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RE: Click-through Licenses

As far as the library being held responsible under an end-user click-on
agreement, another important concept in contract law (I'm talking U.S.  
jurisdictions here) is that the contract can only bind the parties who
agree to the terms, and not third parties.  However, as an employee, you
have an agency relationship with your organization, which therefore can be
held responsible for your acts done in the course of business.  A court
would be unlikely to find that an agency relationship exists between
end-users and your organization.  So, even if these click-on end-user
licenses were enforceable, they can bind only the publisher and the
end-user, not the library (unless the library agrees in their own license
contract with the publisher to be held responsible for the subsequent acts
of users, which hopefully none of you would do).  Do the end-user
click-ons require the user to identify themselves?  Nope.  (Would your
library even consider purchasing such a product?  I hope not!)

Secondly, identifying the IP address doesn't tell you anything about who
the end-user was in a click-through agreement.  Yes, it identifies the
workstation, but they can't sue the workstation.  (This situation is
different from online contracts where they supply identifying

Think about whether your library would purchase a database that required
patrons to identify themselves or required you to keep records of who used
the public stations for what.  Practically speaking, without such
information, the end-user license is unenforceable, because the only way a
publisher could identify the party to sue would be if they could identify
the "violator."  If the library keeps records, they could subpoena records
from the library if there's no end-user supplied identifying information
(whether the library would comply with the subpoena is another issue.)  
But if there are no records, the publisher would be out of luck trying to
figure out who to sue.

To reiterate, while you may consider yourself responsible for what goes on
at your public station, you can't actually be sued on an end-user click-on
contract if you're not in some way a party to the agreement (such as by
agreeing to be responsible for acts of others in your licensing

Some publishers would like you to think they can hold you responsible, but
they really can only do so if you assent in some way.  For whatever it's
worth, I don't think you should ever agree to such terms, even if it means
not being able to purchase the product.

Terry Cullen, Esq.
Electronic Services Librarian
Seattle University School of Law Library
950 Broadway Plaza, Tacoma, WA  98402-4470
Email:  tcullen@seattleu.edu
Phone:  253-591-7092  FAX:  253-591-6313

> 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.
> 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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