From: Joseph Esposito <[log in to unmask]>
Date: Wed, 4 Dec 2013 21:07:17 -0500

There is no rigid moralism to the fable.  The only rigidity is among
those people who are imprisoned by an idea.  Here are the keys to get
out:  solve the real problem of incompetent administration.

As for negotiating in one's own interest, I could not agree more.
This is why CCC backed the Georgia State litigation and why "Big
Deals" come with annual price increases.

Joe Esposito


On Wed, Dec 4, 2013 at 12:55 PM, LIBLICENSE <[log in to unmask]> wrote:
>
> From: Kevin Smith <[log in to unmask]>
> Date: Wed, 4 Dec 2013 10:19:07 +0000
>
> This fable is very cute, but I don't understand why the rigid moralism of
> a fable should apply to contract negotiations.  Certainly each party to a
> potential contract has the right to negotiate for terms that will reduce
> the risk to that party of breach.  No one can do everything, and it is
> simple prudence, one might even say honesty, to be sure that one can
> perform the obligations undertaken in a contract in compliance with its
> terms, and to reform or remove terms that raise a risk of non-compliance.
> As it happens, I disagree with Danny about the risk associated with this
> particular type of clause, but that is beside the point; he and his
> institution are entitled to negotiate in their own interests.  The vendor,
> as the drafter of the contract, has presumably already made certain that
> the terms meet their needs and protect them adequately.  Why is it a
> subject of sarcastic condemnation when the library that is being asked to
> sign the agreement simply tries to do the same thing?
>
>
> Kevin L. Smith, M.L.S., J.D.
> Director of Copyright and Scholarly Communications
> Duke University Libraries
> P.O. Box 90193
> Durham, NC 27708
> 919-668-4451
> [log in to unmask]
>
>
> On 12/3/13 2:26 PM, "LIBLICENSE" <[log in to unmask]> wrote:
>
> >From: Joseph Esposito <[log in to unmask]>
> >Date: Mon, 2 Dec 2013 09:12:06 -0500
> >
> >Let me be sure I understand this.  An institution concludes that it
> >will be incompetent to comply with the terms of a license that it
> >agrees to sign.  Rather than examine the area of anticipated
> >incompetence in order to fix it, it insists that the terms of
> >compliance be removed.  The institution is now therefore in
> >compliance.  Everyone is happy.  Do I have that right?
> >
> >Will our esteemed moderator permit me to retell the fable of the
> >disobedient dog?
> >
> >The owner of a beloved dog was upset that the dog was disobedient.
> >The dog's master would put it out in the yard, where it would bark and
> >bark, annoying all the neighbors.  The master shouted, "Don't bark!
> >Don't bark!"--but to no avail.
> >
> >Then the owner had an idea.  He called the dog to his side and said,
> >"Go out in the yard and bark to your heart's content."  The dog
> >dutifully went outside, barked and barked, until the neighbors howled
> >in a raging response.
> >
> >The master called the dog in and gave it a treat.  The dog had
> >complied with the master's wishes in every way.  Everyone is happy.
> >
> >Joe Esposito