Completely agree with Cindy – in these licenses, you are the lending library.  As Cindy says, the CONTU Guidelines applied to borrowing libraries since it was a way – deemed reasonable in 1978 based on the environment, practices, journal price and market, library budgets, etc., in existence in the mid-1970s – to interpret what might trigger the ‘need’, under Section 108, to subscribe based on the amount of the journal you were using.  CONTU was trying to put numbers on what constituted a substitute for a subscription in 1978, which, btw, was 40 years ago, is not the law, was not intended as a hard and fast rule, and was supposed to evolve as the environment evolved.   As a lending library, you cannot possibly know or monitor what a borrowing library is or is not doing with respect to either Section 108 or its 1978 interpretation, aka CONTU.  Putting that in a license amounts to essentially throw-away language since a lending library does not have the obligation, under the law or any guidelines, or the ability to monitor or control what a borrowing library does.  As Cindy and others recommend, it really makes no sense to have it there because it doesn’t do anything.

An analogy would be when a license attempts to require the institution to “warrant” or “ensure” or “promise” that its users (in our case, 35,000) will/shall abide by the terms and conditions of the license.  Really?  So far, neither I nor any of the Vendors I have asked point blank, have been able to tell me one single thing the institution can do to prospectively control the behavior of my 35,000 users.  Nada.  I can use reasonable measure to control access, to inform them of T&Cs and to respond to perceived situations but I cannot promise or warrant their behavior.  So, don’t do it.

Best,

Peggy