Recently in Licensing Category

For many months, the academic world has been keeping an eye on a potentially critical lawsuit brought by AIME (the Association for Media and Equipment) and Ambrose Video Publishing (Ambrose or AVP) against UCLA (or more specifically, the Regents and several named university officials in their administrative and individual capacity). The plaintiffs, AIME and AVP, sued UCLA because the institution was purchasing education dvds (some from AVP, others from AIME association members), circumventing the technological protections embedded in the dvds, and then streaming (transmitting) the entire movies in their online, password-protected course management system.

Additionally, and significantly, the AVP dvds were acquired by UCLA pursuant to a license agreement, a portion of which is reproduced below.

The watching world, extrapolated from this lawsuit fact scenario the following burning copyright questions(s):

1. Can a non-profit educational institution stream entire movies within an online, password protected course management system without violating copyright laws?

2. If so, which educational exceptions in the copyright act allow this? §107, known as Fair Use; §110(1) the face-to-face classroom performance exception and/or §110(2), the transmission of performance and display, a.k.a., the TEACH Act?

Legal scholars, library and educational associations, and copyright holders and their associations naturally differ in their answers to those questions. Blogs, opinion briefs, and talks came to life, all focusing on those two questions. And those are the questions we hoped for an answer from this case.

On October 3, 2011, the trial judge dismissed the case in a brief (13 page) order. At last, academia thought, an answer, or at least some copyright guidance. Instead of being a copyright case, however, this case became a civil procedure and contract case with copyright mentioned primarily for its characteristic of being a federal law.

The bottom line is that the copyright questions were not reached in the actual holdings. In her order granting defendant's motion to dismiss, the course never reached the copyright questions on their own merit. Any passing reference to copyright is at best hopeful dictum, which cannot be pulled out of context and mischaracterized as a "copyright win". It certainly does not stand for the proposition that streaming entire copyrighted films within password protected course management systems is lawful.

WHY NOT? WHAT HAPPENED?
That's the question we care most about. By definition, a Judge's decisions are not going to make everyone happy. That's not her job. It is also not her job to go beyond the facts of the case before her and decide questions prematurely simply because we want her to do so. There are procedural issues and requirements that must be met before a judge can get to the merits of any particular case. The case must present in the proper posture with qualifying parties pleading the requisite elements of any particular claim. Any failure in these early rounds and the case stops there. No view of the merits of the case can be inferred.

WHO SAID WHAT?
In the order dismissing the lawsuit, the court recites the facts of the case in a disturbingly brief manner and with a puzzling omission of key facts. For example, it is interesting that AVP is not identified as the copyright holder of some of the works at issue nor as a member of AIME. Perhaps the complaint was not specific enough, referring to AVP as a creator, rather than a copyright holder per se. It is also very interesting that the license between AVP and UCLA is barely mentioned; or perhaps, more accurately, that one section is heavily relied upon, ignoring other terms in the license. The complaints of the plaintiff are listed and importantly, since the court granted UCLA's motion to dismiss, the relevant defenses are listed:
1. UCLA et al is immune from suit;
2. AIME lacks standing, and
3. Plaintiffs failed to state a claim upon which relief can be granted.

FIRST THINGS FIRST
Our legal system has a LOT of rules governing lawsuits - who can bring them, when, where and what elements of any particular wrongdoing must be stated somewhere in the paperwork, with facts to back it up. Only after all these rules are satisfied will a court begin to look at the merits of the case.

This court decided the initial rules were not satisfied, which allowed her to dismiss the case without having to directly address our copyright streaming questions.

WHAT DID THE COURT HOLD?
1. You cannot sue a state agency for money damages for violating copyright law (including the DMCA, a part of copyright law), even if they fail to comply with copyright restrictions set forth in a license agreement. Signing these licenses purporting to abrogate or limit rights under the copyright act is not an implied waiver of state sovereign protection from suit. Therefore, one cannot sue a state agency (university) for violating the federal copyright statute by engaging in infringing conduct, even if that state university signed a contract specifically promising they would not infringe.

2. Can the state agency (university) be sued for breach of contract and other state law claims if the signed contract in question sets limits on what the university is allowed to do under the federal copyright act?

