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760 pages
6" x 9"
Softcover
ISBN-13: 978-1-55570-610-4
Year Published: 2013
Read a sample of the book now!
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 Amazon.com 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
Table of Contents
Series Editor’s Foreword xiii Preface xv Acknowledgments xxv
PART I BEFORE YOU READ THE LICENSE: ESSENTIAL BACKGROUND CONCEPTS
1 The Information Acquisition Landscape Today 3 Basic Concepts: Contract, License, and Copyright 3 Private Ordering of Contracts versus Public Ordering of Copyright 5 Copyright Law and Understanding Licenses 6 Understanding the License-Contract Dichotomy and the First-Sale Doctrine 10 The Potential Impact of Recent Litigation 12 A Brief Word Regarding Court Decisions 15 Endnotes 16
2 Basic Contract Law Concepts 27 Applicable Law 27 The Offer 29 Receiving an Invitation to Bargain versus Receiving an Offer 29 The Rule for Advertisements 30 Unsolicited Merchandise and the Library Collection 32 Application of Contract Concepts to Instructor “Review Copies” 40 The End of the Power to Accept 49 Counteroffers and the End of the Power to Accept 50 Conditional Acceptance and the End of the Power to Accept 52 Additional Terms 53 The Library as Merchant 57 Revocation of the Offer (by the Offeror) 58 Acceptance by the Offeree and the Complication of Cross-Communications: Rejection 59 Repudiation by the Offeree (as Opposed to Revocation of the Offer by the Offeror) 63 Consideration 63 Interpretation of Contracts and the Concept of Parol Evidence 64 Application of Basic Contract Law Principles: Examples from the Book World of Publishers, Libraries, and Educational Entities 67 Summary Points 68 Learning Examples 70 Endnotes 72
3 Contract Formation and Enforceability 97 Indefiniteness 98 Mistake 99 Misrepresentation, Nondisclosure, Duress, and Undue Influence 101 Oral Contracts and the Statute of Frauds: When Contracts Must Be in Writing 106 Lack of Capacity 107 Impossibility 108 Performance, Conditions, Breach, and Remedies (Damages) 109 Summary Points 128 Learning Examples 129 Endnotes 131
4 Broader Legal and Policy Issues in Licensing 147 Public Policy, Unconscionability, and Contracts of Adhesion in License Agreements 148 Copyright Misuse and Licensing Information Content 161 The Doctrine of Copyright Preemption and Its Impact on Licensing 170 When Is a License Not a License? Recharacterizing Licenses as Sales and the Practical Effect of the First-Sale Doctrine 178 Summary Points 192 Learning Examples 193 Endnotes 195
PART II THE RANGE AND NATURE OF INFORMATION RESOURCE LICENSES THAT 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 230 Uniform Electronic Transactions Act 232 The Impact of ESIGN and UETA in Practice 236 Summary Points 238 Learning Examples 238 Endnotes 239
6 Negotiated and Nonnegotiated Licenses 247 Advantages and Disadvantages of Nonnegotiated Licenses 248 Summary Points 250 Learning Examples 251 Endnotes 251
7 Shrink-Wrap, Click-Wrap, and Browse-Wrap Licenses 253 Shrink-Wrap and Click-Wrap 253 Browse-Wrap (Online) 256 Summary Points 268 Learning Examples 268 Endnotes 269
8 End User License Agreements (Websites) 279 What Is an End User License Agreement? 279 The Legal Theory Protecting Websites and the Validity of Website EULAs 283 Summary Points 290 Learning Examples 290 Endnotes 291
9 General Public Licenses, Open Source Agreements, and Creative Commons Agreements 299 Open Source and Creative Commons Licenses 301 Goals of Creative Commons Licensing 302 Understanding the Creative Commons Schema and Its Potential Impact 305 The Legality (Validity) of Creative Commons Licenses 308 Understanding the General Public License 311 The Legal Status of the GPL and Other Open Source Software 314 The Lesser GPL 317 Summary Points 318 Learning Examples 319 Endnotes 319
10 Basic Music and Media Licenses 337 Mechanical Licenses 339 Performance Rights and Statutory Exceptions 340 Synchronization Rights 340 Sound Recordings 343 Dramatic Performances and Grand Rights 344 Review: Performing a Musical Work in the Library 354 Review: Performing Recorded Music (Musical Work Embodied in a Sound Recording) in the Library 355 Review: Performing and Transmitting a Dramatic Work (Literary or Musical) in the Library 356 Summary Points 356 Learning Examples 357 Endnotes 358
