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Re: Fair use (Re: Xerox ContentGuard)

While I sympathize with the concerns of Michael Somers when he suggests
that a library's obligations (and ultimately, its liabilities) regarding
enforcing the terms of a license should end after "the initial use by a
patron", this is not quite realistic.  I doubt that any publisher's lawyer
would accept this prompt cutoff for the simple reason that specific
evidence regarding failure to enforce terms of a license (or of any
contract, for that matter) may well come to light only after the term of
the license has ended. The licensor will therefore quite reasonably
require the licensee to remain "on the hook" for some specified number of
years with respect to its obligations and liabilities. That is simply
normal business contract practice. Of course, there is plenty of room to
debate how long these obligations should continue.

Alan M. Edelson, Ph.D.
(retired) President,
J.B. Lippincott Company

Somers, Michael wrote:

> Publishers determine most of the terms of the license agreements.
> Libraries and other subscribers may alter, to their advantage, certain
> phrases and nuances of the agreements.  By agreeing to the terms,
> both parties become responsible for the enforcement of the license
> itself.  What I worry about with such "non-intrusive mechanisms" is
> will their use be noted in the license agreements?  When
> will a library's obligation to enforce the terms of the agreement end?
> It improper use of the data from a licensed product can be traced back
> to a library what will the consequences be?  It is rather difficult to track
> use now of such products, but I would want strict wording in all my
> license agreements that a library's obligations to enforcing the terms of
> the license ends after the initial use by a patron.
> > -----Original Message-----
> > From: David Goodman [SMTP:dgoodman@Princeton.EDU]
> > Sent: Friday, September 03, 1999 6:10 PM
> > To:   liblicense-l@lists.yale.edu
> > Subject:      Re: Fair use (Re: Xerox ContentGuard)
> >
> > I think publishers are entitled to a non-intrusive mechanism for enforcing
> > reasonable license terms, and the adoption of a generally known standard
> > system might facilitate appropriate and consistent licensing policies.
> > The important issue remains the license terms. Knowing the availability of
> > these techniques, librarians and publishers now ought to focus on making
> > sure that licenses include only appropriate restrictions, protect the
> > privacy rights of users, and do not diminish the established rights of
> > fair use. Perhaps the standard contracts that have been suggested should
> > now be revised to deal explicitly with this.
> >
> >
> > --
> > David Goodman
> > Biology Librarian, and
> > Co-Chair, Electronic Journals Task Force
> > Princeton University Library
> > dgoodman@princeton.edu         http://www.princeton.edu/~biolib/
> > phone: 609-258-3235            fax: 609-258-2627