The AIME court stated, in Discussion III Failure To State A Claim d. State Law Claim that "The Copyright Act preempts claims that "are equivalent" to any of the exclusive rights within the general scope of copyright." 17 U.S.C. § 301(a); Altera Corp. v. Clear Logic, Inc., 424 F.3d 1079, 1089 (9th Circ. 2005). A state law claim is preempted if : (1) the work involved falls within the general subject matter of the Copyright Act, and (2) the rights asserted under the State law are equivalent to those protected by the Act. Zito v. Steeplechase Films, Inc., 267 F. Supp. 2d 1022m 1027 (N.D. Cal. 2003)

As made clear by the court, a state law breach of contract claim based on the exercise of rights set forth in the copyright act, even if prohibited by the contract, would fail because of Copyright Act preemption. For example, if a contract tried to prohibit ILL, an activity authorized by the Copyright Act, that part of the contract would be pre-empted. If the signatory institution, public or private, exercised their ILL rights, a state law breach of contract claim should fail. The private institution might still be sued for infringement of the federal copyright statute itself, but not because it may or may not have complied with a license.

For me, that is an amazing take-away. I've been engaged in licensing efforts by academic libraries for e-resources for decades. Over and over and over again, I've heard that contract law prevails over copyright law and one needs to be careful not to sign away fair use rights. Reading this order, you can't.

Sit for a minute and think about the implications for the thousands and thousands of e-resource licenses signed by U.S. academic libraries. Does this not change everything?

Comments are welcome

Peggy E. Hoon, J.D.
CIP IP Scholar

Next Up: Associational Standing and Overuse of the Sovereign Immunity Defense

Excerpt from Ambrose License
QUOTE FROM EXHIBIT 3 FROM PLAINTIFF'S COMPLAINT

Educational Television
For information and pricing regarding Education Television go to www.ambrosevideo.com/etv.cfm

Terms and Conditions

AMBROSE VIDEO PUBLISHING

Listed below are the basic terms and conditions that govern your use and purchase of precuts/programs from our website. Your use of the content purchased from Ambrose Video Publishing (AVP) constitutes your acknowledgment and agreement

AMBROSE VIDEO PULISHING

Listed below are the basic terms and conditions that govern your use and purchase of precuts/programs from our website. Your use of the content purchased from Ambrose Video Publishing (AVP) constitutes your acknowledgement and agreement to all of the terms and conditions contained below ("Terms of Use")

AVP is the licensor and you, the user, are the Licensee.

You hereby agree to the following Terms of Use:
1. Grant of License
AVP grants to the Licensee a limited, non-exclusive, recovable license to use the Content (as defined below) is an educational OR home video setting.

CUSTOMER ACKNOWLEDGES THAT THE PROGRAMS MAY NOT BE DUPLICATED, BROADCAST, TRANSMITTED BY CABLE OR OTHERWISE, ON ANY MULTI-RECEIVER OPEN OR INTERNET SYSTEM, OR DISPLAYED BEFORE THE PUBLIC, WHETHER OR NOT ADMISSION IS CHARGED. CUSTOMER SHALL EXHIBIT THE PROGRAMS ONLY AS HEREIN SPECIFIED AND USE THE PROGRAMS FOR NO OTHER PURPOSE.

Customer shall not sublicense, sublease or part with possession of any Program received by customer hereunder. Performing rights to music contained in any Program are not granted herein. Nothing herein shall derogate from any rights of Ambrose or any other copyright proprietor of any Program under the United State Copyright Law or any applicable foreign copyright laws.

In a prior post, I directed your attention to the Georgia State lawsuit and its implications for higher education, particularly digitally delivered resources. As has been noted elsewhere, a decision on the single remaining claim - indirect infringement, may come as early as the next two months.

Meanwhile, other rather chilling efforts have begun to appear in the form of unusual "statements", "guidelines", contract language in licenses, and the emergence of additional methods to pay for nearly any use of any amount of copyrighted materials, all generally targeted at activities occurring within the higher education setting. Of course, the primary driver is money - who has it and who wants it. Hopefully, somewhere in the mix is the goal of providing accessing to the best quality materials for our current mature level researchers as well as those just entering academe who will need every ounce of scholarly materials and thinking/processing skills to enter the world we've left them, survive, and maybe even "fix" it, huh?

