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RE: Clarification on SERU proposal

[MOD NOTE:  John Cox is also a trained, experienced attorney]

Hi Karen,  We do have two lawyers in the Working Group:

Robert Oakley who is on the faculty at Georgetown University Law 
Center and Deborah Gerhardt who is the Copyright & Scholarly 
Communications Director and adjunct law faculty at the University 
of North Carolina Chapel Hill Libraries

We've been through our own learning curve as a Working Group on 
this topic and are now realizing the extent of clarification that 
is part of introducing SERU.

Judy Luther MLS, MBA
610-645-7546 EDT

-----Original Message-----
[mailto:owner-liblicense-l@lists.yale.edu] On Behalf Of Karen Tschanz
Sent: Monday, March 26, 2007 6:10 PM
To: liblicense-l@lists.yale.edu
Subject: RE: Clarification on SERU proposal

Perhaps the intent of the drafters should be retained, but 
someone with legal background should be added to the drafting 
group to advise on achieving the intent without undue legalese? 
Just a thought. kst

Karen S. Tschanz,  M.L.S., M.B.A., M.S.O.D.
Asst. Prof./Chair, Content Management
Robert B. Greenblatt, M.D., Library, AB-241 Medical College of Georgia
Augusta, GA 30912
E-mail: ktschanz@mail.mcg.edu

>>> "John Cox" <John.E.Cox@btinternet.com> 3/23/2007 6:35 PM >>>

To clarify (and, I fear, introduce some murky complexities to) 
the postings made by Judy Luther and Joe Esposito:

Even if there is no formal written agreement signed by both 
parties, a contract exists because a trading relationship exists 
in which goods or services have been provided in exchange for 
money.  There has to be offer and acceptance (i.e. you offer me a 
journal and I buy a license for access to it), consideration 
(i.e. I pay for it) and an intention to create legal relations 
(i.e. both parties expect to be bound by the transaction.  If a 
dispute ever arises, the contract will be implied from the 
conduct of the parties.  Indeed, if there were a written 
contract, but it never got signed, but the services were supplied 
and paid for anyway, that level of "part performance" would 
establish the contract.

So far, so clear.

The SERU guidelines are an admirable attempt to remove the 
time-consuming and expensive process of negotiating the wording 
in a formal written license for electronic scholarly content.

The problem with the draft SERU guidelines 
(http://www.niso.org/committees/SERU/SERUdraft0.3.pdf) as they 
are drafted is that they are rather general, and open to 
different interpretations by different parties.  They also state 
that "neither this statement nor this document constitute a 
license agreement".  It is therefore possible to argue that using 
the guidelines is not intended to create legal relations, and 
therefore they form no part of the contract that would exist. The 
contractual relationship then defaults to the conduct of the 
parties. Oh dear.  The SERU guidelines need to be much clearer 
about setting a set of standards, or rights and obligations, that 
CAN be unarguable incorporated into a contractual relationship.

As Sam Goldwyn said, a verbal contract is only as good as the paper that it
is written on.

John Cox

Managing Director
John Cox Associates Ltd
Rookwood, Bradden
TOWCESTER, Northants NN12 8ED
United Kingdom
E-mail: John.E.Cox@btinternet.com
Web: www.johncoxassociates.com