Re[2]: Click-through Licenses

[mspinell@aaas.org (MSPINELL)]

Terry,

Two points in response to this.

1) if librarians should never sign an agreement assuming responsibility
for the actions of end-users, then what choice do publishers worried about
protecting their intellectual property have other than to form separate
agreements with the end-users? But you also seem to object to any sort of
bothersome click-on agreements forcing the end-user to acknowledge their
responsibility for using protected information appropriately. Indeed, you
seem to be objecting to any sort of binding agreement that holds either
users or institutions responsible for the actions of users. If end-users
aren't part of the original agreement, what else is to be done to ensure
that any user understands that they have obligations related to using the
product?

2) your message below seems to assume that the only purpose a publisher
might have for forming contracts and gathering workstation identifying
information (IP address) is so that they can sue someone if/when anything
goes wrong. I know we're a terribly litigious society and all that, but my
experience is that lawsuits are absolutely a last resort, and a very
expensive one. Most publishers (well, I guess I should only speak for the
one I work for, so AAAS) wouldn't even conceive of suing an individual
user over a copyright infraction, except under extraordinary circumstances
where we believed real damage was being done intentionally and
persistently.

We would, however, want the ability to identify and stop lesser misuses of
our site. For this purpose, knowing the IP address is more than
sufficient. We can identify where the problem is and which specific
account the IP is authorized by. Then we would contact the account
administrator, (not so we could sue them!!!) to ask their help identifying
the problem-maker, and either 'educating' them about proper use of the
site, or cutting off their rights to the system. If all else failed, we
could of course cut off the access rights for the whole account -- a
drastic action, but still way short of a lawsuit.  And, I would note, this
also falls short of holding the library or institution legally liable for
the actions of its users: Even though the institution might suffer a
consequence for users' actions (i.e., losing access to the site), they
aren't being held responsible for damages, etc. Assuming that the
infraction we are contemplating here is a real one (i.e., not a case of
fair use), doesn't this seem like a reasonable response? I know from your
earlier comment that you are suspicious that publishers want end-user
information so they can curtail fair uses. But how else would you suggest
publishers and librarians form agreements that protect both parties'
legitimate interests?

Mike Spinella


______________________________ Reply Separator _________________________________
Subject: RE: Click-through Licenses  
Author:  Terry Cullen <tcullen@seattleu.edu> at Internet
Date:    2/1/99 4:24 PM


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 
information.)

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 
agreement).

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.
>
>
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