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

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

There may have been a time when we all could safely ignore or just sign and return the occasional micro-fine-print license that came unexpectedly with a software program or a data file. Did anyone really read those things? Surely there was nothing "bad" in them, right? Who (in their right mind) would think they were negotiable? And what was the chance that their terms could or would ever be enforced? Well, if there were a time like that, it is long gone...

• 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.

Contracts are changing library acquisition. It is a different world. If you come into it with your eyes and ears open and your focus firmly fixed on your patrons' needs, you will do fine. Come into it any other way and you are likely to be blindsided by the contract bus or worse, trampled by the herd of attorneys following the bus.

What Could Be So Bad?

Some contracts are short, a single page; others go on forever. Length is no indication of content. Some are hard to follow; some are surprisingly easy to read. Style is no indication of content. Some vendors are not familiar; some are old standby's. The vendor's prominence gives no indication of content. Only one thing is relatively certain: you are likely to be unpleasantly surprised by what you read.

These are examples of the "bad" things I have found in software and database license agreements:

• 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.

Vendor contracts are written from the vendor's point of view (surprise!). Vendors want to control what happens to their works, limit their own liability and place responsibility on the customer for policing access to and use of the vendor's materials. In many cases, a vendor's goals are justifiable: without certain protections, they could not furnish some materials at all. But, in other cases, shifting responsibility and risk of loss to the library is entirely inappropriate. Each case presents its own unique circumstances, so there is no "one perfect contract" that would be acceptable to everyone. You have to read and think about each contract to decide what stays in, what changes and what goes.

What Difference Will It Make?

These licenses are fully negotiable! Do not hesitate to ask for what you want. Vendors are willing to work with libraries to tailor their contracts to your needs. In fact, the really good news is that as more libraries ask for better terms, contracts are improving for everyone. This is the function of standard-setting. It works in two ways:

• Contracts that contain good provisions are easier to review and revise, saving time and money on both sides.
• Only contracts whose terms are industry standards are enforceable under new Article 2B of the Uniform Commercial Code.

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.

It's not so hard: for changeable substantive terms like access and use, focus on patrons' needs and library 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 the less variable liability and other legal terms, libraries can develop standard clauses or standard approaches to editing vendor clauses that will work reliably nearly every time:

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

Even modest experience with contracts quickly builds expertise. It helps to centralize contract review to take advantage of such expertise and get consistent results. It is also very important to communicate with other libraries and take advantage of what they know and have accomplished. Remember, it is not just one contract - it is all contracts. The faster we all get involved, the quicker we will create those reasonable standards we need so badly.

Nobody Enforces These, Do They?

The Backdrop

Copyright law has governed the use of library materials for a long time and still there is considerable disagreement between copyright owners and users about our respective rights and responsibilities. For example, the recent CONFU process focused sharply on the disparity between copyright owners' and users' views of fair use in the digital environment. Other negotiations in Washington earlier this year revealed the disparity of views on service provider liability for subscriber infringements. The more I learn about how copyright owners feel, the more uneasy I become.

We cannot take comfort from the fact that few universities or their libraries have been named as defendants in a copyright infringement or breach of contract lawsuit in this context because the digital environment has changed the nature of the game. As copyright owners search for ways to secure and increase their revenue streams in the digital future, they will not ignore the educational "market." Many copyright owners are anxious and afraid about the future; many users are naive about the law and think it won't happen here. This is not a good combination.

The Role of Contracts in the World of Copyright

It is against this backdrop of disparate views of rights and responsibilities that contracts enter the scene. They can further confuse or clarify the situation. For example, there is tremendous disagreement about 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, prompting the questions whether fair use would apply anyway, whether contracts can affect the rights of nonparties (library patrons, for example) and whether fair use rights can be bargained away at all; or

  (ii) only vaguely referring to fair use, which is at best unhelpful because it perpetuates rather than clears up long-standing ambiguity.

• On the other hand, a contract can clear up the confusion if it simply authorizes the activities that are a necessary part of research use, whether it labels them fair use or not. In other words, the vendor and customer may not agree on what fair use means, but they can agree that the contract authorizes patrons to do those research activities that libraries generally believe constitute fair use.

High Risk Contract Clauses

Some clauses are worse than confusing - they literally put the library in harm's way. These are clauses that affect the library's liability for the wrongful acts of people the library has little or no control over or responsibility for under copyright law. 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.

These three are a really bad combination. You can avoid them. Just focus on your patrons' needs, what the library can realistically do to accommodate the vendor's need for control, and DON'T agree to indemnify a vendor for any harm that results from patron wrongdoing!

Living With Your Contract

Even if a license is tailored to patrons' needs and library capabilities, the library still may risk a lawsuit if it fails to do what it agreed to do. If the library agrees to limit access to remote dial-in from anywhere on campus, be sure the technology that prohibits unauthorized use is in place. If the library agrees to use licensed software only in a computer lab with a copy-protection scheme, be sure the copy protection software is working. If a contract only allows written amendments, don't be satisfied with a verbal agreement to change the access rules. And so on.

Living with your contract requires something else as well, something very unusual: the people who access and use the licensed materials and those who control access to and use of the licensed materials have to know something about the contract. The contract becomes an important and valuable document, not just something to be stuffed in a file somewhere. If users do not know what the library agreed to, they cannot be expected to honor the library's commitments.

There are many ways to help users help the library keep its word: summarize important provisions informing users of their rights and responsibilities in plain English in initial access screens; post signs in computer labs; take complaints of copyright infringement 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 has a Software and Database License Agreement Checklist that focuses on these and other issues and suggests ways to "fix" identified problems through online interaction with the checklist. We have also tailored our approval procedures to expedite processing for contracts that follow our recommendations. These measures have improved the quality of contracts at University of Texas component institutions.

Yale University has developed a helpful tool called LibLicense that explains all the typical license contract clauses and illustrates each with good as well as not so good examples so libraries can better understand, review and revise vendor contracts.

ARL has just completed a brochure entitled, Strategic and Practical Considerations for Signing Electronic Information Delivery Agreements. I am especially pleased that all of these materials, and others that will surely follow, are or will be online. It is vital that we share with each other what we know about how to improve contracts. If your library is developing contract review resources, please let me know!

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Copyright in the Library: Section 108f Contractual Obligations | Copyright in Library: Acquisiton Under Contract
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