Unit 4: Licenses, shrink-wrap, and SERU, oh my!

The readings for this week primarily focused on how to negotiate a license agreement, what the terms and clauses mean, and then moved on to “shrink-wrap” licenses and Shared Electronic Resource Understanding (SERU).

1. Harris Licensing Digital Content Chapters 3-8
2. Russell Complete Copyright Chapter 7 “Walter Clicks ‘Yes’…”
3. ALA UCITA 101 http://www.ala.org/ala/aboutala/offices/wo/woissues/copyrightb/ucita/ucita101.cfm
4. SERU Hahn, K.L. (2007). “SERU (Shared Electronic Resource Understanding).” D-Lib Magazine, 13(11/12) (http://www.dlib.org/dlib/november07/hahn/11hahn.html)
5. Josh Hadro (8/31/2009) “Texas Attorney General Orders "Big Deal" Bundle Contracts Released” Library Journal http://www.libraryjournal.com/article/CA6686338.html

Harris devoted the majority of her book outlining and defining terms in license agreements, including key license clauses and “boilerplate” clauses. She also discussed several important factors the library representative needs to keep in mind while negotiating with the licensor (vendor, publisher), including “know when to walk away” (“The Gambler” anyone? No?). Anyway, while reading through the clauses, I compared them with what I know about how the UW System Libraries work in terms of electronic resources. However, I am not privy to the agreements, just observant. While it was somewhat difficult to retain the knowledge in these sections, I am happy to know where the information is located in case I need to refer to it sometime. However, I think many of her explanations use common sense, as well as a reliance on having some kind of a draft license agreement in place as a guide in negotiation, harkening back to an earlier chapter. The Rights Granted clause is a good example of this idea. What sort of rights would the library desire? Well, what is the normal use of this resource and what might the future use be?

Some of the more important, or at least new to me, clauses include how to handle possible fears regarding the wide dissemination of materials due to Inter-Library Loans (ILL). Harris suggests that some vendors may not allow copying for ILL purposes, so the library representative might point out that one could easily just print and scan an article, disseminating it just as quickly. This suggestion is supposed to alleviate the licensor's fears? Couldn't they just not allow printing in the license agreement? How would that benefit the library? Perhaps a better way to handle this fear is to negotiate a frequency of “copies” per journal per year. Although, as discussed in class, that has its drawbacks as well.

Another interesting clause is the library and licensee obligations. As part of this clause, the licensor might try to require the library to monitor for illegal use? How? Why? When I read this, my body clenched. Would I be required to monitor patron use? I have never needed to do so in my seven years as a (student) librarian. Then I turned the page. Harris suggested to argue for including the phrase “within reasonable control”. In other words, do not guarantee that no illegal activity, such as copyright violations, will occur. Reasonable control might include posting copyright restrictions and fair use guidelines in a public place. In addition, the staff should be aware of the license terms and agreements. Does this mean everyone? What about a large academic library with student staff? I am unaware of the license agreements of our electronic resources, yet I work the reference desk and interact with patrons. Another problem in this section is the issue of tracking usage. Some licensors might try to require the library to do just that. Harris suggests that if you do track usage, especially by specific users, you should post that you are tracking. This makes me wonder whether or not the UW tracks. I believe no, but how would I know?

In terms of the boilerplate clauses, the one I found the most interesting, especially in regards to the other readings, is Governing law. Because of UCITA (more below), the licensor may wish to have the jurisdiction in a specific state, such as, oh I don't know, Maryland or Virginia. Harris ends her prose with a section on tips for negotiations and a questions section. The tips really harken back to earlier (having a working license as reference), but something she did not address was the use of recording equipment. Obviously, you would need permission, but do people record the negotiations? I think it could be beneficial to both the licensor and library. This would not be a replacement for good notes, but a fall-back position in case of varying stories. The questions chapter, or as I like to call it, did you read the book section, especially in terms of ILL, is a good point of reference and does have a few new ideas, such as what to do if the publisher does not provide you with a license and how to protect the names of the patrons.

