"Just Sign It and Send It Back" And Why Not? Full Text Available Georgia Harper Office of General Counsel University of Texas System

JUST SIGN IT AND SEND IT BACK:
The Good Old Days

• License agreements were rare.
• Nobody read them.
• There wasn't anything bad in them anyway.
• There was nothing to be done about them.
• They were not enforceable.

Things have changed!

• They are no longer an occasional occurrence.
• People do read them.
• They do have bad things in them.
• Our response to them affects their content, now and for the future.
• They are enforceable.

What Could Be So Bad?

Take a peek at a couple - you are likely to be unpleasantly surprised!

• Unrealistic patron access restrictions.
• Severe patron use restrictions.
• Responsibility to monitor patrons' use of works.
• Unacceptable consequences for breach of access or use restrictions:
  
  
  • Loss of service;
  • Library responsibility for harm to the vendor or a third party (indemnification).
    
    
• No right to archive materials.
• Little or no documentation or help-desk access.
• Inappropriate price structure.
• Automatic renewal with new price terms.

Sometimes vendor restrictions are justifiable: without certain protections, they could not furnish materials at all. But, in some cases, shifting responsibility and risk of loss to the library is entirely inappropriate. You have to read and think about each contract to decide what stays in, what changes and what goes.

What Difference Will It Make?

We are involved in an important process: standard-setting

• Contracts that contain good provisions are easier to review and revise, saving time and money on both sides.
• Contracts whose terms are industry standards are enforceable under new Article 2B of the Uniform Commercial Code unless:
  
  
  • a term is inconsistent with customary industry practices
  • a reasonable licensor would know that most licensees in similar transactions would refuse the contract with that term in it
  • a term conflicts with the negotiated terms of a prior agreement between the parties

This means that we really must get reasonable terms into as many contracts as possible. The evolving standards must include contract clauses that accommodate libraries' needs.

For substantive revisions, focus on patrons' needs and library's capabilities:

• Who needs these materials?
• Where are the users located?
• Where will they want to be when they access these materials?
• What will they do with the materials once they have access?
• Can the library effectively limit access?
• Can the library police patrons?

For liability and other legal revisions, develop standard clauses or standard approaches to editing vendor clauses:

• Limitations on liability;
• Caps on damages;
• Automatic renewal and no-fault termination;
• Intellectual property infringement indemnification;
• Governing law and venue.

Centralize contract review to develop expertise and consistency. Communicate with other libraries about licensing. The faster we all get involved, the quicker we will create reasonable standards.

Nobody Enforces These, Do They?

The Backdrop

• Considerable disagreement about copyright rights and responsibilities
  
  
  • CONFU;
  • negotiation of service provider liability.
    
    
• Few lawsuits in the analog environment but:
  
  
  • the digital environment is changing everything;
  • big potential educational "market;"
  • anxious and fearful copyright owners;
  • naive ("it can't happen here") users.

The Role of Contracts in the World of Copyright

Consider the controversy surrounding the scope of fair use for personal research and study:

• A contract can add to and build upon this confusion by:
  
  
  • (i) expressly prohibiting necessary research use activities, raising many questions:
    
    
    • does fair use apply anyway;
    • can contracts affect the rights of nonparties (library patrons, for example);
    • can fair use rights be bargained away at all?
      
      
  • (ii) only vaguely referring to fair use:
    
    
    • at best, unhelpful, because it perpetuates long-standing ambiguity.
      
      
• A contract can clear up the confusion by:
  
  
  • expressly authorizing the activities that are a necessary part of research use;
  • not labeling them fair use or not fair use.

In other words, the vendor and customer may not agree on what fair use means, but they can agree on what patrons may do with licensed materials.

High Risk Contract Clauses

Some clauses are worse than confusing - they literally put the library in harm's way. Look out for clauses that require the library to:

• Tightly restrict access and use in a way that will not meet patrons' reasonable needs;
• Police patrons' use;
• Indemnify the vendor if (when) someone inevitably breaches unrealistic contract restrictions.

Just focus on your patrons' needs, what the library can realistically do to accommodate the vendor's need for control, and DO NOT agree to indemnify a vendor for any harm that results from patron wrongdoing! Line it out.

Living With Your Contract

Once the library has agreed to something, it must honor its commitment.

• Who must know what is in the contract?
• What must they know?
• How can the library inform them?
  
  
  • summarize important provisions in plain English in initial access screens;
  • post signs in computer labs;
  • take vendor complaints seriously and investigate them thoroughly.

In Summary

You will reduce your risk of legal consequences if you strive for clarity, avoid the deadly liability clauses and help those who must live with the contract to understand and abide by its reasonable restrictions.

Hang On: There's Online Help!

• The University of Texas System:
  
  
  • Software and Database License Agreement Checklist;
  • expedited approval procedures.
    
    
• Yale University model contract clauses and detailed explanations.
• ARL brochure, "Strategic and Practical Considerations for Signing Electronic Information Delivery Agreements"
• Your resources here!

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Copyright in the Library: Section 108f Contractual Obligations | Copyright in Library: Acquisiton Under Contract
Other Presentations | Crash Course in Copyright | Intellectual Property Section | Office of General Counsel