Dave's version (RE: License problem with American Geophysical Union)

["Rick Anderson" <rickand@unr.edu>]

> 1)  Enforcement of indemnification is predicated on our use of the
> licensed materials "...NOT IN ACCORDANCE WITH THIS LICENSE....PROVIDED
> THAT NOTHING IN THIS LICENSE SHALL MAKE THE LICENSEE LIABLE FOR BREACH
> OF THE TERMS OF THE LICENSE BY ANY AUTHORIZE USER PROVIDED THAT THE
> LICENSEE DID NOT CAUSE, KNOWINGLY ASSIST OR CONDONE THE CONTINUATION OF
> SUCH BREACH TO CONTINUE AFTER BECOMING AWARE OF AN ACTUAL BREACH HAVING
> OCCURRED."

This isn't bad, actually -- I've agreed to similar language in other
licenses.  The only problem, to my mind, is that it's set in the context
of indemnification.  I'd prefer that it be set in the context of breach.  
In other words, what you seem to have here is a license that says you
indemnify AGU against claims stemming from user behavior, but that the
indemnification is only enforceable given the library's clear negligence.  
I'd worry about how "condone" might end up being interpreted.  I'd be more
comfortable with a license that leaves the word "indemnify" out entirely,
and instead says that a user's misbehavior will not constitute a material
breach of the license on the library's part unless (etc.).  If you
indemnify, the worst-case scenario can be huge for the library; if you
breach the license, the worst-case scenario is limited to the terms of
remedy provided in the license.  Or so it seems to me.

-------------
Rick Anderson
rickand@unr.edu