Money, more than any other single factor, puts enormous pressure on already stressed and dysfunctional systems. Worry over money, jobs, staying in business, watching your business model decay and fade with advances in technology seem to me to have polarized buyers and sellers, creators and users of the same valuable intellectual property output almost past the point of reasonable and civil discourse.

Why do I say this? Because I think there has been a recent uptick in the stringency of publisher promoted fair use guidelines, ILL guidelines, and, now, the offering to license "reuse rights" for entire books that are no longer "available". (Most of that last service leaves me with a great many questions.) Words like "legitimate copyright owners" are tossed about to inject some sort of moral flavor into what should be an intellectual and mutually beneficial conversation - because I can easily take issue with exactly who is the "legitimate copyright holder" at the drop of a pin.
So, the publishers, fearing extinction or at least marginalization, are spewing out strange guidelines and suing their customers.

The "customers", who are also the suppliers for the publishers, are also reaching the "I've had enough" phase. Why are prices constantly going up? Appropriations money for all universities is being slashed or taken back, our salaries remain constant despite increase in our costs of living, our positions are being taken - and this has been going on for years and years. Do you think these customers have an ounce of sympathy for publishers who want more money each year? THE MONEY IS NOT THERE. It is not a matter of choosing between an assistant football coach and buying books. Now even conferences of those closest to the money and resources are also becoming sources of polarization. The librarians. They are hit from all directions. The librarians are tasked to try to buy their users a silk purse with a sow's ear.

But it's not a "war" between librarians and publishers. If it is a war at all, it is the publisher's struggle with technology and current copyright law. Both of which threaten the publishing industry. It's a great deal easier to challenge librarians although not the faculty they represent - because the faculty are the source of the content for the publications. Get on the wrong side of faculty, and there goes the golden goose.

International Association of Scientific, Technical, and Medical Publishers: Statement on Document Delivery, 31 May 2011.

If you haven't read this statement, you should do so. It is, in fact, the provocation for this blog. But rather than just critique it and, therefore, appear as yet another librarian attacking a publisher, I wanted you to question the current environment for scholarly publishing and why such strange backward retrenchments are becoming more frequent and more severe.

This "statement" concerns another well-established key library activity known as Inter-Library Loan (ILL). ILL, for any non-librarians in the crowd, is the practice, specifically authorized in Sections 108(d) and (e), that recognizes that all libraries cannot possibly have, in their own collection, EVERYTHING ever published. So, the law allows a library that does not have something a user wants or needs to locate another library that does have it. The first library is specifically authorized by copyright law to ask the second library for the desired item, in whole or in part, (if it is an article or small contribution) or to borrow the item itself. That is the basic premise of ILL. It makes a great deal of sense and has become increasingly relied upon as the buying power of libraries is inexorably being diverted to satisfy the constantly increasing licensing fees coming from this very group - STM (science, technology, and medical) publishers. ILL has been the primary method of bridging the gap in materials no longer available as a direct result of these constant price increases in licensing.

What does this statement say? Well, it pretty much expresses the opinion that all ILL requests should be paid for and that since the materials filling the ILL request cross international boundaries, the whole operation is beyond the ken of universities and libraries - therefore, the control and payment for ILL requests should rest with the "legitimate rights-holder". [When you hear the phrase "legitimate" rights-holder somehow it makes you believe the rights holder earned that right, either by creating the material or purchasing the rights, neither of which is the case for most STM publishing; rather the publisher is simply given the right, without being the creator or having paid for it]

In fact, these journal articles cross borders frequently during their life span - should the publisher be paying every time the article crosses a border to a peer reviewer or the original author? These same STM publishers don't seem worried about international laws or potential differences when they license materials to libraries; no mention of international law is ever found in their own licenses. Why now? The fact is U.S. copyright law governs U.S. libraries - period.

Furthermore, ILL is a particularly poor choice of library practices to target.
• First, it rests solidly on a specific copyright law provision.
• Secondly, the 1976 Copyright Act established a National Commission on New Technological Uses of Copyrighted Works (CONTU) to deal with the inevitable questions that would arise with continued technological evolution.

