The Librarian's Legal Companion for Licensing Information Resources and Services

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Legal expert Lipinski offers a definitive sourcebook for information licensing in libraries, including copyright and contract matters, general contract law concepts, developments in online and information contracting; and the advantages and disadvantages of licensing. Readers will find clear guidance on deciphering the legalese in agreements, advice on negotiating or countering provisions with library-friendly alternatives, and detailed explanations of specific licenses as well as a discussion of issues regarding online and information contracting. Additionally, three special sections provide valuable information in an easy-to-reference format:

  • Deconstructions of four common license agreements: Access Newspaper Archive, BioOne, Nature Academic, and Kindle
  • Answers to 126 questions about specific licensing agreements, plus a glossary, checklist and review tool for evaluating a license agreement
  • 20 key issues in licensing agreements, accompanied by sample clauses

You'll save time, money, and unnecessary stress by putting the law on your side with this all-in-one guide to buying and licensing agreements.


Series Editor's Foreword xiiiPreface xvAcknowledgments xxv


Basic Concepts: Contract, License, and Copyright 3Private Ordering of Contracts versus Public Ordering of Copyright 5Copyright Law and Understanding Licenses 6Understanding the License-Contract Dichotomy and the First-Sale Doctrine 10The Potential Impact of Recent Litigation 12A Brief Word Regarding Court Decisions 15Endnotes 16

 2 Basic Contract Law Concepts 27

Applicable Law 27The Offer 29Receiving an Invitation to Bargain versus Receiving an Offer 29The Rule for Advertisements 30Unsolicited Merchandise and the Library Collection 32Application of Contract Concepts to Instructor "Review Copies" 40The End of the Power to Accept 49Counteroffers and the End of the Power to Accept 50Conditional Acceptance and the End of the Power to Accept 52Additional Terms 53The Library as Merchant 57Revocation of the Offer (by the Offeror) 58Acceptance by the Offeree and the Complication of Cross-Communications: Rejection 59Repudiation by the Offeree (as Opposed to Revocation of the Offer by the Offeror) 63Consideration 63Interpretation of Contracts and the Concept of Parol Evidence 64Application of Basic Contract Law Principles: Examples from the Book World of Publishers, Libraries, and Educational Entities 67Summary Points 68Learning Examples 70Endnotes 72

 3 Contract Formation and Enforceability 97

Indefiniteness 98Mistake 99Misrepresentation, Nondisclosure, Duress, and Undue Influence 101Oral Contracts and the Statute of Frauds: When Contracts Must Be in Writing 106Lack of Capacity 107Impossibility 108Performance, Conditions, Breach, and Remedies (Damages) 109Summary Points 128Learning Examples 129Endnotes 131

 4 Broader Legal and Policy Issues in Licensing 147

Public Policy, Unconscionability, and Contracts of Adhesion in License Agreements 148Copyright Misuse and Licensing Information Content 161The Doctrine of Copyright Preemption and Its Impact on Licensing 170When Is a License Not a License? Recharacterizing Licenses as Sales and the Practical Effect of the First-Sale Doctrine 178Summary Points 192Learning Examples 193Endnotes 195

 PART IITHE RANGE AND NATURE OFINFORMATION RESOURCE LICENSESTHAT LIBRARIES ENCOUNTER 5 Electronic Signatures in Global and National Commerce Act and the Uniform Electronic Transactions Act 229

Electronic Signatures in Global and National Commerce Act 230Uniform Electronic Transactions Act 232The Impact of ESIGN and UETA in Practice 236Summary Points 238Learning Examples 238Endnotes 239

 6 Negotiated and Nonnegotiated Licenses 247

Advantages and Disadvantages of Nonnegotiated Licenses 248Summary Points 250Learning Examples 251Endnotes 251

 7 Shrink-Wrap, Click-Wrap, and Browse-Wrap Licenses 253

Shrink-Wrap and Click-Wrap 253Browse-Wrap (Online) 256Summary Points 268Learning Examples 268Endnotes 269

