From: Gretchen McCord <[log in to unmask]>
Date: Fri, 5 Dec 2014 10:36:55 -0600

April raises some very important points that I did not mention and should have.

To begin with, I should have clarified that my "advice" was very
general.  Every situation is different, and when you're talking about
any kind of contract, EVERYTHING depends on what the contract says.

Absolutely it is ideal to get any clarifications, definitions, etc.
inserted into the contract itself.  Everything April advised is highly
preferable to getting clarifications in separate documents, be it
email or otherwise.

I need to clarify that I was responding to Viral's email, in which he
discussed getting interpretations from vendors.  Elizabeth's original
email, which began this discussion string, addressed modifying terms.
It's important to distinguish, as much as possible, between
interpreting a provision of the contract and changing the terms of the
contract.  I would never advise or accept actual changes in terms in
any manner other than within the contract itself.

April may have been responding more to Elizabeth's posting than
Viral's.  I would generally agree with her statements in the context
of changing the terms of the contract, but I don't necessarily in the
context of interpreting/defining terms.

Keep in mind that in some cases, this difference may be a gray area.
That's one good reason to get any supporting information, including
interpretations/definitions, actually written into the contract, when
possible.

FYI, I think this entire discussion  provides an excellent example of
(1) how complex and nuanced contract law is and (2) how EVERY
SITUATION IS DIFFERENT.

The terms of a contract ALWAYS control.  Any particular contract may
specifically address the issue of whether supplementary documentation
will be accepted for any purpose whatsoever, including
clarification/interpretation.  So you always have to start with that.

That said, when a dispute arises as to the interpretation of terms of
a contract, a court will look at a variety of factors outside the four
corners of the contract in determining how the terms should be
understood.  Those include the intentions of the parties.  Of course,
intent, being subjective, can be difficult to determine.  To determine
intent, courts consider things like the actions and words of the
parties.  When words are documented, this helps tremendously.  That's
what was behind my statement that "emails are OK."  Again, this goes
to the difference between interpretation and change of terms.  (And
again, that can be a gray area.)  It would be more difficult to use
informal communication as support an argument that both parties
intended to change terms of a contract.  (Generally speaking -- note
that courts also consider the sophistication level of the parties, so
even the accuracy of that last statement will differ, depending on the
situation.)

Finally, a quick note on "expressly included" in the contract.  IF one
chooses to relay on informal communications like email to document the
parties' understanding of the contract, I would absolutely make clear
reference to which contract, which terms, which provisions, etc.  If
you need to fall back on it, it needs to be very clear to a stranger
(i.e., the court) exactly what the subject matter is.

I hope this is helpful and not too convoluted!

Gretchen

Gretchen McCord, MSIS, JD
Editor, The Copyright & New Media Law Newsletter



On Thu, Dec 4, 2014 at 8:16 PM, LIBLICENSE <[log in to unmask]> wrote:
>
> From: April Hathcock <[log in to unmask]>
> Date: Thu, 4 Dec 2014 19:37:07 -0500
>
> I would caution against gathering additional written documents that
> are meant to "interpret" your agreement. Unless those agreements
> become expressly included in the contract (such as in a formal
> addendum or better yet as added clauses in the contract) they are
> unenforceable in a legal sense. The contract itself with always
> control. Emails just won't cut it. I feel it's always best to get the
> full understanding of the parties in the contract itself.
>
> Also, keep in mind that you are not legally able to enter into
> contract terms on behalf of your users. So any obligations the vendor
> expects from them are meaningless in any contract you sign with the
> vendor.
>
> April Hathcock
>
>
>
> On Thursday, December 4, 2014, LIBLICENSE <[log in to unmask]> wrote:
> >
> > From: Viral Amin <[log in to unmask]>
> > Date: Thu, 4 Dec 2014 09:54:56 -0500
> >
> > Hi Elizabeth,
> >
> > I too have dealt with these sorts of terms and also think that you
> > should be cautious about accepting them.  In such cases, I spoke with
> > the vendor or publisher representative, describing a scenario such as
> > you set forth and requesting they explain how the license terms apply
> > to it.  The representative, in my experience, can't do that, so the
> > vendor's legal team steps in to provide the proper interpretation.  I
> > insist that the interpretation be provided in an email or addendum
> > that can be used as a authoritative record.
> >
> > Viral Amin
> > Assistant Professor
> > Metadata/Electronic Resources Librarian
> > Library & Learning Services
> > Marymount University
> > [log in to unmask]
> >
> >
> > On Tue, Dec 2, 2014 at 7:16 PM, LIBLICENSE <[log in to unmask]> wrote:
> > >
> > > From: Elizabeth Henry <[log in to unmask]>
> > > Date: Tue, 2 Dec 2014 11:41:47 -0500
> > >
> > > Hi all,
> > >
> > > I'm responsible for reviewing license agreements here at my
> > > university.  Recently, some librarians expressed interest in
> > > purchasing e-books from a vendor we've never purchased from, so I
> > > looked through their institutional purchase agreement and I came
> > > across these terms that make me uncomfortable.  The terms can be seen
> > > below:
> > >
> > > Permitted:
> > >
> > > Provided that the copyright header attached to the ebook chapter is
> > > retained, Authorized Users at the Purchaser's institution may:
> > >
> > > 1. download and and print one copy of each ebook chapter for personal
> > > use and archive contents on their own personal computers
> > >
> > > 2. send one copy of an ebook chapter by email, hard copy, or fax to
> > > one person in the Purchaser's campus/institutional network at another
> > > location for that individual's personal use.
> > >
> > > The reason why I am not comfortable with these terms is because once a
> > > user downloads the e-book onto their computer or tablet, what they do
> > > with the e-book is essentially out of our control.  We can't be sure
> > > that a user will download only one copy (what if the user has multiple
> > > devices or forgets that s/he already downloaded a copy?) or send to
> > > someone within the University.
> > >
> > > What are your thoughts on these terms?  Have any libraries agreed to
> > > these terms?  If you have, have you had any trouble?  Were you able to
> > > negotiate these terms to something more acceptable?
> > >
> > > Please let me know.
> > >
> > > Thank you,
> > > Elizabeth
> > >
> > > Elizabeth Henry
> > > Instruction and Reference/E-Resources Librarian
> > > Gallaudet University Library