Thanks for all of the feedback that I received on my question regarding the Economist license. I also got many replies off-list and all of those agreed not to sign with that language as well. Just to clarify...I work at Johns Hopkins University on a team that runs a separate online library for Excelsior College. So, this question pertains to the Excelsior College Library and does not affect the JHU libraries or their collections. This is an issue for us as a small, online Library, since we do not have the Economist in print and it was dropped from Ebsco. We do not get it in any other packages like some larger libraries might. However, after much back and forth, (well actually just back since they did not budge at all even when I suggested just adding the word "Reasonable"), we decided to do exactly what Sally described and did not move forward with the subscription. We will monitor any requests over the next year to determine if our users miss it, but I am guessing they will either use the few free individual articles they are allowed or use something else. No one has complained yet and it was dropped from Ebsco a while back... Best, Jennifer Jennifer Castaldo Distance Education Librarian/Electronic Resources Manager Entrepreneurial Library Program Johns Hopkins University Baltimore, MD 21218 [log in to unmask] 410-516-8823 Excelsior College Library [log in to unmask] 877-247-3097 -----Original Message----- From: LibLicense-L Discussion Forum [mailto:[log in to unmask]] On Behalf Of LIBLICENSE-L automatic digest system Sent: Wednesday, November 14, 2012 1:00 AM To: [log in to unmask] Subject: LIBLICENSE-L Digest - 12 Nov 2012 to 13 Nov 2012 (#2012-225) There are 5 messages totaling 368 lines in this issue. Topics of the day: 1. no negotiations question (5) ---------------------------------------------------------------------- Date: Tue, 13 Nov 2012 14:40:04 -0500 From: LIBLICENSE <[log in to unmask]> Subject: Re: no negotiations question From: "Schwartz, Judy" <[log in to unmask]> Date: Tue, 13 Nov 2012 02:19:23 +0000 I would suppose it to mean, that if the publisher became aware of any egregious / regular downloading of many articles over a short period of time, that they could sue you for damages; i.e., however much they deem an article's worth if anyone purchased it from them. Jennifer, since you are at a much larger institution than I, perhaps you could speak with your copyright (although this is a contract, which trumps copyright) guru on campus? If you check Kenneth Crew's website, there may be verbiage there you could use, OR you could contact Ken and see what he says. I agree that there's no way you could assure what they are asking you to do. Judy Judith K Schwartz Director of Library Services The Libraries @ Trocaire ________________________________________ 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 198 College Hill Rd. Clinton, NY 13323 On 10/31/2012 7:19 PM, LIBLICENSE wrote: > From: Jennifer Castaldo <[log in to unmask]> > Date: Wed, 31 Oct 2012 20:11:41 +0000 > > Hello all, > > I monitor this list daily, but it is my first time posting. I am > hoping you can help me! > > Earlier this year, Ebsco had to drop the full text version of the > Economist from its aggregated databases (such as Academic Search > Complete) due to a bid from the EIU for a semi-exclusive > contract/rising costs. So, now we are currently trying to get an > institutional online subscription from the Economist directly, as this > is the only way to get the full online version with images. > > I have issue with a line in their subscriber agreement: > > “The client shall ensure that each user fully complies with the terms > of this agreement.” > > Typically, other subscriptions have a similar clause, but it is worded > as such: “The client shall use reasonable efforts to notify users of > the terms of this agreement.” Worded this way I am obviously fine > with. > > I have always been taught never to promise that we will “police” users > and we have no way to “ensure” that users comply. I have been trying > to negotiate this small line in the agreement, but they will not > budge. They said "this is a consumer based contract and we must > maintain consistency in the terms for all users of the website. The > contract is what it is." > > Have you all had any luck in dealing with similar situations? Is this > something that is not a big deal that I should just sign and overlook? > > Thank you in advance for any advice! Best, > Jennifer > > Jennifer Castaldo > Electronic Resources Manager/Distance Education Librarian > Entrepreneurial Library Program > Johns Hopkins University > Baltimore, MD 21218 > [log in to unmask] > > Excelsior College Library > [log in to unmask] ------------------------------ Date: Tue, 13 Nov 2012 14:41:34 -0500 From: LIBLICENSE <[log in to unmask]> Subject: Re: no negotiations question From: Winston Tabb <[log in to unmask]> Date: Tue, 13 Nov 2012 02:57:54 +0000 Libraries/librarians