From: Kevin Smith <[log in to unmask]>
Date: Fri, 30 Oct 2015 11:52:46 +0000

It is difficulty to assess an apparent contract ambiguity without
looking at the entire document, but one thing about your message is
especially interesting — the assumption that the phrase you quote from
the warranties clause would inevitably override authorization for ILL
found elsewhere in the contract.  It strikes me as plausible, more
plausible, in fact, that it would be the other way around, meaning
that the authorization "overrides," in a sense, the warranty.

If we make an effort to read the two provisions together, there is one
way in which to give them both meaning — if we assume that the
warranty is a general provision that all licensees are asked to make
but that the authorization elsewhere in the document is exactly the
kind of express written consent that is referred to in that warranty.
This  approach would follow one of the key canons for contract
interpretation, which is that a contract should be read, if possible,
to give mean to all provisions; we should not assume that some
language is meaningless of "just extra."  If the warranty was a simple
override of the authorization for ILL, that latter provision would be
meaningless (which is the way you are reading it).  But if the
authorization is taken as exactly the sort of consent that the
warranty anticipates, both provisions have meaning.  This would also
take account of another key rule of contract interpretation, which is
that ambiguities should be construed in favor of the party that did
not draft the contract, although in this situation I am inclined to
think, based on the reading I propose, that there is not really an
ambiguity here.

Kevin L. Smith, M.L.S., J.D.
Director of Copyright and Scholarly Communications
Duke University Libraries
Durham, NC 27708
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From: Anna Creech <[log in to unmask]>
Date: Thu, 29 Oct 2015 16:22:34 -0400

I'm working with a publisher on an amendment that would permit us to
send copies of articles via ILL (the standard license does not), and
they have included the following line:

"Licensee warrants that... Licensee will not make articles available
to any other library, database, or service that provides document
delivery or ILL services without the express written consent of
Publisher"


My interpretation is that we cannot send articles via ILL to any
institution that offers ILL services without written consent from the
Publisher each time, which would pretty much negate the point of
having the ILL amendment added in the first place. Am I
misunderstanding the language here?

I've asked them for clarification, but I wanted to share this in case
someone else has had this experience and could illuminate.

Anna