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Re: Not negotiable? 

Michelle raises an important point in her note.  It's true that there can
be serious fiscal barriers to the negotiation of individual licenses,
especially for low-priced items.  As one publisher put it to me, "If I
have to negotiate and sign a contract for every sale of my $50 product,
I'll go out of business."  Librarians need to recognize and be sensitive
to that. 

However, the problem that libraries face is that a license agreement is,
in fact, a binding contract.  From our end, it doesn't really matter
whether the product costs $50 or $50,000 -- if its purchase binds us to
terms that are unacceptable or, in some case, illegal, we're stuck.  For
example: the license agreement for Michigan's "Middle English Compendium"
(to which Michelle thoughtfully provided a link) includes a clause which
causes the licensee to "indemnify and hold the UMP harmless from any
liability or claim of any person arising from" use of the product.  Not
only would any library be foolish to agree to this condition (why should
the library agree to stand between the publisher and, say, some third
party claiming ownership or damage?), the simple fact is that many
libraries are prohibited by law from doing so.  At UNC Greensboro, a state
institution, our agreement to *any* indemnification would, technically, be
binding on the State of North Carolina, and we simply do not have the
legal authority to bind the State.  If the University of Michigan Press
were to say that we can only purchase access to MEC under the current
terms of the license, we would simply have to decline to purchase.  It's
hard to see how this would result in cost savings to the Press. 

So do we have a stalemate, in which publishers can't afford to negotiate
every sale and libraries can't afford not to? 

Not necessarily.  Others with far more experience in this area can
probably make better suggestions, but here are a couple of my own, to be
taken for what they're worth (and for which I will accept no legal
responsibility ;-) ): 

1.  If you are a publisher who sells regularly to individuals,
corporations and libraries, create one version of your license for each
market.  Know that libraries, for example, will generally balk at
indemnification clauses, jurisdictional specifications, language that
allows you to terminate access without notice and for "any breach", etc. 
These may or may not be problems for your other types of customers.  You
don't necessarily have to negotiate with *every* library, but you are
probably going to have to face and deal with the needs of libraries *as a
market* if you want to keep selling to them. 

2.  Don't require a license agreement.  (Ouch!  Hey!  Quit throwing
stuff!)  Think about this, though: A contract is a contract.  In what
other business context would it be considered normal for one party to try
to impose non-negotiable terms on the other party?  If it's not worth your
while to negotiate a contract every time you sell the product, maybe that
implies that the risk you'd be taking in providing it without a contract
is minimal.  Of course, sometimes third-party IPs are involved and there
can be many other complications.  But that doesn't mean you shouldn't ask
yourself the question.  This was exactly what I ended up suggesting to the
publisher I mentioned above -- he's got a $50 product that he owns
outright.  If he can't afford to negotiate, maybe he could afford to throw
out the agreement and just trust us to use his product honestly.  Barring
some kind of massive abuse, he's not really taking much risk. 

Does this make sense to others?  There are probably some big fat holes in
my second suggestion, and I'd welcome having them pointed out, as well as
any others... 

----------------------
Rick Anderson
Head Acquisitions Librarian
Jackson Library
UNC Greensboro
1000 Spring Garden St.
Greensboro, NC 27402-6175
PH (336) 334-5281
FX (336) 334-5399
rick_anderson@uncg.edu
http://www.uncg.edu/~r_anders

"Conservatism teaches us to worship 
our property.  Liberalism teaches us to 
worship our rights.  Both teach us to 
worship ourselves." 
             -- Stephen L. Carter

On Thu, 14 May 1998 00:08:54 -0400 (EDT) michelle miller-adams 
<mbmiller@umich.edu> wrote:

> I'd like to comment on the question raised last month by Rick Anderson
> regarding why a publisher might decide to make its licenses
> non-negotiable.  We at the University of Michigan Press have, in fact,
> decided that the two site licenses we have written so far should not be
> negotiable.  The first is for the Dictionary of Old English Corpus and the
> second is for the Middle English Compendium. These licenses can be viewed
> at <http://www.press.umich.edu/sitelic/index.html>.  (For descriptions of
> the products themselves, go to
> <http://www.press.umich.edu/digpub/digpub.html>.) 
> 
> We have priced subscriptions to these bodies of work as low as possible,
> seeking to cover just the basic costs of production and our overhead. We
> have not included enough of a margin in the price to allow for time spent
> in conversations and negotiations with individual libraries or consortia
> interested in revising terms of the license. In these cases, there is a
> clear link between offering as low a price as possible and limiting the
> amount of staff time spent in administering licenses. 
> 
> While we will not be negotiating provisions of our licenses with
> individual libraries, we welcome feedback from the library community about
> our licenses in general.  We have already accommodated concerns raised by
> some members of the lib-license list about defining a library's authorized
> users explicitly to include walk-in traffic, and mentioning the role of
> fair use. If there are other concerns that come to mind upon reading these
> licenses, please let me know (you can communicate with me directly at
> mbmiller@umich.edu). 
> 
> Michelle Miller-Adams
> Manager, Digital Publishing
> The University of Michigan Press


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