The CONTU Guidelines issued explain and define the scope of ILL and have been almost religiously followed by libraries ever since. They have come to be known as the "Rule of Five" and basically allow:
• There is no limit, and, therefore, no permission fees, required for articles published more than five years before the ILL request.
• If the requested article comes from a periodical published within the past five years, the requesting library may request and obtain five articles per annum, without permission fees. Once the library reaches the need for a sixth article from the same periodical within the year, practice has been to either subscribe to the journal (if, for example, the requests are coming from multiple individuals demonstrating a wide need for the periodical) or pay a permission fee. (perhaps if all the requests are coming from a single individual). The payment and tracking onus is on the requesting library, not the responding library.

To my knowledge, this practice has been stable and noncontroversial since 1979. Why would publishers now challenge this practice, specifically authorized by law? Especially since, if anything, the challenge should come from the libraries concerning the rather low number of five articles? There are undoubtedly hundreds more journals for libraries to spend their limited budgets subscribing to than there was in the 1970's, when the CONTU Guidelines were first generated. That fact alone should support a call to raise the number of articles permitted far above the number of five. Instead, we have a statement that would essentially have us ignore Section 108 that specifically allows ILL. What in the world is going on? Should libraries simply stop using their ILL right? That's what would have to happen should we all ignore the law and pay for every borrowed article.

If there is to be civil and responsible discourse between publishers and the universities that keep them in business, we all need to curb the rhetoric, stay reality-based, and refrain from statements that stray so far from the law.

I welcome your comments - talk to me -
Peggy

It has been said that there is nothing so compelling as an idea whose time has come. Perhaps we should add a problem or situation whose continued persistence, despite reasonable proposed solutions, is so costly, so time-consuming, so unnecessary that it compels outcry, it compels our attention, and it compels a rational solution now. Now.

I've said it before, I'm saying it again once and for all. Institutions of higher education in the United States can no longer afford to squander scarce resources in the current endless cycle of rehabilitating the same unacceptable license language that accompanies online scholarly journals, databases, and other electronic resources. Over and over, day after day, institution after institution, time and money are spent just trying to keep the use rights and other rights that we already possess under the law from being constricted. To access material that our university professors and researchers have generated. Meanwhile, classes are cancelled, people are laid off, entire programs are eliminated, and our system of higher education continues its slide to mediocrity.

I bring this to your attention, one last time, because this clearly is a problem whose demand for a uniformly successful solution has come. Just this past week, a strong cry for license reform has spoken. The Charleston Advisor's latest edition, April 2011, rings with the clear tones of Stanley Wilder, University Librarian at UNC-Charlotte, in The Erosion of Fair Use Protections for Digital Scholarship, as he challenges us to stop playing defense and rethink the vendor's license as the point of departure. He calls for reframing "the existing debates about licenses...so as to put protection of fair use principles front and center." Furthermore, if his examples of egregious licensing language, while familiar to library license negotiators, doesn't bestir, if not actually offend, academia from administrators to faculty to staff to students, I suspect nothing will.

Several months ago, shortly after starting the IP Scholar term as well as teaching my first Digitization Course online, I posted a blog on licensing of electronic resources in the university library setting. The point of the blog was simple:
• Most university electronic resources in the library are governed by a license agreement that originates with the resource vendor.
• These licensing agreements are legally binding contracts.
• Almost every license agreement requires modification of the terms before it can be accepted by the library/university.
• Negotiating different licensing language for each license is resource intensive, in terms of time and the involvement of multiple layers of institutional authority on both sides.
• Despite the repeated unacceptability or impossibility of many of the clauses, very little evolution or term improvement seems to occur; that is, each new negotiation starts back at square one, over and over.

License negotiation, in this setting, appears to me to be very similar, if not identical, to the activity or practice as it existed when I began my association with it, over a decade ago. Incremental improvements have occurred, such as more systematic methods of tracking the progress of a specific license; development of licensing guidelines particular to an individual organization; increased opportunities for library licensing training; convincing the library that it actually had to do what it agreed to do, such as informing users of terms; encouraging communication of licensing terms to other library departments with a need to know like ILL; convincing my (1st) library that Friends of the Library members were not authorized users, and so forth. Additionally, more national efforts to create model library licenses (NERL, etc.) and the promotion of a memorandum of shared understanding concerning use of e-resources (SERU - but this is not a license) also have been created.

