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Fair use vs. breach of contract (Re: [SERIALST] question about digital serials access) Rick Anderson 24 Aug 2017 15:50 UTC

The problem is that you can’t appeal to fair use as a defense if you’re in breach of a contract. If you’ve signed a license that says “we won’t let walk-in users access the database,” the terms of the license are what govern allowable use, even if the law would otherwise make access legal.

---
Rick Anderson
Assoc. Dean for Collections & Scholarly Communication
Marriott Library, University of Utah
Desk: (801) 587-9989
Cell: (801) 721-1687
rick.anderson@utah.edu

On 8/24/17, 9:32 AM, "Serials in Libraries Discussion Forum on behalf of David P. Dillard" <SERIALST@LISTSERV.NASIG.ORG on behalf of jwne@TEMPLE.EDU> wrote:

>
>
>
>This may be of help in this regard
>
>
>FAIR USE UNDER COPYRIGHT LAW
>
>
>https://sites.google.com/site/fairuseundercopyrightlaw/
>
>
>
>Sincerely,
>David Dillard
>Temple University
>(215) 204 - 4584
>jwne@temple.edu
>
>
>On Thu, 24 Aug 2017, Williams, Ginger wrote:
>
>>
>> No. I highly recommend that you read up on fair use. It’s governed by Section 107 of the Copyright
>> Act, which is designed to protect the rights of copyright holders (i.e., authors and the publishers
>> to whom they’ve assigned rights). Saying “fair use” does not give you a free pass to violate
>> contracts. Instead, you should be arguing to include a fair use clause in your contracts; however,
>> even a fair use clause only provides limited rights. More information on fair use is available at
>> https://www.copyright.gov/fair-use/more-info.html. Please do some reading.
>>
>>
>>
>> Ginger
>>
>>
>>
>> Virginia Kay Williams
>>
>> Head Acquisitions Librarian
>>
>> Texas State University
>>
>> (512)245-3009
>>
>> Vkw11@txstate.edu
>>
>>
>>
>>
>>
>>
>>
>> From: Serials in Libraries Discussion Forum [mailto:SERIALST@LISTSERV.NASIG.ORG] On Behalf Of
>> MSaunders@GALLERY.CA
>> Sent: Thursday, August 24, 2017 8:59 AM
>> To: SERIALST@LISTSERV.NASIG.ORG
>> Subject: Re: [SERIALST] question about digital serials access
>>
>>
>>
>> These agreements were set up by these companies to protect their profits. If someone uses a resource
>> and no one is profiting from it besides the publisher, wouldn’t that be considered fair use?
>>
>>
>>
>> From: Serials in Libraries Discussion Forum [mailto:SERIALST@LISTSERV.NASIG.ORG] On Behalf Of Judith
>> Koveleskie
>> Sent: August-24-17 9:31 AM
>> To: SERIALST@LISTSERV.NASIG.ORG
>> Subject: Re: [SERIALST] question about digital serials access
>>
>>
>>
>> Yes.  Absolutely wrong.
>>
>>
>> Judith A. Koveleskie, Serials Librarian
>> Seton Hill University, Reeves Memorial Library
>> 1 Seton Hill Drive, Greensburg, PA 15601-1548
>> 724-838-7828
>> This document may contain confidential information and is intended solely for the use of the
>> addressee. If you received it in error, please  contact the sender at once and destroy the document.
>> The document may contain information subject to restrictions of the Family Educational Rights and
>> Privacy and the Gramm-Leach-Bliley Acts. Such information may not be disclosed or used in any fashion
>> outside the scope of the service for which you are receiving the information.
>>
>>
>>
>> [uc?export=download&id=0B5sUK8L5L3h8cWpqaW1nYXdFUHc&revid=0B5sUK8L5L3h8SlNQRzJjK1ZubGFPS2phV215Wk0rR
>> EtxU21jPQ]
>>
>>
>>
>> On Thu, Aug 24, 2017 at 9:21 AM, Bell, W Michael <Mike-Bell@utc.edu> wrote:
>>
>> Ethics aside, if you sign a contract you are legally obligated to abide by the agreement.  Ignoring
>> laws or rules you don’t like is more than merely unethical, it’s wrong.
