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The Librarian's Legal Companion for Licensing Information Resources and Services
Tomas A. Lipinski
Item Number: 978-1-55570-610-4
 
Publisher: ALA Neal-Schuman
Price: $130.00
 
 
 
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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
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.
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.
Reviews

"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
 
 

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