Re: Clarification on SERU proposal

[Karl Bridges <Karl.Bridges@uvm.edu>]

Let me ask a question (and this may be stupid but): We all spend 
a great deal of time dealing with licensing and contracts for 
e-resources -- which is why people want a SERU -- to save time.

How often is a contract enforced?  In the total universe of 
licenses that are created each year what percentage are violated 
(on either side) to the extent that the other party feels 
obligated to enforce it?

I understand why lawyers require them and why libraries want 
them.  I'm just curious how often they're actually needed.  If it 
turns out that they're only needed 1 percent of the time that 
might be a good argument for doing something else.

I've wondered why we don't simply replace licenses and copyright 
with insurance.  If you spend thousands of dollars on a database 
you'd buy a policy that would protect you if someone did 
something that harmed you (and the insurance company could then 
sue to recover their payout) On the other hand, if you didn't 
care you could simply not buy a policy and let people do what 
they want.  If you wrote a book you (or your publisher) might buy 
a policy for the first ten years to protect the investment. In 
ten years when your book is out of print and no one is making a 
profit you might drop the policy or move to one with a higher 
deductible -- since your risk is now lower.  I care this year 
that someone does something to my new book.  I care less in 
twenty years what someone does to it. If I had a "high risk" item 
-- say my latest rock album that I expect to sell a million 
copies -- I would pay more -- with appropriate deductions for 
taking steps -- like digital rights management -- to reduce 
piracy.

We have a fairly good system of assessing risk etc for insurance 
with physical property.  Why couldn't that work with electronic 
property? And it would also reduce the legal costs for companies 
because they wouldn't have to be suing individuals -- that would 
be the insurance companies' problem -- sort of like with an 
uninsured motorist claim.  The price of the insurance could then 
be factored in the price of the product -- increases probably(??) 
offset by reductions in costs for negotiating licenses, paying 
lawyers, saving time.

Karl Bridges
University of Vermont

Quoting Karla Hahn <karla@arl.org>:

> Just to clarify further, the working group members have been quite
> concerned about the legal implications of this project from its
> inception and we're glad the community is cautious about these issues.
> Caveat emptor, after all.
>
> As Judy notes, two members of the current working group have J.D.
> degrees and additionally the working group has been showing drafts to
> other lawyers for several months now. We do welcome further opinions
> from legal experts.
>
> As the list members know, absolute consensus on legal points can be
> difficult to achieve; however, we have been told repeatedly that the
> SERU approach is practicable from a legal standpoint, if not
> necessarily universally appealing to attorneys.
>
> Best regards,
>
> Karla Hahn, Director
> Office of Scholarly Communications
> Association of Research Libraries
> Washington, D.C. 20036
> email: karla@arl.org