RE: Clarification on SERU proposal

["John Cox" <John.E.Cox@btinternet.com>]

To clarify (and, I fear, introduce some murky complexities to) 
the postings made by Judy Luther and Joe Esposito:

Even if there is no formal written agreement signed by both 
parties, a contract exists because a trading relationship exists 
in which goods or services have been provided in exchange for 
money.  There has to be offer and acceptance (i.e. you offer me a 
journal and I buy a license for access to it), consideration 
(i.e. I pay for it) and an intention to create legal relations 
(i.e. both parties expect to be bound by the transaction.  If a 
dispute ever arises, the contract will be implied from the 
conduct of the parties.  Indeed, if there were a written 
contract, but it never got signed, but the services were supplied 
and paid for anyway, that level of "part performance" would 
establish the contract.

So far, so clear.

The SERU guidelines are an admirable attempt to remove the 
time-consuming and expensive process of negotiating the wording 
in a formal written license for electronic scholarly content.

The problem with the draft SERU guidelines 
(http://www.niso.org/committees/SERU/SERUdraft0.3.pdf) as they 
are drafted is that they are rather general, and open to 
different interpretations by different parties.  They also state 
that "neither this statement nor this document constitute a 
license agreement".  It is therefore possible to argue that using 
the guidelines is not intended to create legal relations, and 
therefore they form no part of the contract that would exist. 
The contractual relationship then defaults to the conduct of the 
parties.  Oh dear.  The SERU guidelines need to be much clearer 
about setting a set of standards, or rights and obligations, that 
CAN be unarguable incorporated into a contractual relationship.

As Sam Goldwyn said, a verbal contract is only as good as the 
paper that it is written on.

John Cox

Managing Director
John Cox Associates Ltd
Rookwood, Bradden
TOWCESTER, Northants NN12 8ED
United Kingdom
E-mail: John.E.Cox@btinternet.com
Web: www.johncoxassociates.com

-----Original Message-----
[mailto:owner-liblicense-l@lists.yale.edu] On Behalf Of Joseph J.
Esposito
Sent: 22 March 2007 22:23
To: liblicense-l@lists.yale.edu
Subject: Re: Clarification on SERU proposal

Judy:

Thank you for your note, but it hasn't answered my question, 
which admittedly may be based on my utter legal ignorance.

My understanding is that even if there is not a signed hardcopy 
document, there is still a license:  a binding agreement 
concerning the terms of use for intellectual property.  What I am 
puzzled by is the phrasing of the announcement of SERU.  It seems 
to me that SERU does not eliminate licenses. Rather, it 
eliminates a hardcopy document, but the license (the binding 
agreement) is simply codified as terms of use.

If I am correct in this analysis (and I really wish a lawyer 
would jump in here and explain how this works), then saying that 
SERU does not involve a license is misleading.  There are still 
obligations for both parties, which are enforceable under law.

Joe Esposito