The commercial interests of this world do not cease to amaze!
UCITA is a proposed state contract law that would encourage uniform licensing standards for "information in electronic form," which usually means software and anything subject to click-through or web-wrap licensing. The law makes such non-negotiated licenses even more enforceable, to the benefit of licensors/vendors. Major proponents are large technology companies, including Microsoft and AOL. Who is opposed to it? Almost everyone else! Libraries, retail and manufacturing companies, consumer advocates, and financial institutions all have cried out against UCITA.
It only passed in two states (Virginia and Maryland). "Great, I don't live in either of those states!," you say? Wrong! A software license with a choice of law provision can choose either Virginia or Maryland as the governing state. (Thanks for nothing, Virginia and Maryland legislators!) Consequently, a handful of states have enacted "bomb-shelter" legislation to protect their residents from such shenanigans. (You win my heart again, Iowa!)
Once again, I'm annoyed about large commercial interests taking advantage of a widely distributed, less rich, less powerful group of interests. I can understand that software vendors want to protect their product. But click-through licenses already exist. (Although are not always upheld in a court of law, but often are (ProCD v. Z).) But when the American Bar Association's working group on UTICA says that it "is a very complex statute that is daunting for even knowledgeable lawyers to understand" you know something has gone terribly wrong. When even the lawyers cannot figure out the legalese, the rest of use have no hope! This is bad lawmaking.
Once again we are hitting upon this question of putting too much into licenses/contracts/laws/guidelines/whatever. CONFU ran up against this problem as previously noted. Here, UTICA would likely dissolve the careful balance of federal copyright law in favor of the software companies. Contracts, laws, and guidelines (usually, not always) make things easy by stating an explicit set of rules that coordinate people's actions when it comes to content use. It could be a good thing if everyone was on the same page. But it is a bad thing when there are competing interests--you lose any flexibility and balance by writing such rules down. (And when you are up against Microsoft, how well do you think that will end for libraries?)
Thursday, September 23, 2010
Harris's Licensing Digital Content
This week, we finished reading Lesley Ellen Harris's Licensing Digital Content: A Practical Guide for Librarians (2nd ed.). This book is a good introduction to the nitty-gritty details of licensing in a library setting. It has a very practical focus and would make a good reference book if you were ever to find yourself in a situation where you needed to negotiate a license. I am sure any librarian making acquisition decisions, especially those new to doing so, could learn something from this book.
The bulk of the book outlines the need-to-know aspects of licensing. It has a very introductory and sometimes encyclopedic feel. Key digital licensing clauses and boilerplate clauses each get their own chapters. Chapter 1 "When to License" provides a nice introduction to both the book and licensing in general. However, it seems like many librarians will know when to license, as someone or something is pushing for service--some parts feel a little redundant or obvious. Some of the more interesting parts in this chapter are key elements to look for when licensing, including ease of access, "one-stop" transactions, etc. Harris includes nice lists of things to watch out for when acquiring networked content. I find the section on model licenses very helpful because it lists many positive aspects of model licenses (for instance, industry consistency) and negative aspects (lack of flexibility). It would be good to keep these positive and negative characteristics in mind because they might be easy to miss when using a model license.
Other concepts covered that seemed less obvious included interlibrary loan, libraries being responsible for users, and global use of content. Interlibrary loan is often complicated enough without the additional layer of demands placed by varying licensing contracts. It's a good idea to try and keep those demands simple, so as to not make ILL overly complicated. Another important concern is libraries not being responsible for users. Harris makes a good point by saying that libraries should not promise something that they cannot enforce. If a library has no one to monitor patron use (they usually don't), then they should not agree to do so. I imagine that many content providers would prefer, and perhaps pressure, libraries into agreeing to monitor use. It is important to agree to only that which you can accomplish. Another good point made in the book is use on a global scale. This might mean licensing works that are found in other countries, but also allowing your own patrons to use content outside of your own country. I found myself thinking of my many grad student friends who did their dissertation research abroad and how different their experiences might have been if they could not have accessed UW's databases because they were in another country. Researchers travel abroad to do research frequently enough that it would be hard to ignore them as a patron group. Copyright concerns across countries are also important to keep in mind. There seem to be many places where licensing could go wrong if you were not aware of the various limitations that potentially come with licensed content.