11 The Uniform Computer Information Transactions Act 365 Licensing on Steroids 365 UCITA and the Modern License for Information Content and Services 369 Summary Points 372 Learning Examples 372 Endnotes 372
12 The Developing Law of Implied Licenses 377 Understanding the Concept of Implied License 378 The Developing Law of Implied License in the Courts 380 The Internet, Courts, and Implied License 381 Summary Points 385 Learning Examples 385 Endnotes 385
13 The Future Look of Licenses 389 What Is the Future of Licensing? 390 Endnotes 392
PART III A LICENSING REFERENCE TOOLKIT FOR EVERYDAY USE
14 A Basic Licensing Glossary 397 Arbitration 398 Archive (Perpetual Access) 399 Archiving 400 Assent 403 Assignment or Assignability 405 Authority 406 Authorized Users 406 Authorized Uses: Permitted, Rights Granted 413 Bankruptcy 418 Best or Reasonable Efforts 420 Bibliographies, Use of Content in Compilation of 422 Breach 423 Circumvention 423 Commercial Use 424 Confidential Information or Nondisclosure 425 Consideration 427 Content Licensed 427 Copyright: Library Rights under the Copyright Law (Sections 108, 109, and 110) 431 Course Packs 432 Credit 436 Cure, Right to 437 Currency 439 Customer Support 439 Damages 440 Days: Business, Calendar, or Otherwise 441 Definitions 442 Derivative Uses 443 Disclaimers 444 Downtime and Maintenance 446 Enforcement 448 Errors, Loss of Service, or Other Fulfillment Issues 453 Exclusive versus Nonexclusive Rights 454 Fair Use 454 Force Majeure 456 Forum: Choice of or Selection; Identification of Specific Court (State and Federal) 458 Grant of Rights 459 Headings 460 Impossible Terms 460 Incorporation and Resulting Ownership of Content by Licensor 463 Indemnity and Limitation of Liability 463 Interlibrary Loan 466 Intranet Posting and Other Internal Uses 470 Law, Choice of 471 Look and Feel Protections 472 Merger or Integration Clause 472 Monitoring 473 Notice, When Effective 474 Notice of Changes to Terms 475 Notice of Copyright or Other Warnings and Attributions 475 Performance Testing 476 Prohibited Uses 476 Proprietary Rights 478 Recitals, the “Whereas” Clauses 480 Remedies Other Than Damages 481 Remote Access 482 Renewal 483 Reservation Clauses 485 Schedules 486 Self-Help 486 Severability 486 Signatures and Seal 487 Sublicense or Transfer 488 Survivability of Certain Contract Provisions After Termination 489 Technical Support and Documentation 490 Termination Rights 490 Terms, Changes to 493 Trademarks 494 Warranties and Disclaimers 496 Endnotes 498
15 Four Common Library Licenses Deconstructed 519 The Access NewspaperARCHIVE License Deconstructed 519 The BioOne License Deconstructed 543 The Nature (Academic: Americas) License Deconstructed 573 The Amazon.com Kindle License Deconstructed 618
16 Twenty Sample Key Clauses to Look For in Content Licenses 635 1. Archiving (Incidental) 636 2. Assent 636 3. Assignment 637 4. Authorized Users 637 5. Authorized Uses 637 6. Bona Fide Research 637 7. Change of Content 638 8. Change of Terms, Notice and Termination 638 9. Credit and Refund 638 10. Definitions 639 11. Dissemination of Comment 639 12. Downtime and Maintenance 639 13. Extraction Limits 640 14. Fees 640 15. Force Majeure 641 16. Indemnification 641 17. Notice 642 18. Obligations of the Licensee 642 19. Renewal 643 20. Termination 643
17 Look Before You License: 126 Questions and Answers for Evaluating Licenses 645 Arbitration 645 Archiving (During and Postlicense) 646 Assent 647 Assignment 648 Authority 649 Authorized Users 649 Authorized Uses 651 Breach, Remedy, and Right to Cure 654 Change of Terms 655 Choice of Law, Choice of Forum 656 Compliance Obligations . . . and the Impact on Patron Privacy 657 Consideration 659 Content 660 Credit and Refund 661 Currency 662 Customer Support 662 Damages 662 Definitions 663 Destruction of Content, Postsubscription Period 664 Disclaimers 665 Downtime or Maintenance 666 Fees 668 Force Majeure 669 Headings 671 Indemnification 671 Integration 672 Notice: Mechanism, When Effective 672 Prohibited Uses, Restriction on Other Rights 673 Renewal, Nonrenewal (Expiration) 675 Severability (of “Offending” Provisions) and Survivability (of the Agreement) 675 Suspension 676 Termination (and Cancellation) Rights and Obligations 676 Waivers 678 Warranties 678 Endnotes 679
Case Index 681 Subject Index 691 About the Author 733
About the Author
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.
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