Clarification on SERU proposal

["Judy Luther" <judy.luther@informedstrategies.com>]

John,

Thank you for your observations, which the working group will be 
reviewing.

Your legal points expand on the area of contract law that we 
discussed in developing SERU and are helpful as background. And 
you are correct in your observations regarding the creation of a 
contract, albeit without a license; however, we look to a 
different conclusion.

Given that the motivation to streamline the process is based on 
publishers and librarians being comfortable with the level of 
risk, we are not seeking an "unarguable ....contractual 
relationship". Licenses do serve that purpose for those that want 
to use them.

SERU is an option that can relieve publishers/librarians of the 
expense of processing a legal document when they are comfortable 
with the expectations described in SERU. We don't expect SERU to 
apply in all circumstances.

Our approach is to separate the business, legal and use terms 
that are now in a contract. We deliberately set aside the legal 
language (warranties, liabilities, jurisdiction, etc), let the 
purchase order describe the product, price, length of access, and 
reference in SERU expectations related to use and service. These 
are not standards nor guidelines but a reflection of what can be 
considered common by many publishers and librarians.

Judy Luther MLS, MBA
Informed Strategies LLC
judy.luther@informedstrategies.com
  <outbind://203/www.informedstrategies.com> 
_____

Post by John Cox on March 23, 2007

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