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Re: warranty of non-infringement and indemnification against claims

The whole 'need' for licences is questionable, especially in the 
context of a sale of a single title to a single institution. 
Selling a print journal to the University of XYZ has never 
required a licence; why should selling the same content in a 
different form make one necessary? The fact that the electronic 
form makes bizarre behaviour easier - for example one university 
in one country can easily ping content to all others in that 
country; or the publisher can restrict access in the event of 
non-renewal - is neither here nor there. Illegal replication and 
distribution by universities has happened in the past, and there 
already are ways of dealing with it. The idea that publishers can 
restrict e-access in the event of non-renewal is wonderfully 
bizarre. The analogy, in the print sesrials world, is that, in 
the event of non-renewal, the publishers storm into the library 
and sieze all the back issues of the Journal of ABC. If the 
library has bought the content, not rented or hired it, the 
publisher obviously has no further claims over it. It doesn't 
need a licence to establish that. If the publisher thinks he has 
further claims on sold property, let's see him have his day in 
court. It would not at all surprise me if the perceived need for 
licences amounts to nothing much more than a means for grinding 
more money out of libraries.

Bill Hughes Multi-Science

----- Original Message -----
From: <Toby.GREEN@oecd.org>
To: <liblicense-l@lists.yale.edu>
Sent: Monday, November 10, 2008 10:40 PM
Subject: Re: warranty of non-infringement and indemnification against claims

> Can someone explain why warranties are needed for e-editions and
> not for print?
> Toby Green
> OECD Publishing
> ----- Original Message -----
> From: owner-liblicense-l@lists.yale.edu
> <owner-liblicense-l@lists.yale.edu>
> To: liblicense-l@lists.yale.edu <liblicense-l@lists.yale.edu>
> Sent: Sat Nov 08 00:35:55 2008
> Subject: warranty of non-infringement and indemnification against claims
> Greetings,
> Here at UMass Amherst a publisher warranty of non-infringement
> and indemnification against claims of infringement are
> fundamental and deal-breaker terms for our licenses. This is
> consistent with the tenth NERL Licensing Principle
> (http://www.library.yale.edu/NERLpublic/licensingprinciples.html)
> which states:
> "A license agreement should require the licensor to defend,
> indemnify, and hold NERL and NERL member institutions harmless
> from any action based on a claim that use of the resource in
> accordance with the license infringes any patent, copyright,
> trade-mark, or trade secret of any third party."
> Increasingly over the past year I am struggling with small and
> society publishers who flat out won't agree to this condition,
> despite my best efforts to persuade them that their due diligence
> regarding their content sources is a significant part of the
> subscription fee we pay. None of these publishers are in the SERU
> Registry and they represent STM disciplines.
> What techniques or language would you recommend I try to make
> this an agreeable licensing term with these publishers? I'd be
> happy to discuss more specifics off-list.
> Thanks for your consideration,
> Christine N. Turner
> Electronic Resources Librarian
> Acquisitions Department/W.E.B. Du Bois Library
> University of Massachusetts
> Amherst, MA  01003
> E-mail  cturner@library.umass.edu
> Web http://people.umass.edu/cturner