[ARSCLIST] CHE: The Law Against Sharing Knowledge

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The Law Against Sharing Knowledge
The Chronicle of Higher Education, 3.2.14
http://chronicle.com/weekly/v49/i23/23b01401.htm

  By EDWARD R. JOHNSON

   I  remember the days when the only licenses that mattered
  were the ones that allowed you to drive, fish and hunt, or get
  married. Today it seems that licensing is taking over the
  world of academic libraries, and putting scholars' ability to
  exchange information at risk. Stories of draconian contract
  terms in licenses from software vendors and the publishers of
  electronic databases and periodical indexes circulate like
  tall tales -- but they are usually true. We will hear even
  more such stories if the state legislatures that are
  considering the Uniform Computer Information Transactions Act,
  or Ucita, adopt it this spring.

  Ucita is a model law, proposed by the National Conference of
  Commissioners on Uniform State Laws, that would set new rules
  in all states for licensing software and every other form of
  digital information. So far, more than 20 states have
  considered it, but only Maryland and Virginia have adopted it.
  Most of the states' attorneys general are on record as
  opposing the law because of its potential for adverse effects
  on consumers: Ucita would enable vendors to restrict
  consumers' rights to read license agreements before accepting
  them, to sue vendors if their products were defective, or to
  donate a product to charity. But the conference amended the
  act last year, and its revised version will probably be
  introduced in many legislatures this year, including those
  that rejected the original version.

  What librarians object to most about Ucita is that it would
  permit software vendors and publishers to impose a wide range
  of terms on academics' use of electronic information -- terms
  that conflict with institutional policies and regulations --
  and that the act would tie our hands in negotiating fair
  licensing agreements. It might even undermine prevailing
  federal copyright laws: While the act's authors insist that it
  would not overturn copyright, they have rejected a proposal
  from several library associations to add wording that clearly
  asserts the pre-eminence of federal copyright law in
  "shrink-wrap licenses."

  Today, many licenses for electronic publications prohibit
  librarians from copying the material, lending it to another
  library, or storing it in an archive. As a university
  librarian, I generally object to such restrictions unless the
  vendor makes a compelling case for them. In the apparent hope
  that librarians won't read the fine print, software vendors
  sometimes include even stricter terms in their licenses. In
  some instances, the language is contrary to state law; in
  other cases, it violates common sense.

  I was shocked, for example, by a license that would have
  required my library to permit the vendor to remotely install
  periodic updates to the software, even though those updates
  might disable other software in our university's computers.
  Such a requirement is obviously unacceptable. Fortunately, the
  vendor was willing to negotiate the terms of the license.

  Another vendor inserted these terms: "Licensee shall notify
  the publisher of any actual, threatened or suspected
  infringement of the copyright or other intellectual property
  rights in any part of the journal or its contents and any
  third party claim that the journal or its contents infringes
  the intellectual property of any other person or party." We
  got that vendor to agree that the library's staff members
  could not realistically prevent "threatened" or "suspected"
  copyright infringement. For our part, we agreed to notify the
  vendor of any actual infringement that we become aware of.

  Nearly all libraries engage in contract negotiations before
  signing license agreements for software, online databases, and
  other information products in digital form. However, we are
  already feeling the chilling effects of restrictive licensing
  terms. With Ucita, our ability to negotiate terms in the
  interest of library users would be weakened. Ucita would tip
  the balance further in the direction of the software vendor,
  while making the terms of mass-market licenses, which
  libraries cannot negotiate, more enforceable by the courts.

  Ucita would replace the public law of copyright with the
  private law of contracts. Under copyright law, a vendor that
  sells copies of information has only limited power to control
  the subsequent use of that information. But a contract under
  Ucita could prevent the user from reading the license in
  advance, reinforcing the vendors' view that opening the
  software box or breaking the shrink-wrap constitutes consent
  to the license's terms. It would extend that view to the
  online environment, making clicking on a virtual button the
  equivalent of opening a physical box.

  By burying restrictions inside a closed box, license
  provisions could also restrict traditional fair use of a
  product by excluding the rights to quote from a work, to copy
  a small portion of a work for personal use, or to use the
  information in a nonprofit, educational setting. Or they could
  prevent a library from lending electronic material or copying
  it for the purpose of archiving or preservation. Software
  vendors seldom consider those activities of libraries when
  they write mass-market licenses.

  When I discuss Ucita with faculty members, students, and
  administrators, my biggest challenge is convincing them that
  it is not an esoteric piece of legislation that would affect
  only someone else. I stress, for instance, that current
  contract law allows software publishers to select the law of
  one of the states that has passed Ucita as the law governing a
  licensing agreement, whether or not the publisher or the
  licensee is located in that state. That means that educational
  institutions in a state that has not enacted Ucita could still
  be subject to its rules. To circumvent the effects of another
  state's enacting Ucita, the legislatures of Iowa, North
  Carolina, and West Virginia have passed laws that override
  Ucita's provisions -- laws that other legislatures might do
  well to copy.

  Librarians have been in the forefront of the opposition to
  Ucita. We are involved in a national coalition
  (http://www.affect.ucita.com) against the law, along with
  consumer advocates, insurance companies, retail and
  manufacturing concerns, and computer professionals. We helped
  persuade legislatures in a number of states to defeat Ucita by
  showing how detrimental its passage would be to libraries,
  universities, businesses, and consumers.

  Our colleagues in higher education should not wait until Ucita
  moves into their states before becoming educated about its
  potential impact. Academics should create partnerships with
  other concerned stakeholders in each state, insisting that our
  universities and professional associations become active in
  opposing the legislation. Ucita poses real threats to our
  traditional rights as scholars, researchers, and teachers. The
  free and unfettered exchange of information that has
  characterized the scholarly communications system for so long
  is in danger.

  Edward R. Johnson is dean of libraries at Oklahoma State
  University.