From: Scott Vieira <[log in to unmask]>
Date: Wed, 29 Mar 2017 07:46:06 -0500

Peter,

I agree.  I see these clauses fairly frequently and always request to
change them to something like the following:

"No modification or claimed waiver of any provision of this Agreement
shall be valid except by written amendment signed by authorized
representatives of Licensor and Licensee."

For the most part I don't have too much trouble getting the Licensor
to agree to these changes.  I also make sure this overrides any
separate Terms of Use too, which tends to show up occasionally.
You're right in that saying "no" to a purchase can be difficult since
the Licensor is often the only source for the content.  I usually
discuss this with my selectors and AUL before making a final decision
and explore alternative possibilities as much as possible.   They have
always been very supportive and understanding with my decision on
this. I will also weigh the type of purchase.  If it is a
subscription, I may be slightly more flexible since our investment in
the resource is renewed on a yearly basis.  For an one-time purchase,
then I wouldn't be as flexible.  However again, I can't see any
possibilities where I would agree to open ended modifications by one
party to an executed agreement. If you were to flip the clause to the
benefit of the Licensee, could you imagine the Licensor ever agreeing
to this.

I noticed in this clause that there is also a part about "material
changes" written in the agreement.  I always try to tighten these up
too, so it is clear how much of a material change is allowed, say a
particular percent, etc., by collection, title, etc.  But likewise,
there needs to be a clause that describes what the Licensor is
obligated to do if they reach or surpass this threshold.  This clause
is sometimes missing.  It is important to note the changes should be
calculated by an accumulation of changes over the duration of the
agreement, since I frequently see the changes limited to one instance,
which in my opinion, provides a caveat that allows for further
"material changes" over time in excess of the single instance metric.

Scott Vieira
Electronic Resources Librarian
Fondren Library MS 235
Rice University
6100 Main Street
Houston, TX 77005-1892
Phone: 713-348-2621
Fax: 713-348-5862
Email: [log in to unmask]


On 3/28/2017 3:36 PM, LIBLICENSE wrote:
From: Peter McCracken <[log in to unmask]>
Date: Tue, 28 Mar 2017 19:34:49 +0000

Greetings –

I am fairly new to electronic resources licensing, though not to the
library world. In my role as electronic resources librarian at Cornell
University, I’ve been reviewing, negotiating, and (hopefully) signing
licenses for content requested by selectors. I have a philosophical
problem with one license, and I’d like to request some feedback from
this group as a whole.

Our Music library would like to subscribe to the online version of Die
Musik in Geschichte und Gegenwart (MGG) from NYC-based RILM. Their
newest license agreement incorporates the MGG Online Terms, which
include, in bold characters, the following notice:

“We reserve the right to modify these Terms at any time. All changes
will be effective immediately upon posting to MGG Online and, by
accessing or using MGG Online after changes are posted, you agree to
those changes unless, in the case of material changes only, you choose
to exercise your right below to terminate your access if the material
changes are not acceptable. Material changes will be conspicuously
posted on MGG Online.”

I don’t understand why one would agree to a license that can be
unilaterally changed at any time. Apparently, I would need to be
regularly checking the MGG site if I wanted to learn about material
changes and take the opportunity to not accept them. Not surprisingly,
if I did notice and object to material changes, my notification of
termination “will not entitle you to a refund of any prepaid fees.”

This is not the first such clause I’ve seen, and in a previous license
negotiation, I got a similar clause removed. I find this more than a
bit frustrating – why are we signing a license in the first place, if
you can just change it?

Are other libraries agreeing to these terms? If this is the most
current version of this license, then I guess so. But I don’t
understand why.

And within my institution, I’m trying to determine how I manage my
relationship with the selector, if I say that we will not subscribe
because we will not agree to the publisher’s terms. On the one hand, I
fail in my job of acquiring the resources the selector has identified;
on the other hand, I believe that I fail in my responsibility for
protecting the institution’s interests. Perhaps I’m being
unreasonable; RILM will probably not change terms in an onerous manner
without notice. But why participate in such an unbalanced agreement?

Thoughts and guidance are certainly welcomed.

Peter McCracken
Electronic Resources Librarian
Cornell University
[log in to unmask]
(607) 255-1892