RE: Click-through Licenses

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

> 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)

The new copyright regulations of SA stipulates that the wording of
licences take precedence over all fair use and whatever principles. It has
not yet been passed and there is great resistance against some of the
clauses.  If it will become law we will have to be very careful.

> 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!)

The problem is that if there is a user demand for the product we have no
choice than to buy it (within financial constraints).  We are a
specialized institution and not all products are available from multiple
publishers.  On a somewhat different note, we were subscribing to a
database X for 4 years.  (A single user shrinkwrapped lisenced CD-ROM). .  
The field that it covers was rationalized and very limited research work
is done now, but we will still do some on-demand consultation and
technology transfer. The disk could be of help for some years still, even
without updates.  Unfortunately it is one of those cases where the disk
will stop functioning.  When I told the main user of the database, that we
all the time rented the info and not owned it, he was almost out of his
mind.  Yet when I took out the subscription I knew it outright and could
do nothing- I just hoped we would have money to continue the sub
perpetually.
   
> 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.

Well, it is comforting that I as librarian seems to be protected to a
great extent from direct prosecuting by the publishers.  However, I still
think under SA law my organization will be held liable, and within the
organization policy I will have to face the music if anything goes wrong,
as I place the orders.  It may not lead to prosecution or even dismissal,
but still some trouble I don't have the zest for.  Presently we only
subscribe to one remaining database with which stipulations we are
comfortable.  We are now looking into fulltext e-journals, however and all
those lisence texts I had read already had me utterly confused.  In my
private life I don't have a permanent lawyer appointed.  I only once
needed one to transfer the deed of my house.  I can't even remember his
name and address anymore.  With these things I feel I will need a 24h
hotline!

I am a new subscriber.  Is this list available in digest format and how do
I go about to change it to that?

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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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