 8 End User License Agreements (Websites) 279

What Is an End User License Agreement? 279The Legal Theory Protecting Websites and the Validity of Website EULAs 283Summary Points 290Learning Examples 290Endnotes 291

 9 General Public Licenses, Open Source Agreements, and Creative Commons Agreements 299

Open Source and Creative Commons Licenses 301Goals of Creative Commons Licensing 302Understanding the Creative Commons Schema and Its Potential Impact 305The Legality (Validity) of Creative Commons Licenses 308Understanding the General Public License 311The Legal Status of the GPL and Other Open Source Software 314The Lesser GPL 317Summary Points 318Learning Examples 319Endnotes 319

 10 Basic Music and Media Licenses 337

Mechanical Licenses 339Performance Rights and Statutory Exceptions 340Synchronization Rights 340Sound Recordings 343Dramatic Performances and Grand Rights 344Review: Performing a Musical Work in the Library 354Review: Performing Recorded Music (Musical Work Embodied in a Sound Recording) in the Library 355Review: Performing and Transmitting a Dramatic Work (Literary or Musical) in the Library 356Summary Points 356Learning Examples 357Endnotes 358

 11 The Uniform Computer Information Transactions Act 365

Licensing on Steroids 365UCITA and the Modern License for Information Content and Services 369Summary Points 372Learning Examples 372Endnotes 372

 12 The Developing Law of Implied Licenses 377

Understanding the Concept of Implied License 378The Developing Law of Implied License in the Courts 380The Internet, Courts, and Implied License 381Summary Points 385Learning Examples 385Endnotes 385

 13 The Future Look of Licenses 389

What Is the Future of Licensing? 390Endnotes 392


Arbitration 398Archive (Perpetual Access) 399Archiving 400Assent 403Assignment or Assignability 405Authority 406Authorized Users 406Authorized Uses: Permitted, Rights Granted 413Bankruptcy 418Best or Reasonable Efforts 420Bibliographies, Use of Content in Compilation of 422Breach 423Circumvention 423Commercial Use 424Confidential Information or Nondisclosure 425Consideration 427Content Licensed 427Copyright: Library Rights under the Copyright Law (Sections 108, 109, and 110) 431Course Packs 432Credit 436Cure, Right to 437Currency 439Customer Support 439Damages 440Days: Business, Calendar, or Otherwise 441Definitions 442Derivative Uses 443Disclaimers 444Downtime and Maintenance 446Enforcement 448Errors, Loss of Service, or Other Fulfillment Issues 453Exclusive versus Nonexclusive Rights 454Fair Use 454Force Majeure 456 Forum: Choice of or Selection; Identification of Specific Court (State and Federal) 458Grant of Rights 459Headings 460Impossible Terms 460Incorporation and Resulting Ownership of Content by Licensor 463Indemnity and Limitation of Liability 463Interlibrary Loan 466Intranet Posting and Other Internal Uses 470Law, Choice of 471Look and Feel Protections 472Merger or Integration Clause 472Monitoring 473Notice, When Effective 474Notice of Changes to Terms 475Notice of Copyright or Other Warnings and Attributions 475Performance Testing 476Prohibited Uses 476Proprietary Rights 478Recitals, the "Whereas" Clauses 480Remedies Other Than Damages 481Remote Access 482Renewal 483Reservation Clauses 485Schedules 486Self-Help 486Severability 486Signatures and Seal 487Sublicense or Transfer 488Survivability of Certain Contract Provisions After Termination 489Technical Support and Documentation 490Termination Rights 490Terms, Changes to 493Trademarks 494Warranties and Disclaimers 496Endnotes 498

 15 Four Common Library Licenses Deconstructed 519

The Access NewspaperARCHIVE License Deconstructed 519The BioOne License Deconstructed 543The Nature (Academic: Americas) License Deconstructed 573The Kindle License Deconstructed 618

