Date: Thu, 7 Jun 2018 14:54:57 +0000

I would agree with many of the points offered here but feel it is important to correct this statement:

Licenses cannot trump law.

Unfortunately, licenses (a contract) can absolutely trump the law. You can always give up or lose rights you might otherwise have under the law by contracting them away. For example, many licenses attempt to limit the statute of limitations within which you can bring a lawsuit over some breach of the contract – the most common one I see is the statement that the SOL is to be one year – whereas your state’s SOL for contracts may be something else entirely. Most states have a contract SOL of three years – in Louisiana it is ten years. If we sign a contract that states the SOL is one year, then it is one year, no matter what you would otherwise have been entitled to in your state. Some licenses attempt to have you give up your right to a jury trial. Some licenses try to abrogate the right (sometimes it’s a common law right, in our state it is actually codified) that any ambiguities in the license are to be construed against the drafter of the agreement. There are lots of examples where – if you agree to it in the license, then it doesn’t matter what the law says. (there are other things that are illegal/void that cannot be changed by contract)

But, for sure, you absolutely can forfeit fair use rights in a license if you’re not careful and that license will control. ILL is a ‘right’ under copyright law in Section 108(g)(2) but if your license forbids ILL and you agree to it, that’s it – no ILL even though that is or was (before the license) a right you had under the copyright law, just like fair use.

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

From: Todd Puccio <[log in to unmask]>

Date: Wed, 6 Jun 2018 13:37:59 +0000

Emily :

I am not a lawyer, but, I have done many licenses.

I would recommend to include language that specifically allows for :

Sharing among Colleagues

And

ILL – by the CONTU Guidelines using secure transmission.

There are many folks that believe that there is no reason to include any mention of Fair Use in the document.

Licenses cannot trump law.

Fair Use is Legal, Fair Use is Fair Use.

Just think about it --- if you didn’t have the license at all, you could still use their resources in a way that can be Fair Use, by law. By entering into a license, you should only need to expand what you can do with the resources, the license should not constrict what you can already do.

The license expands on top of – over and above Fair Use. You should not even need to mention it.

If the license has terms that are more restrictive than Fair Use – You should reject that language and point out, verbally, that Fair Use already allows this activity and you might as well not license the products if the license doesn’t expand the scope of your rights to use the materials.

Good Luck

Sincerely,

Todd Puccio

=====================
Todd Puccio
Director ofTechnical Services / Librarian
Nova Southeastern University
Martin and Gail Press
Health Professions Division Library
3200 S. University Drive
Ft. Lauderdale, FL 33328
(954)262-3114 or ext2-3114

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From: Emily Ferrier <[log in to unmask]>

Date: Tue, 5 Jun 2018 19:23:33 +0000

I am very new to license negotiation, and recently asked to include a fair use clause in lieu of calling out specific uses like ILL or educational/teaching uses, which they didn’t want to include either. The response was that the license was for “for personal use and consumption only.”

If you are willing to talk about how you handled the situation when they rejected both the specific uses and a generic fair use clause, please contact me off-list.

Thank You!
Emily

Emily Ferrier
Library | Senior Librarian
She/her/hers
Olin College of Engineering
1000 Olin Way| Needham, MA 02492
Tel: 781-292-2386 | http://library.olin.edu
Leading the Revolution in Engineering Education