cannot be "responsible" for "ensuring" what users do. It would be difficult to imagine any university counsel's agreeing to such language. ----- 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 198 College Hill Rd. Clinton, NY 13323 On 10/31/2012 7:19 PM, LIBLICENSE wrote: > From: Jennifer Castaldo <[log in to unmask]> > Date: Wed, 31 Oct 2012 20:11:41 +0000 > > Hello all, > > I monitor this list daily, but it is my first time posting. I am > hoping you can help me! > > Earlier this year, Ebsco had to drop the full text version of the > Economist from its aggregated databases (such as Academic Search > Complete) due to a bid from the EIU for a semi-exclusive > contract/rising costs. So, now we are currently trying to get an > institutional online subscription from the Economist directly, as this > is the only way to get the full online version with images. > > I have issue with a line in their subscriber agreement: > > “The client shall ensure that each user fully complies with the terms > of this agreement.” > > Typically, other subscriptions have a similar clause, but it is worded > as such: “The client shall use reasonable efforts to notify users of > the terms of this agreement.” Worded this way I am obviously fine > with. > > I have always been taught never to promise that we will “police” users > and we have no way to “ensure” that users comply. I have been trying > to negotiate this small line in the agreement, but they will not > budge. They said "this is a consumer based contract and we must > maintain consistency in the terms for all users of the website. The > contract is what it is." > > Have you all had any luck in dealing with similar situations? Is this > something that is not a big deal that I should just sign and overlook? > > Thank you in advance for any advice! Best, > Jennifer > > Jennifer Castaldo > Electronic Resources Manager/Distance Education Librarian > Entrepreneurial Library Program > Johns Hopkins University > Baltimore, MD 21218 > [log in to unmask] > > Excelsior College Library > [log in to unmask] ------------------------------ Date: Tue, 13 Nov 2012 14:43:07 -0500 From: LIBLICENSE <[log in to unmask]> Subject: Re: no negotiations question From: Ken Masters <[log in to unmask]> Date: Tue, 13 Nov 2012 08:40:52 +0400 Hi All It's quite easy, actually. There is no particular action, because it includes EVERYTHING. Given that the terms of use will include prevention of allowing outsiders access, it simply means (for example) that the client (you) has the responsibility of ensuring that not a single one of your staff and students ever shares a user name and password with anyone else, never has their computers hacked with spyware, stolen, accessed through wifi snoopers, etc., that your entire university database of usernames and passwords is absolutely secure, and that, if any breach occurs that allows an outsider to access the journal, then you'll find yourself paying a fine or in court. I mean, those are surely not unreasonable demands (if you're working for Fort Knox or the CIA, that is). When you query that at the time of signing, you'll probably be told not to worry too much about it, as those are just "fairly standard and legal clauses" that "everyone signs." The rep will probably even crack a silly joke about "you know how stuffy the lawyers are." When the breach occurs, however, you'll find out just how quickly that defence vapourises, and just how expert those lawyers actually are. Regards Ken ------ Dr. Ken Masters Asst. Professor: Medical Informatics Medical Education Unit College of Medicine & Health Sciences Sultan Qaboos University Sultanate of Oman ------------------------------ Date: Tue, 13 Nov 2012 14:45:30 -0500 From: LIBLICENSE <[log in to unmask]> Subject: Re: no negotiations question 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 ------------------------------ Date: Tue, 13 Nov 2012 14:46:43 -0500 From: LIBLICENSE <[log in to unmask]> Subject: Re: no negotiations question From: "Gibson, Sally" <[log in to unmask]> Date: Tue, 13 Nov 2012 14:30:54 +0000 I also reached a dead end when trying to revise those statements in the Economist license. We have not had online access to the Economist since it was dropped from the EBSCO database. I have had no complaints. The title was used when we had online access and I know that convenience is a driving force for article choices. Our students are either taking advantage of what is available on the Economist website for free or they are choosing another source. Since the Economist is not willing to revise their license agreement so that it is more library friendly, I have decided to spend my money on something else. Sally Sally Gibson Head of Technical Services Reinert Alumni Library Creighton University [log in to unmask] ------------------------------ End of LIBLICENSE-L Digest - 12 Nov 2012 to 13 Nov 2012 (#2012-225) *******************************************************************