Re: Query Re Library Responsibility for Library Patrons' Use

[Karl Bridges <karl.bridges@uvm.edu>]

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.
>
> Anthony
>
> ----- Original Message -----
> From: "Karl Bridges" <Karl.Bridges@uvm.edu>
> To: <liblicense-l@lists.yale.edu>; "Jill Taylor-Roe"
> <Jill.Taylor-Roe@newcastle.ac.uk>
> 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.
> > >
> > > regards.
> > > Jill Taylor-Roe