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Re: "perpetual license"

Deborah has raised an interesting point.  I wonder if "perpetual" is at
all enforceable in a court.  There is a 'rule against perpetuities' in the
law of trusts that limits provisions to what is effectively two
generations.  I know of no case law in contract where the grant is to be
'perpetual', but I suspect most courts in common law jurisdictions would
have difficulty in applying it.

Let us leave the arcane mysteries of the common law on one side, and look
at the practicalities.

#1.  If the vendor were to accept a "perpetual" license, it would create
an obligation to maintain that product for ever.  But publishing and
database product compilation is not like that.  Products change.  They are
discontinued or replaced by a new, better, one.  No licensor that I know
would knowingly be locked in to "perpetuity".

#2.  If the agreement has a term of years to run, and is dependent on
annual subscription renewal, the use of "perpetual" is contradictory and
confusing.  If the license is for online journals, and library
discontinues the subscription to one or all of the titles, most licenses
provide for 'continuing access' to the volumes already paid for - an
analog of the print journal.  If it is for access to a database, access
comes to an end if the subscription is not renewed.  In both cases, the
use of "perpetual" is almost without meaning.

I would suggest a further consultation with the purchasing officer and, if
necessary, with the attorney.  Make sure the attorney understands what
content is being licensed and what the library really requires.

John Cox

John Cox Associates
Rookwood, Bradden
TOWCESTER, Northants NN12 8ED
United Kingdom
Tel: +44 (0) 1327 861193
Fax: +44 (0) 1327 861184
E-mail: John.E.Cox@btinternet.com

-----Original Message-----
To: 'liblicense-l@lists.yale.edu' <liblicense-l@lists.yale.edu>
Date: 10 July 2001 12:02 am
Subject: "perpetual license"

>Has anyone heard of the phrase "perpetual license?"
>A purchasing agent at my company has asked me to include the following in
>a license with a vendor:
>For the period set forth on the order form (the "Term") [a 12 month term
>September 2001 to September 2002], <Vendor Name> grants to <Customer> for
>the Term, a non-exclusive, worldwide, non-transferrable, perpetual license
>to use the Data and the Software ...
>When I asked her to further define "perpetual license,"  she sent me this
>-as per our attorney, "as opposed to having a finite term (eg 10 or 15
>yrs), a perpetual license has an infinite term into perpetuity."
>This is preferred as we have the right to use (as long as we pay per the
>terms of the agreement) without a limit on the license.  I don't know all
>the details but the term of the agreement is different from the term or
>life of the license.
>Has anyone heard of this before?  Possibly it is used more with software
>licensing than with information resources.
>Deborah Lenares
>Electronic Content Specialist
>Information and Library Services
>Air Products and Chemicals
>7201 Hamilton Boulevard
>Allentown, PA 18195