Double licensing and library responsibilities

[Peter Graham <psgraham@syr.edu>]

David Strauss (David_Strauss@silverplatter.com) wrote to Liblicense-l:

> The "double license" issue highlights a particular problem for which both
> publishers and libraries have a community of interest:  How to make the
> actual end-user responsible for his/her acts.

There is a slippery slope here that I want to question at the outset: the
idea of community interest, beyond normal civic responsibility, in
"end-user" performance.  Libraries should be very leery of taking on
responsibility of any kind for what their clients do with information,
whether in content terms or in license terms.  I'm not sure other
analogies on campus or elsewhere exist and would appreciate having some
pointed out to me. >[....]

> In order for the publisher to enforce its license provisions against an
> end-user, there must be a direct contractual relationship between the
> publisher and the end user.  The license that the library accepts in order
> to obtain initial access to the product does not necessarily ensure such a
> direct relationship.  So it is important for the publisher to put the
> license terms in front of the end user and obtain an express or implied
> acceptance of those terms.  This both educates the end-user and also
> permits direct enforcement by the publisher against the end-user if
> warranted.  In this way, the library avoids being the end-user's "insurer"
> when the library has done nothing to cause or permit the violation.

This paragraph seems correct so far as it goes, but the implied threat in
the last sentence* brings into focus all that is problematic with the
licensing regime as opposed to the constitutional regime of limited
intellectual property rights we have all grown up with.  The paragraph's
argument is based on the presumed effectiveness and full legal value of
the shrink-wrap and click-through licenses, the UCC 2B proposals for which
have fortunately been delayed.  The paragraph as a whole highlights the
necessity for the library community and others interested in appropriately
free flow of scholarly communication to continue resisting contract law as
the sole determinant of intellectual property usage.

    [*I do not mean by the writer per se, but by the publishing community
furthering such contract interpretation.]

I also want to question the concept of "end user."  In the licensing
arrangements we libraries engage in, we are the end-user.  There is no
further end user and we cannot take responsibility for further users.  If
one wants to define our patrons as end-users, one gets quickly to an
endless regress:  if a student uses information or a citation from a
licensed data base, must he/she include a license warning along with it?  
If the faculty member publishes an article with such information, either a
quote or a citation, must he/she include a license warning?  And the
researcher who uses that faculty member's citation -- must that use too be
accompanied by a license warning?

> What if the library negotiates a license that differs from the publisher's
> standard on-screen license?  This is a good question [....]  Perhaps the
> simplest way is for the on-screen license to recite that the terms of the
> license accepted by the library will supersede conflicting terms in the
> on-screen license.  [....]

The simplest way is rather to eliminate that on-screen statement.  A
"click-through" license requirement, even with implementation of UCC2B or
similar, will only confuse users and be ignored.  Libraries should not be
prepared to undertake any action vis-a-vis our patrons who ignore such an
on-screen statement in an environment where the library is the resource
licensee.  --pg

--
Peter Graham    Syracuse University Library    psgraham@syr.edu
Syracuse, NY 13244-2010 315/443-2573 fax 315/443-2060 9/98nw4.4