From: Peggy E Hoon <[log in to unmask]>
Date: Wed, 13 Jun 2018 17:10:23 +0000

Completely agree with Cindy – in these licenses, you are the lending
library.  As Cindy says, the CONTU Guidelines applied to borrowing
libraries since it was a way – deemed reasonable in 1978 based on the
environment, practices, journal price and market, library budgets, etc., in
existence in the mid-1970s – to interpret what might trigger the ‘need’,
under Section 108, to subscribe based on the amount of the journal you were
using.  CONTU was trying to put numbers on what constituted a substitute
for a subscription in 1978, which, btw, was 40 years ago, is not the law,
was not intended as a hard and fast rule, and was supposed to evolve as the
environment evolved.   As a lending library, you cannot possibly know or
monitor what a borrowing library is or is not doing with respect to either
Section 108 or its 1978 interpretation, aka CONTU.  Putting that in a
license amounts to essentially throw-away language since a lending library
does not have the obligation, under the law or any guidelines, or the
ability to monitor or control what a borrowing library does.  As Cindy and
others recommend, it really makes no sense to have it there because it
doesn’t do anything.

An analogy would be when a license attempts to require the institution to
“warrant” or “ensure” or “promise” that its users (in our case, 35,000)
will/shall abide by the terms and conditions of the license.  Really?  So
far, neither I nor any of the Vendors I have asked point blank, have been
able to tell me one single thing the institution can do to prospectively
control the behavior of my 35,000 users.  Nada.  I can use reasonable
measure to control access, to inform them of T&Cs and to respond to
perceived situations but I cannot promise or warrant their behavior.  So,
don’t do it.

Best,
Peggy

*Peggy E. Hoon, J.D.*

Director of Copyright Policy and Education
LSU Libraries
Louisiana State University
295 Middleton Library, Baton Rouge, LA  70803
office 225-578-2218 | fax 225-578-6825
lsu.edu <http://www.lsu.edu/>

From: "KRISTOF, CYNTHIA" <[log in to unmask]>
Date: Sun, 10 Jun 2018 22:20:58 +0000

Because CONTU is a set of guidelines with activities (such as tracking)
that concern the borrowing library. The lending library has a couple duties
in CONTU, too, but the weight is largely on the borrowing library. As you
know ILL sections of licences concern what libraries can do as lenders.
However, we can't control what the borrowing libraries do regarding CONTU
tracking... therefore, it's largely absurd to agree to it in a license and
potentially trouble. I know the potential trouble part is probably a long
shot. I just got done vacuuming, so I'm kind of wiped out, and this
probably isn't the best explanation!

Maybe others can add to this? I hope this helps.

------------------------------

From: Rachel Becker <[log in to unmask]>
Date: Sat, 9 Jun 2018 15:16:32 +0000

Hi Cindy,

Can you expand on why you recommend not including CONTU guidelines in
licenses?

Thank you!

Rachel Becker
Electronic Resources Management Librarian
University of Wisconsin – Madison

________________________________

From: "KRISTOF, CYNTHIA" <[log in to unmask]>
Date: Thu, 7 Jun 2018 15:30:59 +0000

I would highly recommend leaving CONTU out of licenses altogether.

Leaving in secure electronic transmission or something to that effect is
fine.

Best,

Cindy Kristof
Head, Copyright and Document Services & Associate Professor
Kent State University Libraries
1125 Risman Drive
Kent, OH 44242-0001
330-672-1641
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