My first blog entry came to the attention of a much wider-read, established listserv, liblicense, where it generated a lively and informative discussion. Apparently, many were also experiencing frustration with the constant and time-consuming license negotiation process while others considered the issue sufficiently addressed as a result of the imaginative and valuable efforts of the SERU group as well as those pockets of consortia or associated libraries who have had success in convincing vendors to use their own model library licenses. All of these efforts are to be applauded. I'm sure I have left others out unintentionally and I am in no way criticizing such efforts. Their successes, however, are not universal, by any measure and for many of us the problem remains.

By far the most illuminating comments came from those who argued that no single model license would ever be successful because there were simply too many variables involved: types of vendors, types of resources, types of buyers (public or private institutions, for example), size and resources available to different buyers, and different governing laws and policies unique to individual states.

It is this viewpoint that resonates the most to me - it is so strikingly obvious. However appealing it is to hope that sellers and buyers of electronic resources should be able to accept the principles set forth in a document like SERU and confine their negotiations to amount and price, I fear the licensing model, as a way of doing business and of shifting liability, has become firmly imbedded. Speculating on how or why this model was meekly (?) accepted as appropriate for acquiring access to the electronic version of non-licensed print materials is probably a waste of time. One can't help but note, nevertheless, that subscribing to a print journal never involved requiring the subscriber to monitor the lawfulness of the activities of those who read it or to indemnify the journal should said user violate intellectual property laws. Why did libraries ever go along with this business model in the first place?

As hopeful an option as SERU is, it has not yet achieved significant success and acceptance. An interesting discussion of this and other efforts can be found in a 2010 article "Informing Licensing Stakeholders: Toward a More Effective Negotiation" in The Serials Librarian, Vol. 58: 1, 127-140, a panel discussion including a representative from the SERU Working Group. (see below for cite)

Those of you, on the ground, still spending your days negotiating and rehabilitating license after license agreement, do not need an article or me to tell you that the situation, overall, is pretty much the same as it has been, pockets of success here and there notwithstanding - NERL and OCUL, for example. Even those, though, start with the premise of a single license model, one-size-fits-all. The liblicense responses have convinced me that such a model is not the answer. We need to empty our full cups ("you cannot fill a cup that is already full") and open our collective minds to that notion.

What do you do when one size or one choice does not meet the needs of an industry? One obvious answer is to offer a selection of licenses addressing the primary subsets of needs. But will that help or just offer more starting points or entry into the back and forth of negotiations? If so, that may simply create more work.

Perhaps, to accommodate the many variables - type of product, type of vendor, type of institution or customer, individual jurisdictional mandates - the license or agreement needs to be parsed or dismantled into its component parts. Not such a hard thing for an instrument like one of these licenses. It's already been done repeatedly on sites that analyze the pros and cons of various sections and offer acceptable and unacceptable language. The instrument itself is already divided organizationally into sections. No doubt your own company or institution - licensor or licensee - has already developed its own internal licensing guidelines.

Suppose then, that stakeholder representatives could develop mutually acceptable, approved language for each category of the license, and, where appropriate, several approved language options for those particular categories where one size does not fit all and there are varying needs of product, vendor, buyer, etc. In short, build-a-license, customizable to meet the needs of different situations. With pre-approved clauses, the need to have each proposed language change during a negotiation taken back to the lawyers or the individual with approval authority is eliminated. Think of the potential for efficiency, consistency, customizability and a streamlined process.

