From: Anthony Watkinson <[log in to unmask]>
Date: Wed, 5 Dec 2012 10:16:28 +0000

I have a lot of experience working with external lawyers and I can assure
you that they see their job as making any contract as watertight as possible
for their clients. This is what they are paid to do. The lack of
"reasonable" is there because of this. Unfortunately in this case the vendor
has not fought back and explained to the lawyer that "reasonable" or some
similar legal term (it is a legal term) must be in. As a former intellectual
property director this was my role. The lawyer does not know the customer.
The publishers should.

If I was a librarian I would not sign it as it stands but I would accept
that I would use reasonable endeavours to make sure that passwords etc or
whatever were not plastered across the web. As a publisher I have had to
expose myself repeatedly in downstream contracts and licenses to the
possibility for example that I have not got all the rights that I claim to
have. There is always the chance that (for example) an author has failed to
get a permission and no-one has spotted. I would have no worries if I have
systems in place. All systems fail: that is where "reasonable" comes in. If
I or the company I worked on insisted on cast iron I would not be able to
make the product or service available and the company would go bust.

Anthony

-----Original Message-----
From: Ken Masters <[log in to unmask]>
Date: Tue, 4 Dec 2012 08:41:48 +0400

Hi All

> I agree that the clause is a silly one and that reasonable endeavours
> or suchlike is the most a vendor might expect but have many librarians
> been sued or is this another joke by Dr. Masters?

The binary forming of this question is problematic: the possibility that no
librarian (or institution) has yet been fined or sued should not mean that
this can be taken as a joke.

Here are a few safe assumptions:

- Lawyers do not put jokes into contracts.

- If the word "reasonable" has not been put into the clause, then it is not
by error.  It has been done for a purpose.

- Even if you do wish to take the "reasonable endeavours" route of defence,
user names and passwords like "tester," "testuser,"
"testpass," etc, will not be easy to defend.

- If, after the clause has been pointed out by the institution, the
representative still insists that it stays, then it is definitely there for
a reason.  More, the fact that you pointed that clause out to the
representative is a strong argument that you were aware of that condition,
and understood it and its implications; ignorance of the law is rarely a
defence, but, in that instance, you've made any defence well-nigh
impossible.

Rather, two other questions should be considered:

Q: Are there documented instances where user access codes (usernames and
passwords, including ones like "testpass", etc) have been made publicly
accessible (e.g. on the Internet)?
A: Yes, hundreds.

Q: Do libraries and institutions expose themselves to legal action because
of this?
A: Read your contracts, and have your lawyers read them also.

Regards

Ken

Dr. Ken Masters
Asst. Professor: Medical Informatics
Medical Education Unit
College of Medicine & Health Sciences
Sultan Qaboos University
Sultanate of Oman


On 15 November 2012 00:01, LIBLICENSE <[log in to unmask]> wrote:
>
> From: Anthony Watkinson <[log in to unmask]>
> Date: Tue, 13 Nov 2012 20:54:35 +0000
>
> I agree that the clause is a silly one and that reasonable endeavours
> or suchlike is the most a vendor might expect but have many librarians
> been sued or is this another joke by Dr. Masters?
>
> Anthony
>
> -----Original Message-----
>
> 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