Harris briefly addressed software licenses and UCITA, but these were not the primary subject of her book. Software licenses, as addressed by Russell and the ALA, typically fall under the “shrink-wrap” (or click wrap) license category. This means that when a user clicks “I agree” to the license, that person, or institution (?) must follow those terms, if wishing to use the software fully. The terms are non-negotiable, unlike a general license agreement, but may be challenged in court. However, the courts tend to enforce the terms under contract law. Coming out of this in the late-1990s, was the Uniform Computer Information Transactions Act (UCITA).

UCITA, as explained in the ALA reading, is a proposed state contract law, but was only ratified in two states: Virginia and Maryland. UCITA favors the software companies by not allowing software to be transferred or donated due to the license terms. The proponents argue that this will benefit commerce and is needed to promote a healthy e-economy (I was unaware that e-commerce needed any help). The opponents argue that this bit of legislation is harmful to consumers. UCITA is only valid in two states and any litigation would happen in those states (Russell) and as we learned from Harris, litigation location terms are perfectly legal and appropriate. In order to combat UCITA, three states (Iowa, North Carolina, and West Virginia) passed UTICA “bomb shell” legislation (Russell, ALA) protecting its citizens from litigation under UTICA. In 2003, several amendments were passed in order to appease the opponents. While the opponents (libraries, consumer advocates, many lawyers, financial institutions) would rather see UCITA repealed, one amendment is favorable to libraries: donations or transfers of software to public libraries and schools is now allowed under UTICA.

With all of the legislation and complicated terms, how necessary are licenses? I think the software companies would say absolutely necessary, but some publishers are beginning to change their minds, which is partially what led to the Shared Electronic Resource Understanding (SERU). Hahn provides a brief history of SERU and how it evolved. Basically, both publishers and libraries realized that negotiating license agreements took away too much valuable time and resources. Furthermore, others argued that license agreements are not legally necessary, so why have them. Instead, there could be some general concepts and guidelines. In 2006, four groups (Association of Research Libraries, the Association of Learned and Professional Society Publishers, the Society for Scholarly Publishing, and the Scholarly Publishing and Academic Resources Coalition) to explore using electronic resources without a license, yet having some kind of an agreement or standards. Eventually, NISO formed a working group to continue the discussion. Later that year, the working group came out with a draft (SERU) based on NISO best practices.

While there is an agreement on the general concepts between publishers and libraries, there still is some disagreement on the specifics. However, SERU (still in a trial period) is believed to reduce overhead and costs, but may not be applicable for high transaction or or high priced agreements. Basically, it works best for smaller parties. Nevertheless, it is an interesting idea and makes me wonder if license agreements are on their way out. In many ways that would be preferable; however, that would mean a dramatic change away from big business and conglomerations. I just cannot imagine Elsevier agreeing to SERU, as opposed to a (probably) lucrative license agreement. I am sure they did not like or appreciate the “Big Deal Bundle” rulings either.

Unit 3: Copyright and licensing in the digital age

In the second half of her book, Jessica Litman explores issues surrounding copyright in the digital age. Building off her discussion of the complicated nature of copyright law and the various nature of the relationships between the copyright holder and user, Litman concludes that “People don't obey laws that they don't believe in. Governments find it difficult to enforce laws that only a handful of people obey. Laws that people don't obey and that governments don't enforce are not much use to the interests that persuaded Congress to enact them. If a law is bad enough, even if its proponents might be willing to abandon it in favor of a different law that seems more legitimate to the people it is intended to command,” (195). So what does this mean for the future of copyright in the digital age and how might that affect libraries?