This is an approach with potential - enough to warrant further exploration and we're working on it. All comments, suggestions, interested participants are welcome. Think about it. Let us hear from you -

Peggy

Cite: Chamberlain, Clint , Damijonaitis, Vida , Lamoureux, Selden Durgom , Rubinstein, Brett , Sibert, Lisa and Westfall, Micheline(2010) 'Informing Licensing Stakeholders: Toward a More Effective Negotiation', The Serials Librarian, 58: 1, 127 -- 140; url: http://dx.doi.org/10.1080/03615261003622940

Recall the famous scene at the end of the classic Clint Eastwood western, "The Good, the Bad, and the Ugly." Eastwood and the two villains are arranged in a circle, each waiting for the others to draw their guns and start the fight. Everyone wants the same thing (confederate gold), but no one trusts either of the others. The unforgettable music plays and the camera closes in on each pair of eyes, shifting back and forth, watching the others for any movement. The build-up to the eventual gunfight seems to last forever.

In considering the diverse choice of topics of import we might discuss here, it seemed natural to mentally review the readings and work projects that have recently dominated my time. I noticed an interesting convergence of people, online posts, work assignments, and even a bit of my personal life. These individual components seemed to reinforce that we, the stakeholders in the information, technology, and copyright ecosystem, have allowed ourselves to be herded by copyright and technology-induced paranoia into a circular stand-off characterized by some very core misunderstandings of the goals and capabilities we each need from the same intellectual property. We've forgotten what we used to know about each other, perhaps even lost some mutual trust and respect. Of course, this is not universally true - there are a host of examples of productive collaborations - but enough roadblocks remain to prompt articulation of some basic realities that seem to have been forgotten in the crush of information overload, a poor economy, and the need to avoid extinction. The vehicle triggering this concern is the now-familiar license accompanying technologically advanced delivery of intellectual property in the university library environment.

So here are the "things" that converged for me at this point. I have been heavily immersed in researching and preparing the current CIP online course "Deciding to Digitize: Legal, Ethical, and Copyright Considerations". Part of that addresses digitization as a preservation method and that concept led me to consider who should be responsible for digital preservation of scholarly materials and how it should be done. Libraries have traditionally assumed preservation responsibilities but they cannot archive materials they are only "renting." So I began to think about library e-resource licenses that:
a) constantly make it clear that rights to the intellectual property being licensed remain with the vendor (licensor) but
b) do not always contain an acceptable solution for access to the material subscribed to if the subscription must be cancelled.
Having used a significant portion of my working hours reviewing library licenses for e-resources, being away from it for several years, and now resuming license review again, it is clear to me, (trenches point-of-view), that for the most part, the licenses offered reflect very little progress. I find myself again, in 2011, looking at licenses with terms that clearly indicate a) little understanding of why the customer (the licensee, the library, the university, whatever) would be interested in a particular product, and b) reveal a significantly flawed understanding concerning what a library can and cannot do, even if their state law allowed it.

The final pieces of the convergence came with my Christmas present (a Kindle) and my esteemed first guest chatter in the above-mentioned course, Peter Hirtle, Senior Policy Advisor at Cornell University. By happy coincidence, I came across his post last week (2/6/11) on the LibraryLaw.com blog entitled "Kindles and Libraries" that referenced his interesting post last summer, "May a library lend e-book readers". Both of these posts are well worth a read, especially his analysis of iPad licenses that prohibit lending its' software, arguably exactly what libraries that lend iPads do. The Kindle license is also problematic, since it allows use of the content purchased from Amazon only for personal, non-commercial use. Again, a predicament for libraries that lend Kindles. (Not a personal use.) [Aside: What would a "personal use" look like for a library?] Hirtle concludes his first post with a recommendation that libraries work with vendors to create a "library-friendly license." OK. Good. We like "library-friendly licenses."

THE POINT

There continues to be a critical need to get better NOW at writing the "library friendly license." In my opinion, we are not there yet. If it has been written, it isn't being used. Do not make the mistake of thinking this is old news. True, we have multiple library association principles outlining acceptable licensing practices; we have courses and webinars; we have online guidelines and resources all over the place. Been there, done that. Well, it helped and there are many more knowledgeable librarians as a result. But, it is by far, not done, not even close. How long has there been licensing for e-journals and e-databases? And yet, libraries are still slogging through, license by license, the same terms, over and over, that are either legally prohibited or reflect an unrealistic view of a university library environment.