>>
>>
>>
>>
>>
>> From: Serials in Libraries Discussion Forum [mailto:SERIALST@LISTSERV.NASIG.ORG] On Behalf Of
>> MSaunders@GALLERY.CA
>> Sent: Thursday, August 24, 2017 9:16 AM
>> To: SERIALST@LISTSERV.NASIG.ORG
>> Subject: Re: [SERIALST] question about digital serials access
>>
>>
>>
>> Are these publishers really being ethical. Or are they taking advantage?
>>
>>
>>
>> From: Serials in Libraries Discussion Forum [mailto:SERIALST@LISTSERV.NASIG.ORG] On Behalf Of Leslie
>> Burke
>> Sent: August-24-17 9:13 AM
>> To: SERIALST@LISTSERV.NASIG.ORG
>> Subject: Re: [SERIALST] question about digital serials access
>>
>>
>>
>> Ethics?
>>
>>
>>
>> Leslie D. Burke
>>
>> Collection Development & Digital Integration Librarian, Library
>>
>> Kalamazoo College
>>
>> 1200 Academy St
>>
>> Kalamazoo, MI 49006
>>
>> p 269.337.7144
>>
>> f 269.337.7395
>>
>> Leslie.Burke@kzoo.edu
>>
>> More in Four. More in a Lifetime.
>>
>> No one has to do everything, but everyone has to do something – What’s your Green Dot?
>>
>> LinkedIn: www.linkedin.com/in/leslieburke/
>>
>> Twitter: librarygal2go; K’s Library on Facebook: https://www.facebook.com/kalamazoocollegelibrary
>>
>>
>>
>> From: Serials in Libraries Discussion Forum [mailto:SERIALST@LISTSERV.NASIG.ORG] On Behalf Of
>> MSaunders@GALLERY.CA
>> Sent: Thursday, August 24, 2017 9:10 AM
>> To: SERIALST@LISTSERV.NASIG.ORG
>> Subject: Re: [SERIALST] question about digital serials access
>>
>>
>>
>> So, what if you break the rules? Give people access. If it isn’t greatly increasing your user
>> statistics, who’s going to know? Do you think the license police are going to show up? – just saying…
>>
>>
>>
>> From: Serials in Libraries Discussion Forum [mailto:SERIALST@LISTSERV.NASIG.ORG] On Behalf Of Leslie
>> Burke
>> Sent: August-24-17 9:04 AM
>> To: SERIALST@LISTSERV.NASIG.ORG
>> Subject: Re: [SERIALST] question about digital serials access
>>
>>
>>
>> I believe ours is set up that true walk-in guests have access to our resources on guest computers, so
>> they can’t get to institutional things other than public ones. If they are affiliated enough to get a
>> campus ID, then perhaps that would be what qualifies them as an “authorized user” under the terms of
>> the license. I think users can use our free/guest wi-fi which would put them in our IP range, but
>> they wouldn’t be connected to the campus network. The IP authentication however, would presumably
>> still put them in access to our resources, I think, as walk-ins.
>>
>>
>>
>> Leslie D. Burke
>>
>> Collection Development & Digital Integration Librarian, Library
>>
>> Kalamazoo College
>>
>> 1200 Academy St
>>
>> Kalamazoo, MI 49006
>>
>> p 269.337.7144
>>
>> f 269.337.7395
>>
>> Leslie.Burke@kzoo.edu
>>
>> More in Four. More in a Lifetime.
>>
>> No one has to do everything, but everyone has to do something – What’s your Green Dot?
