From: Kevin Smith <[log in to unmask]>
Date: Mon, 25 Nov 2013 23:58:34 +0000

I am not sure how vendors might respond to it, but one proposal I like
is to suggest that the clause state that the courts in and the law of
the defendant's jurisdiction in any action based on the contract would
apply.  That way the party deciding to sue must always bear the
inconvenience of an unfamiliar system, so there is an incentive to
find a solution other than litigation.  And the party who did not
elect litigation is rewarded by the more familiar and convenient
jurisdiction.  This reduces the threat of the extra expense of a
lawsuit in a foreign jurisdiction, which can sometimes be used as part
of intimidation tactics.

Kevin

Kevin L. Smith, J.D.
Director of Scholarly Communication
Duke University Libraries
Durham, NC 27708


> On Nov 25, 2013, at 18:44, "LIBLICENSE" <[log in to unmask]> wrote:
>
> From: Ann Shumelda Okerson <[log in to unmask]>
> Date: Mon, 25 Nov 2013 08:35:55 -0500
>
> Forwarded from another list for any liblicense-l comment and reply.
>
> ---------- Forwarded message ----------
> From: Jan Clark <[log in to unmask]>
> Date: Mon, Nov 25, 2013 at 5:14 AM
> Subject: Law clauses in licences
> To: [log in to unmask]
>
> Can anyone tell me how they handle foreign law clauses in site
> licences please?  Our normal procedure is to ask publishers if they
> will change the stated law or remain silent on the subject (allowing
> us to cross out the clause).  In most cases publishers are happy to do
> this, but occasionally we come across a publisher who is reluctant to
> do this.  We are currently experiencing this with Thieme, which may
> result in our not being able to subscribe to a particular journal that
> has been requested by a department.  The clause mentioning law states:
>
> "6.3 The provisions of substantive law applicable within the Federal
> Republic of Germany shall apply exclusively, and the principles of the
> conflict of laws under private international law, which would justify
> the applicability of foreign law, shall not apply."
>
> Our logic is that we can't agree to abide by laws we don't understand
> - but are we being super-cautious?  What do other people do?
>
> Thanks
> Jan
>
> Jan Clark
> Robinson Library
> Newcastle University
> Newcastle upon Tyne
> NE2 4HQ