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Re: "Double" Licenses

Hi Ann and others:

It seems to me that because of a legal principle called "privity of
contract", the electronic publisher wants to ensure that the terms and
conditions in the license agreement are in fact effective.  Privity of
contract means that one can only obligate the person or institution -- ie
the library -- and not subsequent users -- ie the patron. Thus, if the
publisher has in its contract with the library that a patron can only make
one copy of any article in its database, and the patron makes 2 copies,
then the publisher has no right in the contract to sue the patron.

However, if the publisher also enters into a contract with the patron,
then the publisher would have such a right.  Another way of achieving the
same goal is to obligate the library to ensure (if this is really
possible) that the patron only make one copy and therefore create a
contractual obligation on which the publisher can later take a legal

As long as the terms and conditions are consistent in the library and
patron agreements with the publisher, it may be more advantageous to a
library because they are then less legally obligated for the actions of
the patron (which is difficult to control.)


Lesley Ellen Harris
Copyright & New Media Lawyer
Editor:  Copyright & New Media Law:  For Librarians & Information Specialists

In a message dated 20/01/99 5:29:22 AM Pacific Standard Time,
ann.okerson@yale.edu writes:

<< Already this year I've seen two electronic information "deals" that
 require two levels of license.  That is, the institution (library)
 negotiates and signs a license with the provider AND then once the reader
 goes to the site to retrieve the information, he or she is asked to
 "click" to agree to a set of terms and conditions.  I.e., two license
 agreements are in play: one with the institution and one with each
 individual reader. Perhaps this has been happening to us all along, and
 I've only noticed this because of reading two such licenses within a few
 days.  The "click" is NOT the same as "dear reader, here you are and
 here are our working rules" -- rather, it is an attempt to create a
 legal agreement between the provider and the individual.
 In each case, the terms are reasonable enough, but I question that the
 readers fully understand the kinds of liabilities that they are accepting
 by clicking.  And, as we have heard/discussed ad nauseum, "click" licenses
 are also problematic in that there is no possibility for the reader to
 query or negotiate with a form on the web.
 In any case, it seems to me that the information provider's deal needs to
 be either with the INSTITUTION, who negotiates and accepts all the
 overarching responsibility for compliance with the license, OR with the
 READER, leaving the institution out of the relationship.  There is an
 incompatibility between asking for both.
 Comments please from you publishers, librarians, and lawyers out there?
 Ann Okerson
 Associate University Librarian
 Yale University