RE: Double Licenses

[Terry Cullen <tcullen@seattleu.edu>]

Steven,

You don't sound at all confused to me.  The arrangement you describe is
perfectly acceptable.  But now some publishers have imposed on the system
a purportedly separate license with the end user, that the user "accepts"
by clicking through to release the database for searching.  I know of no
cases in which such click-throughs have been enforced, or even of any
cases in which a publisher has sued an end-user for breach of the
click-through license.  In my opinion, they aren't enforceable from either
a legal or practical view.  But these click-throughs may purport to
restrict uses beyond the restrictions agreed to by the library, and thus
have a chilling effect on legitimate uses by the end-user.  The publishers
who use these click-throughs call it "education," but I think it is
over-reaching.

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

.On Wednesday, February 03, 1999 6:03 PM, Steven Melamut 

> I am confused.  Let's assume that a vendor and the university sign a
> license agreement for the vendor to provide the university with student
> access to a digital database.  The license (contract) prohibits certain
> uses. Among the prohibited uses is mass downloading of the database or
> republishing the materials on the Internet.  If a student successfully
> copies material to a public Internet site, in violation of the license,
> the violation is between the university and the vendor because they are
> the parties to the contract.  It is a breach of contract - no copyright
> issues involved.  The vendor can sell you a license to a digital copy of
> the phone book (ProCite does don't they).  The contract is binding
> despite the fact that it is  unprotected by copyright law.
>
> The responsibility for preventing violations of the license lie with the
> university.  Punishment of the student is the university's problem. That
> should be fine with the vendor since the student is likely to be
> impoverished or unidentifiable.
>
> It is not a copyright issue.  It is a question of contract law.
> However, that does not mean the student can freely do what she wants.
> The student can only assume the rights the university has available to
> transfer.  Another words, there is still no fair use issue for the
> student because there is no fair use right to transfer.  In practical
> terms, this just means that this defense is unavailable to the
> university when everyone goes to court.
>
> It would seem in the best interests of the university to warn the
> students about any restrictions on the database.  The question of the
> vendor's "double license" should be covered in the original license the
> university and the vendor signed.  Someone at the university should be
> carefully examining the license.  I have seen at least one contract this
> year where the corporation attorneys got confused and placed the wrong
> parties in the wrong place in the contract...
>
> steve
>
> (naturally the opinions, errors in logic, or whatever, that appear above
> are solely my own)
>
>
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>            Steven Melamut
>    Kathrine R. Everett Law Library
>     University of North Carolina
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