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Re: Query Re Library Responsibility for Library Patrons' Use

Anthony makes a really interesting point. The real problem it seems to me -- and this is a much wider issue -- is that, at least in the United States, people have litigation as their only solution. There really is an absence of any substantial alternative system for resolving disputes. So we end up with a situation where people are so afraid of the court system (and the possibility of punitive actions) that they agree with their lawyers -- even when the advice they're getting is silly or not in their interest.

Take file sharing. We have hundreds and hundreds of lawsuits filed against people --many, on the face of it, somewhat silly -- say, an elderly 80 year old grandmother being sued for thousands of dollars because her eight year old grandson downloaded a song.

There could be a system of mediation and education that could solve the problem much more effectively. One wonders, perhaps, if it's also time to consider a national "Use tax" for digital materials. Everyone pays an extra 1 or 2 percent in income tax -- which goes to the producers of materials -- and, in return, we have a reduction or elimination in these restrictive licence agreements, lawsuits, etc.

(and, by the way, I really like our university legal team. We have a really cooperative relationship with them -- so this is not attorney bashing.)

Anthony Watkinson wrote:

I think that Karl raises a very sensible question. Why do publishers try to get this clause accepted?

I think I have the answer. The reason is that they listen to their lawyers. Lawyers always (in my experience) go for the clauses that are "best" for the organisation that employs them. Smaller publishers in particular do not feel able to fight back and substitute something more likely to be accepted.

I know very well that many librarians have real problems with university attornies. A good example is the curious insistence that an international publisher should be bound by state law and a reluctance to accept the neutral accomodation that the place of jurisdiction is missed out altogether.


----- Original Message -----
From: "Karl Bridges" <Karl.Bridges@uvm.edu>
To: <liblicense-l@lists.yale.edu>; "Jill Taylor-Roe"
Sent: Monday, February 26, 2007 8:15 PM
Subject: RE: Query Re Library Responsibility for Library Patrons' Use

I think a rough analogy to this is photocopiers.  In most libraries
there is a posting of the appropriate legal wording regarding
copyright and that's that.  If someone violates that it's their
responsibility not the library's.  (and I realize that some schools
do require everything to go through a copy centre and really enforce
this more).  In any event, I think people (and publishers) are
generally reasonable in accepting that there are limits on what we
can do in regards to user behaviour. People do what they want. It's
curious to me why publishers would even try to get such language in a
contract when it seems that most libraries immediately get it changed
or removed.  I'd be interested in seeing a posting from a publisher
who has this clause who could explain their reasoning.

Quoting Jill Taylor-Roe <Jill.Taylor-Roe@newcastle.ac.uk>:

I would echo Rick's response on this one - If there are any
licence clauses I feel uncomfortable about signing up to, I
usually run them past a very helpful contact in our Law School,
and if he thinks the terms are excessive, he will often suggest
an alternative wording which we then pursue with the
publisher/vendor.  We are usually able to reach an
accommodation that suits both parties. We are particularly wary
about indemnity clauses which imply that we accept
responsibility for things we clearly have no control over.

Jill Taylor-Roe