The first part of her statement harkens back to the complicated nature of copyright law. Litman repeatedly claims that the law does not make sense to the majority of people, who therefore, will not obey the law, knowingly or not (112, 113, 169). So why then, according to Litman's logic, does the law still exist? It is difficult to enforce copyright violators in the digital age, especially with regards to downloading music or sharing TV shows. Still, the RIAA continues to press suits against violators, although the number of lawsuits are dropping, and may have paid over $64 million in lawsuits to recover about $14 million (http://www.electronista.com/articles/10/07/14/riaa.paid.64m.over.three.years.to.get.14m/). Does the drop in lawsuits mean that the RIAA, as well as the major record labels, are backing off in favor of a different law or means of retaining control, such as licensing? As Litman argues on pages 177-180, the creators of all of the copyright legislation never meant for the copyright holders to have exclusive rights over every digital reproduction, as it is in disagreement with the idea of copyright being a bargain between the holder and user. Therefore, we should no longer rely on reproduction as the impetus for copyright enforcement. The record companies could make up the money for the artists by creating more streamed and downloadable digital content, perhaps through a licensed resource.

In the library world, we are already seeing many more licensed resources for music, as well as many other topics and media. Licensing is one way in which libraries may have access to more online content and is a method in which the issue of reproduction might not matter. For electronic resources and journals, the number of downloads (reproductions) is usually built into the cost of service. In terms of music, many of the services provide streamed content, as opposed to putting mp3 files online for download. Licenses, however convenient for the users and patrons, may provide additional workloads and costs for libraries and librarians. As described by Lesley Ellen Harris in Licensing Digital Content, a library should have some sort of a licensing best use policy to which the librarians are able to refer when negotiating the terms of service.

But going back to Litman and the idea of eliminating digital reproduction as a means of enforcing copyright law, how would this change the outcome of Zeidenberg vs. ProCD? Zeidenberg used copyright law as his defense because he was only copying facts. However, he did make a profit off of digital reproductions at the expense of ProCD, not to mention the fact that he had to click “I agree” to the license terms upon using the program. Setting aside the issue of profit for a moment, I think that the licensing agreement (contract law) would still take precedence in this case, even if digital reproductions were made legal and the courts would rule in favor of ProCD.

Speaking of profit, I agree with this statement by Litman: “Conventional wisdom tells us that, without the incentives provided by copyright, entrepreneurs will refuse to invest in new media. History tells us that they do invest without paying attention to conventional wisdom...many entrepreneurs conclude that if something is valuable, a way will be found to charge for it, so they concentrate on getting a market share first, and worry about the profits – and the rules for making them – later,” (173). (Litman would make a good Ferengi.)This is what is , and what has been, happening now, I believe, in terms of both copyright law and issues surrounding license agreements. The copyright holders, and related stakeholders, such as publishers and intermediaries, have historically been creating the market share and then creating the legislation to back up their desires (see Litman, chapter 3). I wonder if we will see any legislation surrounding licensing, or if the UCC or other forms of contract law will be altered for the digital age.

Unit 2: Litman, Russell, and copyright

My initial reaction to Litman's Digitial Copyright was quite positive. I felt she adequately covered the very complicated nature of copyright law. Of particular importance is Chapter 3, “Copyright and Compromise”, where she provides a solid overview of how, not what, copyright legislation came into being. I found the methods somewhat surprising, although I should not, in that congress basically allowed the industry, along with the Library of Congress librarian, to decide how copyright should work. This method led to years of conferences between the invited stakeholders, followed by extensive backlash from the uninvited groups, such as composers, and piano roll and talking machines producers.

What is troublesome to me is not the fact that stakeholders were involved, after all, it does make sense to have at least some interaction or feedback from the affected parties. Yet, to have the entire legislation dictated by key stakeholders without some sort of guiding principle(s) is quite problematic. So, the idea of Fair Use was thrown in, just to complicate matters further.

This is where it was nice to also read the Fair Use portion of Carrie Russell's Complete Copyright: an Everyday Guide for Librarians. Russell's checklist of Fair Use guidelines are quite helpful, especially considering that due to the nature of copyright legislation, it is best for libraries, and related institutions, to follow fair use and hope it holds up if there is ever a question of copyright infringement. However, the best method is to not put anything on-line unless are permissions have been obtained. Easier said than done.

Still, these readings helped me to solidify my understanding of copyright legislation and fair use guidelines, not to mention the background of lobbying in Washington.