Re[2]: We have met the enemy...

[irockwood@ala-choice.org]

     While continuing to hope-and believe-that the ChoiceReviews.online 
     license will some day be mentioned on this list in a more approving 
     context, I'd like, if I might, to respond to Rick Anderson's original 
     remarks that launched this particular discussion. CHOICE is clearly a 
     special case in the publisher/library world. With a little luck, a 
     recap of our situation-how it evolved, and where we hope it will 
     go-will be both interesting in and of itself and useful as a stimulus 
     for additional discussion.
     
     To begin at the beginning, the current ChoiceReviews.online license 
     does, in fact, contain one of those "Dreaded Indemnification" clauses. 
     And without necessarily agreeing with all of Rick's assumptions, I 
     would have to concede that this particular clause probably is, from 
     the perspective of many subscribers to this list, a "pretty awful one 
     at that". All of which is to say that the CHOICE staff realizes the 
     current CRO indemnification clause is not ideal from a library 
     perspective. 
     
     In the drafting of the current agreement, there was a great deal of 
     give and take between CHOICE, ACRL, ALA, and ALA legal. The end 
     product was necessarily a compromise, but one that has a number of 
     redeeming features. As noted in last year's discussion on this list, 
     the current CRO license is relatively short, extremely clear, and 
     quite generous with respect to permitted uses, all at our request. It 
     also contains no "venue" clause-another item we specifically requested 
     and received. We did not fare so well with respect to the current 
     indemnification language which reflects the preferences of ALA legal 
     rather more than the CHOICE staff. 
     
     On balance, however, the current agreement has proven serviceable. As 
     of this writing, approximately 275 libraries have subscribed to 
     ChoiceReviews.online, and we are adding additional customers at a rate 
     of approximately 25 per month. Not very many of the customers who have 
     signed up to date have expressed great concern about the current 
     license. When this does occur, we are, as I indicated in last year's 
     discussion on this list, eager and willing to negotiate. Negotiations 
     have been infrequent to date however. We recently completed a study of 
     our experience through January. Of the 141 subscribers involved, only 
     6 requested any change in the indemnification provision. In all 6 
     cases, we were quickly able to agree on a modified version that 
     satisfied both parties. 
     
     What is the bottom line here? Well, for one thing, I would have to 
     agree that the current CRO license is not perfect. We hope, and 
     expect, to modify it over time. But in the meantime, the current draft 
     is a) not all terrible, and b) has proven workable thus far. In fact, 
     I am, as of this writing, unaware of a single case in which the 
     current license has prevented someone from subscribing to 
     ChoiceReviews.online. I do not take this as an endorsement of the 
     current license. That would be going too far. Nor can I guarantee that 
     there is no one out there who, having read the current license, has 
     decided not to subscribe. That would be regrettable in my view, but it 
     is possible. To those individuals and institutions I can only say, as 
     I said last year at this time, talk to us. So far, no one who has done 
     so has gone away empty-handed. 
     
     Having put that plea on the table, let me conclude with some more 
     general remarks about the origins of publisher licensing agreements. 
     The first, which is probably obvious but bears repeating even so, is 
     that publishing staff do not draft licenses; lawyers do. Left to their 
     own devices, what most publishers want from a license is the same 
     thing most subscribers want-a minimum of hassles. Publishing is a 
     terribly labor-intensive occupation. (One of the best known studies of 
     the industry, Kadushin et al's Books: The Culture and Commerce of 
     Publishing described publishing as one of the "greedy professions"-and 
     they were not talking about money.) The last thing most editors, 
     marketing staff, and customer service people need is to add one more 
     time consuming task-like haggling over license provisions-to their 
     daily workload. They don't have the time, and they aren't going to get 
     additional staff. (There are far more similarities than differences in 
     the typical staffing situation in most libraries and most publishing 
     houses today.) So what most publishing staff want is the most hassle 
     free agreement possible that does what it needs to do. 
     
