Hello Sarah,
I took note of your name here in this thread and, so, was drawn into a discussion that I was only cursorily observing otherwise.  What a helpful and articulate comment you add (no surprise).  Thought I'd just take a moment to commend your contribution and use the opportunity to say that I hope all is well!

Best,

Didi


Didi Yunginger
Mobile 610.213.6260

On Nov 13, 2012, at 4:58 PM, "LIBLICENSE" <[log in to unmask]> wrote:

> From: Sarah Durrant <[log in to unmask]>
> Date: Tue, 13 Nov 2012 12:43:14 +0000
>
> Dear Barbara, Jennifer and fellow sufferers,
>
> I am a publishing consultant, coach and trainer with 23 years'
> experience in the information sector. Amongst other things, I
> facilitate the Licensing and Negotiation Skills course on behalf of
> UKSG.
>
> From the wording you have quoted, the action is ensuring Users comply
> with terms.  As you suggest, this language is unreasonable since it is
> not physically possible for anyone to guarantee such an undertaking.
> Unfortunately, as you will be aware, this kind of language is quite
> common within content licences.  Typically drafted by lawyers who are
> used to dealing with - indeed are paid to obsess about - certainty,
> unambiguity and full compliance, publisher licences can sometimes be
> blunt instruments.
>
> My suggestion in such circumstances is always dialogue.  Go back to
> the service provider and explain why this wording gives you issue.
> Provide detail about how your institution is organised to illustrate
> why this level of compliance is not possible. Let them know what
> practices you currently follow to achieve awareness and compliance
> amongst your Users.  It can be helpful to supply an alternative
> wording which you would be able to sign (the JISC model licence can
> provide wording here). As Jennifer suggests, clauses such as 'use
> reasonable effort' or similar are more workable.
>
> If the service provider proves intransigent, it may be a matter for
> your legal counsel if you have one.  An alternative would be to
> request in writing a statement from the service provider detailing the
> actions they would take should you sign and then be found liable for
> non-compliance at some future point. Quite often, service providers
> issue warnings and allow time for corrective action to be taken before
> taking more draconian measures but much depends on the nature and
> extent of any breach. The ultimate course of action of course is for
> you not to sign the licence but this can amount to cutting off one's
> nose to spite one's face, particularly if the resource in question is
> in high demand.
>
> It would be useful if service providers who have such clauses in their
> licences could comment on what the fear or mistrust is that's driving
> their approach. How much real experience do you have of significant
> breach, particularly given how much libraries have done to cultivate
> awareness and good practice in the area of compliance?
>
> Similarly, it would be useful to hear from service providers who are
> content with more reasonable language in their licences: what is it
> you are able to trust which other content owners apparently feel they
> cannot?
>
> Regards
> Sarah Durrant
>
> Red Sage Consulting
> Sarah Durrant Coaching
> Office: +44(0)1728 633196
> Mobile: +44 (0)7715 121910
> Email: [log in to unmask]
> uk.linkedin.com/in/sarahdurrant
>
>
> -----Original Message-----
>
> From: "B.E. Swetman" <[log in to unmask]>
> Date: Fri, 9 Nov 2012 10:50:13 -0500
>
> I'm also dealing with this contract and have a question about the
> later portion of statement.
>
> It says "The Client shall ensure that each User fully complies with
> the terms of this Agreement (including the Terms of Use) and the
> Client shall be responsible to The Economist for any failure so to
> comply."
>
> It has occurred to me that there is no particular action that we are
> agreeing to be responsible to do. Does anyone know what this
> "responsible to The Economist for any failure" actually means?
>
> Barbara Swetman [log in to unmask]
> Acquisitions and Serials Librarian
> Hamilton College Library
> Clinton, NY 13323
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