Click-through Licenses

["David Swanepoel" <david@moon.ovi.ac.za>]

Terry Cullen wrote:

>"There are two obvious problems with enforcing the click-on end-user
>license in the library setting that convince me that the intent is 
>to discourage end users from using materials in any manner other 
>than those that the publisher sanctions, including uses that might 
>fit the fair use balancing test.  First, publishers cannot actually 
>identify the end-user sitting at a library terminal, so how would 
>they know who to sue?"

I am not so sure if this will be so difficult.  I once tried a
web-chatroom out.  Even though every participant logged on under a
pseudonym, the person's IP-address appeared together with his/her
writings.  It is even possible for a supervisor on such a system to kick
off badly behaving (e g foul-mouthed)  contributors- from anywhere in the
world!

If the IP-address of the workstation from which information is accessed,
is known to the licensor of the information, they can identify the
organization easily.  The domain name must be registered somewhere with
full contact particulars.  Once a prosecutor arrives on premises s/he can
either approach the most senior officer (Director, CEO, Manager, President
or whatever) or the IT / computer centre manager.  In my organization it
will be a mere few seconds to indentify the workstation of which I am the
sole user, and which access I am by corporate policy, supposed to protect
at all times with the password issued to me.  I have one public
workstation in my library, and as head of the place, I am still
responsible for whatever is done there and from there.

>Second, it is hardly likely that a publisher will go after a typical 
>library user (read: student with no money, who couldn't possibly pay 
>damages) anyway.

As just said, the responsibility and liability reverts back to the
organization.  If they can't find the culprit they will see who else they
can find.  Obtaining a corporate license place the liability on the
accountable officer (CEOs etc) who will after getting trouble, take steps
to prevent re-occurence. If the librarian placed the order s/he will have
to answer further questions.

I believe the technology provides the publishers with great powers. How
these powers are used is another question.  If the advent of licensing
will exclude any fair use measures, interlibrary loans and resource
sharing, it will hit developing countries like South Africa very hard.

But that is another issue.  My first priority is to stay out of trouble.  
I think click-through licenses or enduser warnings are not totally wrong.  
It is the same as when I make an enduser sign a copyright declaration for
a photocopy.  After issuing it I lose control of whatever they do with it.  
If I make electronic information availabe, I do not even know when they
access it and for what purpose.  If it is possible to pass on the
liability to the end-user, let it happen.  The only requirement is that
what is said to them in the license statement and to the librarian must be
consistent.



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David Swanepoel 
Library Information Service, ARC-Onderstepoort Veterinary Institute
P Bag X05, ONDERSTEPOORT 0110, South Africa    
Tel: +27(0)12 529-9279  Fax: +27(0)12 529-9282 / 565-6573

WWW: http://www.ovi.ac.za/docs/homepage/david 
Mailto:david@moon.ovi.ac.za 
Cellular phone: 082-850-3170   
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