Let me ask a question (and this may be stupid but): We all
spend
a great deal of time dealing with licensing and contracts
for
e-resources -- which is why people want a SERU -- to save
time.
How often is a contract enforced? In the total universe of
licenses that are created each year what percentage are
violated
(on either side) to the extent that the other party feels
obligated to enforce it?
I understand why lawyers require them and why libraries want
them. I'm just curious how often they're actually needed.
If it
turns out that they're only needed 1 percent of the time
that
might be a good argument for doing something else.
I've wondered why we don't simply replace licenses and
copyright
with insurance. If you spend thousands of dollars on a
database
you'd buy a policy that would protect you if someone did
something that harmed you (and the insurance company could
then
sue to recover their payout) On the other hand, if you
didn't
care you could simply not buy a policy and let people do
what
they want. If you wrote a book you (or your publisher)
might buy
a policy for the first ten years to protect the investment.
In
ten years when your book is out of print and no one is
making a
profit you might drop the policy or move to one with a
higher
deductible -- since your risk is now lower. I care this
year
that someone does something to my new book. I care less in
twenty years what someone does to it. If I had a "high
risk" item
-- say my latest rock album that I expect to sell a million
copies -- I would pay more -- with appropriate deductions
for
taking steps -- like digital rights management -- to reduce
piracy.
We have a fairly good system of assessing risk etc for
insurance
with physical property. Why couldn't that work with
electronic
property? And it would also reduce the legal costs for
companies
because they wouldn't have to be suing individuals -- that
would
be the insurance companies' problem -- sort of like with an
uninsured motorist claim. The price of the insurance could
then
be factored in the price of the product -- increases
probably(??)
offset by reductions in costs for negotiating licenses,
paying
lawyers, saving time.
Karl Bridges
University of Vermont
Quoting Karla Hahn <karla arl.org>:
> Just to clarify further, the working group members have
been quite
> concerned about the legal implications of this project
from its
> inception and we're glad the community is cautious
about these issues.
> Caveat emptor, after all.
>
> As Judy notes, two members of the current working group
have J.D.
> degrees and additionally the working group has been
showing drafts to
> other lawyers for several months now. We do welcome
further opinions
> from legal experts.
>
> As the list members know, absolute consensus on legal
points can be
> difficult to achieve; however, we have been told
repeatedly that the
> SERU approach is practicable from a legal standpoint,
if not
> necessarily universally appealing to attorneys.
>
> Best regards,
>
> Karla Hahn, Director
> Office of Scholarly Communications
> Association of Research Libraries
> Washington, D.C. 20036
> email: karlaarl.org
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