I found Chapter 6 "Un-Intimidating Negotiations" to be one of the more interesting chapters in the book. Harris strikes a surprisingly positive note in this chapter. She takes a tone that most things are negotiable, even the presumed "non-negotiable" parts of a contract. (I think that what she means is that it never hurts to ask--you probably will get a no, but you might get a yes.) She does acknowledge that "Librarians often feel powerless entering into, and during the process of, negotiating. Content owners like publishers and aggregators seem to have all the money and plenty of potential customers (and therefore power), while librarians often have only limited resources. However in a negotiation, you are seeking an end result that works for both parties" (94). I completely agree with the first sentence there. I imagine that many librarians must look at negotiations as a lost cause--the Elseviers of the world have so much money and power, why would they negotiate in good faith with any library, large or small? Harris makes it seem that with good negotiation, libraries and content providers can get what they want out of any deal. My response is: Really? Then why are libraries up in arms over the mounting cost of digital content? I am sure that libraries can get what they want in a negotiation--eased ILL restriction, unlimited access for any user that walks into the library, global use, etc. I bet that the vendors would be happy to agree to those terms. But at what cost? You can only negotiate so much without it costing more and more. (Or alternatively, lose rights or access so that databases costs less.) Harris's peppy tone belies that fact that it is still very difficult to negotiate an inflated bottom line.
Or have libraries just not been clever enough to negotiate harder? I don't really think that is the case. Libraries want to provide as much access as they can afford to patrons who are entirely ignorant of cost. It really does seem like libraries are stick in between a rock and a hard place when it comes to balancing the needs of patrons while negotiating price and rights with content owners. Maybe I am just too pessimistic and cynical when it comes to discussions about vendors, rights, and cost.
All in all, though, I found Licensing Digital Content to be quite handy in a practical way. I think that I could make use of it if I were ever to find myself in a situation that required licensing digital content.
The bulk of the book outlines the need-to-know aspects of licensing. It has a very introductory and sometimes encyclopedic feel. Key digital licensing clauses and boilerplate clauses each get their own chapters. Chapter 1 "When to License" provides a nice introduction to both the book and licensing in general. However, it seems like many librarians will know when to license, as someone or something is pushing for service--some parts feel a little redundant or obvious. Some of the more interesting parts in this chapter are key elements to look for when licensing, including ease of access, "one-stop" transactions, etc. Harris includes nice lists of things to watch out for when acquiring networked content. I find the section on model licenses very helpful because it lists many positive aspects of model licenses (for instance, industry consistency) and negative aspects (lack of flexibility). It would be good to keep these positive and negative characteristics in mind because they might be easy to miss when using a model license.
Other concepts covered that seemed less obvious included interlibrary loan, libraries being responsible for users, and global use of content. Interlibrary loan is often complicated enough without the additional layer of demands placed by varying licensing contracts. It's a good idea to try and keep those demands simple, so as to not make ILL overly complicated. Another important concern is libraries not being responsible for users. Harris makes a good point by saying that libraries should not promise something that they cannot enforce. If a library has no one to monitor patron use (they usually don't), then they should not agree to do so. I imagine that many content providers would prefer, and perhaps pressure, libraries into agreeing to monitor use. It is important to agree to only that which you can accomplish. Another good point made in the book is use on a global scale. This might mean licensing works that are found in other countries, but also allowing your own patrons to use content outside of your own country. I found myself thinking of my many grad student friends who did their dissertation research abroad and how different their experiences might have been if they could not have accessed UW's databases because they were in another country. Researchers travel abroad to do research frequently enough that it would be hard to ignore them as a patron group. Copyright concerns across countries are also important to keep in mind. There seem to be many places where licensing could go wrong if you were not aware of the various limitations that potentially come with licensed content.
I found Chapter 6 "Un-Intimidating Negotiations" to be one of the more interesting chapters in the book. Harris strikes a surprisingly positive note in this chapter. She takes a tone that most things are negotiable, even the presumed "non-negotiable" parts of a contract. (I think that what she means is that it never hurts to ask--you probably will get a no, but you might get a yes.) She does acknowledge that "Librarians often feel powerless entering into, and during the process of, negotiating. Content owners like publishers and aggregators seem to have all the money and plenty of potential customers (and therefore power), while librarians often have only limited resources. However in a negotiation, you are seeking an end result that works for both parties" (94). I completely agree with the first sentence there. I imagine that many librarians must look at negotiations as a lost cause--the Elseviers of the world have so much money and power, why would they negotiate in good faith with any library, large or small? Harris makes it seem that with good negotiation, libraries and content providers can get what they want out of any deal. My response is: Really? Then why are libraries up in arms over the mounting cost of digital content? I am sure that libraries can get what they want in a negotiation--eased ILL restriction, unlimited access for any user that walks into the library, global use, etc. I bet that the vendors would be happy to agree to those terms. But at what cost? You can only negotiate so much without it costing more and more. (Or alternatively, lose rights or access so that databases costs less.) Harris's peppy tone belies that fact that it is still very difficult to negotiate an inflated bottom line.
Or have libraries just not been clever enough to negotiate harder? I don't really think that is the case. Libraries want to provide as much access as they can afford to patrons who are entirely ignorant of cost. It really does seem like libraries are stick in between a rock and a hard place when it comes to balancing the needs of patrons while negotiating price and rights with content owners. Maybe I am just too pessimistic and cynical when it comes to discussions about vendors, rights, and cost.