 16 Twenty Sample Key Clauses to Look For in Content Licenses 635

1. Archiving (Incidental) 6362. Assent 6363. Assignment 6374. Authorized Users 6375. Authorized Uses 6376. Bona Fide Research 6377. Change of Content 6388. Change of Terms, Notice and Termination 6389. Credit and Refund 63810. Definitions 63911. Dissemination of Comment 63912. Downtime and Maintenance 63913. Extraction Limits 64014. Fees 64015. Force Majeure 64116. Indemnification 64117. Notice 64218. Obligations of the Licensee 64219. Renewal 64320. Termination 643

 17 Look Before You License: 126 Questions and Answers for Evaluating Licenses 645

Arbitration 645Archiving (During and Postlicense) 646Assent 647Assignment 648Authority 649Authorized Users 649Authorized Uses 651Breach, Remedy, and Right to Cure 654Change of Terms 655Choice of Law, Choice of Forum 656Compliance Obligations . . . and the Impact on Patron Privacy 657Consideration 659Content 660Credit and Refund 661Currency 662Customer Support 662Damages 662Definitions 663Destruction of Content, Postsubscription Period 664Disclaimers 665Downtime or Maintenance 666Fees 668Force Majeure 669Headings 671Indemnification 671Integration 672Notice: Mechanism, When Effective 672Prohibited Uses, Restriction on Other Rights 673Renewal, Nonrenewal (Expiration) 675Severability (of "Offending" Provisions) and Survivability (of the Agreement) 675Suspension 676Termination (and Cancellation) Rights and Obligations 676Waivers 678Warranties 678Endnotes 679


Case Index 681Subject Index 691About the Author 733

Tomas A. Lipinski

Tomas A. Lipinski has worked in a variety of legal settings, including the private, public, and nonprofit sectors. He taught at the American Institute for Paralegal Studies and at Syracuse University College of Law. In summers he is a visiting professor at the Graduate School of Library and Information Science, University of Illinois at Urbana–Champaign. From 1999 to 2003, during summers, he taught at the Department of Information Science, School of Information Technology, at the University of Pretoria, Pretoria, South Africa. Professor Lipinski was the first named member of the Global Law Faculty, Faculty of Law, University of Leuven (Katholieke Universiteit Leuven), Belgium, in fall 2006, where he continues to lecture annually at its Centre for Intellectual Property Rights and Interdisciplinary Centre for Law and ICT. Prior to becoming Executive Associate Dean at Indiana University School of Library and Information Science, in 2011, he was Director of the MLIS program at the School of Information Studies at the University of Wisconsin–Milwaukee. Beginning in January 2013, he will be Director of the School of Library and Information Science, Kent State University in Ohio. Author of The Complete Copyright Liability Handbook for Librarians and Educators, he researches, teaches, publishes, and speaks widely on issues relating to information and Internet law and policy, especially copyright in schools, libraries, and other information settings. He holds a law degree from Marquette University, a master of laws degree from the John Marshall Law School, and a doctorate in library and information science from the University of Illinois at Urbana–Champaign.

"Will prove to be 'the Bible' for librarians— particularly academic librarians—who seek to learn, and navigate, the intricacies of licensing agreements ... His research is comprehensive and impressive, particularly when he cites case law and legal literature as evidence. Best of all, this handbook is useful to readers with multiple levels of experience with licensure—from the novice to the expert, rendering it an invaluable reference tool."
--College & Research Libraries

"Thorough, well researched, thoughtfully written ... Its three-part division makes it useful as a practical reference guide, as a manual of key licensing concepts for librarians working to improve their negotiation skills and knowledge, or as a textbook for a library school course on library management or licensing ... Lipinski's book will be a go-to work on my reference shelf."
--Law Library Journal

"Massive in both size and scope ... this title should be on the shelf of every librarian or administrator who has personal responsibility for e-resources in his or her library or university. It will answer most of your questions and be often consulted."
— Collection Building