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Re: warranty of non-infringement and indemnification against claims

There are different ways to approach this -- and I have no idea 
what the correct solution is. My only point is that the current 
situation -- for example, when I speak with librarians and they 
tell me that the database they purchased 18 months ago is not 
available because the university lawyers are arguing with the 
vendor over license terms -- doesn't seem to be working well for 
anyone - except, perhaps, the lawyers. We can do better.

Karl Bridges
University of Vermont

Quoting bill@multi-science.co.uk:

> Karl, the fact that the potential damage to a publisher is
> greater in an e-world remains merely a difference of degree, not
> of kind, and so does not warrant a completely different approach,
> namely licences. As an aside, it seems to me libraries are
> putting themseleves in a risky position if they cease to own
> content, but just hire it. In terms of practicalities, what is
> the point of licences? While we do sometimes licence content,
> when libraries are particularly keen on the idea, I cannot see
> them being enforceable: were the University of Arizona to
> infringe licence terms, am I really likely to go from England to
> Phoenix and start a court action? Wouldn't I more likely just
> decide that I'll never bother to have anything to do with them
> again? And do libraries really know what the terms are, of all
> the many licences they hold? And if they actually realise the
> publsher is playing games, won't they just not renew?  In short,
> how do licences change existing behaviour? I can see that in a
> multi-journal, multi-university context, there is scope for a
> very simple document stating what the order covers and who can
> use it, but thats about as far as it need go. Long and complex
> licences seem pointlesss.
> Bill Hughes Multi-Science Publishing
> ----- Original Message -----
> From: <Toby.GREEN@oecd.org>
> To: <liblicense-l@lists.yale.edu>
> Sent: Thursday, November 13, 2008 9:35 PM
> Subject: RE: warranty of non-infringement and indemnification against claims
>> Karl,
>> In the case of some publishers (including ourselves) libraries
>> are purchasing online content (perpetual access), not leasing it.
>> Therefore, are you suggesting that in cases like this the
>> parallel with the print purchase is true and therefore a license
>> is unnecessary? I would welcome such a situation. Negotiating
>> licenses is time-consuming and costly for librarians and
>> publishers - and I would love to see this cost removed from the
>> equation. For us, the risk that a rogue librarian is going to
>> broadcast our content openly is remote and represents no greater
>> a threat than print pirates ever did. So, our default position
>> has always been to sell online subscriptions without licenses.
>> Toby Green
>> OECD Publishing
>> -----Original Message-----
>> From: owner-liblicense-l@lists.yale.edu On Behalf Of Karl Bridges
>> Sent: 12 November, 2008 11:32 PM
>> To: liblicense-l@lists.yale.edu; bill@multi-science.co.uk
>> Subject: Re: warranty of non-infringement and indemnification against
>> claims
>> This is exactly the point. You aren't buying the content. You are
>> buying the right to use the content.  It's exactly the same
>> difference between buying a car and leasing it. In the latter
>> case you have a license/lease to ensure that you are not going to
>> damage what is actually THEIR property -- damage which you
>> concede is much easier in an electronic environment. There is a
>> world of difference between the damage caused by a rogue library
>> illegally photocopying a single article and a library that causes
>> your entire content to be copied 10,000 times over the Internet
>> and destroys the entire market for your product.
>> Karl Bridges
>> University of Vermont
>> Quoting bill@multi-science.co.uk:
>>> 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