All in all, though, I found Licensing Digital Content to be quite handy in a practical way. I think that I could make use of it if I were ever to find myself in a situation that required licensing digital content.
Wednesday, September 22, 2010
CONFU: No surprise there
So you say that a conference intended to create guidelines for fair use was not successful? That the proposed guidelines did not pass the comment and endorsement process? Get out of town!
I kid, I kid. Kudos to the folks who put this conference together in the first place. Having guidelines for fair use of content is a great idea. I am sure that many people--librarians, educators, artists, content providers of all stripes--would appreciate clearer guidelines. Unfortunately for the CONFU folks, there were several issues already at play. Importantly, the copyright owners and content providers felt like the CONFU guidelines gave away too much, while users felt like the guidelines were too restrictive and that they got too little out of the deal. It seems as though it would be extraordinarily difficult to get people to agree on any terms related to fair use. (I find it hard to imagine almost any negotiations, but I'll get to that more when I discuss Harris's LicensingDigital Content.) Users and content owners are just on such different sides of the spectrum when it comes to using and protecting content. Users, even if they are trying to do right by the content owner by following fair use, are still using (i.e., copying for educational purposes, satirizing, etc.) the content in a way that content owners might not necessarily want. If it were up to the content owners, there might not be fair use at all. If it were up to the users, fair use rights might be greatly expanded.
Those two positions are hard to negotiate (again, which is why it is no surprise that this meeting of the fair use minds ended in failure). But that is why we have government and laws, no? That is why fair use is encoded in statutes, court cases, etc., am I right? Ideally, courts and lawmakers will try to find a reasonable balance between the needs of users and content owners (although this seems hopelessly naïve). Fair use has no "bright line rules."* It is up to the content users and owners to do what they will and duke it out in court if there is a disagreement. This means that no one side will have their needs enshrined in fair use law. The gigantic downside is that you need to go to court to have someone tell you who is right...and now we are back to where the idea for CONFU started, I'm sure. This begs the question of should there be "bright lines" for fair use? I think the answer is no. I think one side would inevitably lose something automatically. CONFU guidelines skirted too close to this notion of laws set in stone, and I think that is why the meeting disintegrated.
CONFU points out there there is a world of disagreement when it comes to fair use standards. For now, users are relegated to using their own (hopefully) good judgment when re-using materials.
*Incidentally, that is one of my favorite phrases learned in library school.
I kid, I kid. Kudos to the folks who put this conference together in the first place. Having guidelines for fair use of content is a great idea. I am sure that many people--librarians, educators, artists, content providers of all stripes--would appreciate clearer guidelines. Unfortunately for the CONFU folks, there were several issues already at play. Importantly, the copyright owners and content providers felt like the CONFU guidelines gave away too much, while users felt like the guidelines were too restrictive and that they got too little out of the deal. It seems as though it would be extraordinarily difficult to get people to agree on any terms related to fair use. (I find it hard to imagine almost any negotiations, but I'll get to that more when I discuss Harris's LicensingDigital Content.) Users and content owners are just on such different sides of the spectrum when it comes to using and protecting content. Users, even if they are trying to do right by the content owner by following fair use, are still using (i.e., copying for educational purposes, satirizing, etc.) the content in a way that content owners might not necessarily want. If it were up to the content owners, there might not be fair use at all. If it were up to the users, fair use rights might be greatly expanded.
Those two positions are hard to negotiate (again, which is why it is no surprise that this meeting of the fair use minds ended in failure). But that is why we have government and laws, no? That is why fair use is encoded in statutes, court cases, etc., am I right? Ideally, courts and lawmakers will try to find a reasonable balance between the needs of users and content owners (although this seems hopelessly naïve). Fair use has no "bright line rules."* It is up to the content users and owners to do what they will and duke it out in court if there is a disagreement. This means that no one side will have their needs enshrined in fair use law. The gigantic downside is that you need to go to court to have someone tell you who is right...and now we are back to where the idea for CONFU started, I'm sure. This begs the question of should there be "bright lines" for fair use? I think the answer is no. I think one side would inevitably lose something automatically. CONFU guidelines skirted too close to this notion of laws set in stone, and I think that is why the meeting disintegrated.
CONFU points out there there is a world of disagreement when it comes to fair use standards. For now, users are relegated to using their own (hopefully) good judgment when re-using materials.
*Incidentally, that is one of my favorite phrases learned in library school.
Electronnic Resource Management and Licensing
Hi there! Welcome to my re-purposed blog, Nerdy/Cool Scale. This blog will collect my thoughts on the readings for LIS 855 Electronic Resource Management and Licensing, held at the School of Library and Information Studies (SLIS) at UW-Madison. We will be covering exciting topics, such as:
- copyright
- licensing (as it pertains to electronic resources)
- e-reserves
- pricing models and consortial arrangements
- distance education
- technological protection measures (digital rights management)
- data standards
- e-books
- perpetual access
- many other nerdy AND cool topics!
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