Here are several examples of unacceptable licensor language that I have seen in the last month in e-resource licenses:

• Terms making the library responsible for the behavior of tens of thousands of people who are authorized users:
-Authorized Users and Walk-In Users are bound by the terms of this Agreement as Licensee. Licensee shall use its best efforts to ensure that Authorized Users abide by the terms of this Agreement.
-Licensee shall make best efforts to prevent the infringement of any intellectual property or other rights of Licensor in the Content by its Authorized Users.
-Licensee shall use its best efforts to ensure that Walk-In Users comply with the obligations described in this provision.
-[Licensee.] to use its commercially reasonable efforts to ensure that Authorized Users comply with the terms and conditions of this Agreement, the terms of access and use for online services as set forth in the terms and conditions for online services available at Licensor's website(s), and any and all user guidelines or restrictions provided by Licensor, from time to time;
-It is the customer's obligation to ensure that its Authorized Users are compliant with the terms and conditions of the Agreement.

• A new term - wow!
-Authorized Users are advised that consultation with legal counsel regarding copyright laws prior to the use of certain material contained in the Product(s) may be appropriate.

• Again, the indemnification clause in a library license- what was the saying? "Read my lips?"
-Licensee agrees to indemnify, defend, and hold Licensor, its representatives, etc., etc, harmless from and against any and all claims, demands, obligations, costs, losses and liabilities arising out of use of the Content by any third party, including but not limited to any claim that the use by Licensee, or any such Participating Institution, Authorized User or Walk-In User of the Content violates the copyright, trademark or other intellectual property rights or rights of privacy or publicity of any such third party (but not related to the Content itself), ....(4) arising out of any alleged or actual violation by Licensee, any Participating Institution, Authorized User or Walk-In User of any applicable statute, regulations, rules, or laws;
Look at the breadth of that last one - any alleged violation of any law by a walk-in and the library should agree to be financially responsible?

• The "we can change the contract any time we want so you actually have no idea what you are agreeing to but sign this anyway- in fact, we can even change the price" clause.
-The terms and conditions of this Agreement may be changed from time to time, upon written or electronic notice to Purchaser.
-Information Providers may modify or assign additional terms and conditions, as made available to Purchaser by Licensor, from time to time, which affect the Authorized Users' use of the Product(s), including without limitation, changes in rates, use restrictions, guidelines or termination of access to the Product(s). Those terms and conditions will prevail and control use of the relevant content. Purchaser hereby grants to Licensor and/or Information Providers the right to enforce or assert on their own behalf the provisions of this Agreement to the extent they pertain to the content contained in the Product(s).

• And finally, although I could go on, the mother of all non-disclosure clauses
-Neither party shall disclose the terms and conditions or the subject matter of this Agreement (including without limitation, the content of the Attachments, fees, and any usage data compiled and supplied under Section X, usage statistics or any other information about the other party's business) to any third party without the prior written consent of the other. It is understood by both parties that Licensor is presenting this Agreement and its terms to Licensee under confidential conditions and that the terms of this Agreement constitute trade secrets and highly sensitive and confidential information. If Licensee receives a request for the disclosure of any part of this Agreement pursuant to any applicable state or federal laws, Licensee shall immediately notify Licensor of any such request, and shall not, under any circumstances, disclose any information pursuant to any such request whatsoever without Licensor's prior written consent. (emphasis added)

In other words, we (licensor) are above the law and you, the library licensee, must not obey a legal request (like a subpoena) without our prior written agreement.

These terms are not getting any better; these are licenses for scholarly output, not the plans for a black ops mission.

What's going on here? Are we educating the wrong people? We are still faced off, like the gunslingers in the movie, eyeing each other with mistrust when we are all supposedly striving for the same outcome. If we can't even get e-resource licensing right after all these years, how can we even begin to craft library-friendly e-book licenses? Not to mention all the other e-technology already available and that yet to come?

We need to try again. Think of the savings in man-hours alone, for each party, if there was a standard reality-based library license. Libraries could probably afford to buy more products on those savings alone. If you scoff at the notion that we are throwing significant and dwindling resources away rehabilitating the same flawed licenses over and over, back and forth, email by email, ask the opinion of your nearest University e-resource librarian.

There simply has to be a better way.

Stayed tuned for the next post: Options for getting to reality-based library e-resource licenses.