with the supplier's site, should we catalog items having terms to which we
institutionally cannot agree, but which may have little consequence to the
user?

With for-fee products we do this all the time (require the user to agree),
but we vet the license first.  Do we owe users an in loco parentis duty to
shield them (by not pointing to the url)from accepting indemnity clauses,
etc. that may not be in their best interests?  The user likely regularly
clicks by this type of agreements in their own web explorations.  If we
point them to a disagreeable agreement, are we culpable as if we pointed
them to a swimming hole that may be unsafe if you ventured into some parts
(the part where the shark lives) even though it was water and swimming was
possible, under the assumption that is their duty as a reasonable swimmer
to look for a shark, even tho we knew it was there? Is there a tacit
understanding that we only point to safe sites?  This understanding
doesn't exist with the rest of the collection.

As to the copyright:  A question.  I am correct that Bartleby can
copyright their -expression- of the content even though the content is in
the public domain.  What they copyright is the form of the container and
how it holds the content, but content independent of Bartleby is not
covered.  I could scan the content in from a lapsed copyrighted book and
do what I want with it and Bartleby has no claim against me.  Correct???

 ---
John P. Abbott
  Coordinator, Collection Development		
  ASU Libraries                           
  Appalachian State University            
  Boone, NC  28608-2026                   

phone:  828-262-2821  
fax:    828-262-3001  
email:  abbottjp@appstate.edu


============

Kimberly Parker wrote:

[snip]

> 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).
> 
[snip]
> 
> 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
> -------------------------------------------------------------
> 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
> -------------------------------------------------------------