     This, of course, is where the lawyers come in, for it is the lawyers 
     who help determine what it is that the license needs to do. It would 
     be easy, in fact, simply to stop here and blame the whole current mess 
     on lawyers. Still, that wouldn't be fair. The truth is, what most 
     lawyers try to do is exactly what they're paid to do-protect their 
     clients. And in order to do this, they necessarily worry not about the 
     "normal" cases but the "extreme" ones. In drafting things like 
     indemnification clauses-a standard feature of contracts worldwide-they 
     do not ask themselves, "How will a typical customer/subscriber use 
     this product"? Rather, they ask, "How might someone who was out to 
     deliberately damage my client-a real crazy-abuse this product?" "What 
     could such a person do, and what legal tools do I have with which to 
     protect my client in the event we have to go to court-or better yet to 
     deter anyone from even making the attempt?" Lawyers get paid to think 
     this way, and that's what they do. The results are fairly predictable, 
     even understandable. Also ubiquitous, as anyone who has ever actually 
     read their mortgage, lease, or credit card agreement will surely 
     recognize. 
     
     All of which is to say that the current CRO license-including the 
     Dreaded Indemnification clause-has been shaped, much like any other 
     publishing license, by conventional legal concerns. Furthermore, once 
     you ask the lawyer's question-What could a crazy person do with this 
     product to damage my client, i.e. ALA?-the concerns involved make a 
     bit more sense. For in truth, there are no technical barriers that 
     would prevent someone who obtains access to ChoiceReviews.online for 
     the deliberate purpose of damaging ALA and CHOICE from making the 
     attempt. A CRO subscriber has access to a database containing every 
     CHOICE review published since 1988. It wouldn't be easy to download 
     the entire database, but it is technically possible. (And it will only 
     get easier with later versions of the product.) It would be harder 
     still to resell this material without eventually being found out, but 
     a bold or irresponsible person might figure that he (or she) could 
     pull it off. How likely is all this? Not very in my personal 
     estimation, but that's not the point. The point is that this kind of 
     commonsensical argument doesn't necessarily carry a lot of weight with 
     lawyers. They have a different perspective, one that makes 
     professional sense to them, and that often decisively influences their 
     choice of language when drafting legal agreements-particularly in 
     relatively new and uncharted areas like electronic publishing. Which 
     may, or may not, explain how and why we are where we are in the brave 
     new world of electronic licensing.
     
     And with that, having gone on far too long, I will stop.
     
     Irving E. Rockwood
     Editor & Publisher
     CHOICE
     100 Riverview Center
     Middletown, CT 06457
     (860) 347-6933
     (860) 704-0465
     irockwood@ala-choice.org
     

______________________________ Reply Separator _________________________________
Subject: Re: We have met the enemy... 
Author:  <liblicense-l@lists.yale.edu> at INTERNET
Date:    5/23/2000 5:25 PM


John Cox is right... Fear is the underlying driving force for many of us 
who have had financial responsibility for launching electronic journals. I 
should have stated it as fear of loss of revenue in the new and untried 
arena of electronic journals which drives many of us. In this new arena, 
in which we are all still experimenting to find things that work, lawyers 
are often not helpful.
     
When we at the American Astronomical Society set out to develop our 
license in 1995, we held extensive discussions with the library community 
(including Ann Okerson, than you Ann). We wanted to avoid burdensome 
restrictions and make it easy to start using the electronic journals. It 
was our publisher's lawyers who wanted us to insert all kinds of 
restrictive provisions, even though we owned the journal. We prevailed in 
the end, saying that we were willing to take any risks involved in keeping 
the license simple.
     
It was the feedback from our library community, who assured us that they 
would continue to subscribe in paper, which gave us the necessary 
confidence to approach these negotiations with a sufficient lack of fear 
that we could make a sensible license. These discussions between us 
(publishers and librarians) had the tone of mutual collaborative partners 
in the information chain trying to find the best ways to make the most 
effective use of the new electronic environment. In fact, coming up with a 
simple, mutually acceptable license was an enjoyable exercise which 
strengthened the bond between us and our library community. Knowing this 
was a time for experimentation, we were willing to start with simple terms 
and to rely upon the libraries not to abuse the new capabilities. In 
retrospect, our move to electronic publishing has not been particularly 
risky, certainly not as risky as it seemed at the time.
     
As for John Cox missing the Pogo reference, I don't suppose the Chauncey 
M.  Depew* ever made it across the Atlantic...
     
Cheers,
--Peter--
     
* The name of Pogo's rickety boat in which he traversed the swamp, went 
fishing, etc.
_________________________________________________________
Peter B. Boyce    -   Senior Consultant for Electronic Publishing, AAS 
email: pboyce@aas.org
Summer address:                                Winter: 4109 Emery Place, 
33 York St., Nantucket, MA 02554        Washington, DC 20016
Phone:  508-228-9062                           202-244-2473 
_________________________________________________________