>>
>> LinkedIn: www.linkedin.com/in/leslieburke/
>>
>> Twitter: librarygal2go; K’s Library on Facebook: https://www.facebook.com/kalamazoocollegelibrary
>>
>>
>>
>> From: Serials in Libraries Discussion Forum [mailto:SERIALST@LISTSERV.NASIG.ORG] On Behalf Of Cynthia
>> Harper
>> Sent: Thursday, August 24, 2017 8:57 AM
>> To: SERIALST@LISTSERV.NASIG.ORG
>> Subject: Re: [SERIALST] question about digital serials access
>>
>>
>>
>> So do others here see a problem with allowing access via the campus network on the campus IP
>> addresses to walk-ins?  Or is it typical for the campus network to be unavailable to walk-in users?
>> Is the issue whether licenses permit walk-ins, but define them as only on campus computers?
>>
>>
>>
>> Cindy
>>
>>
>>
>> From: Serials in Libraries Discussion Forum [mailto:SERIALST@LISTSERV.NASIG.ORG] On Behalf Of
>> Fastmail
>> Sent: Wednesday, August 23, 2017 9:35 PM
>> To: SERIALST@LISTSERV.NASIG.ORG
>> Subject: Re: [SERIALST] question about digital serials access
>>
>>
>>
>> Dear Michael,
>>
>> Thank you for your specific and detailed reply! This is enormously helpful. Do you think that a very
>> large university like Yale could offer a limited number of visitor cards, them call those users
>> “university affiliates” and allow them to access eresources from their own computers? My primary
>> interest is coming up with a realistic proposal (for a school project) that might eliminate the
>> inefficiency created by requiring that visiting scholar bring their own laptops and use eduRoam to
>> get a computer anywhere near special collections or comfortable seating, but then requiring that they
>> log in to a “home” library account to add money to that account in order to use a scanner or copier
>> (which is, of course, very expensive). Heaven forbid they want to print anything—that would require
>> using a separate computer belonging to the library. My understanding is that archives and special
>> collections the world over end up with people taking photographs with digital cameras, and when
>> that’s an easier solution, something is very wrong.
>>
>>
>>
>> I hope that makes some sense; librarians end up losing a lot of time to explaining an unnecessarily
>> difficult process, when you add it all up over the course of a year. As you say, the number of users
>> who visit is not large, compared to the total (students + faculty), and as long as they are have come
>> all the way to Yale to access its vast collections, it seems to me that there ought to be some way to
>> offer access to the ridiculous digital resources as well, especially given that Sterling Library is
>> moving towards an all-digital journal collection. I would limit this to users who are on campus, but
>> I do dream of allowing them to use their own computers. Do you think that’s at all realistic? Again,
>> I am sorry if this is obvious, but I have just begun my education.
>>
>>
>>
>> Thanks again,
>>
>> Anne-Marie
>>
>>
>> Anne-Marie Lindsey
>>
>> Library Science and Information Management
>>
>> iSchool at Syracuse University
>>
>>
>> On Aug 23, 2017, 12:34 PM -0400, Rodriguez, Michael <michael.a.rodriguez@UCONN.EDU>, wrote:
>>
>>       Hi Lindsey,
>>
>>
>>
>>       Once contractually permitted, alumni access privileges to eresources are easy to
>>       configure in EZproxy as long as the alumni category is clearly defined and consistently
>>       used in your university’s identity management system (typically CAS and/or LDAP). What
>>       our EZproxy service does at UConn, is query CAS to confirm that the user’s NetID is valid
>>       and then query LDAP to make sure that the NetID does not match one of the prohibited
>>       categories. We maintain separate LDAP categories for affiliated users and for alumni. We
>>       have a resource block in our Ezproxy configuration that prohibits affiliated user access
>>       to specific eresources. One of my long-term projects is to identify eresources whose
>>       licenses already permit alumni access (e.g., Project Muse) and then configure EZproxy to
>>       allow alumni access specifically to those eresources, which, again, EZproxy can do easily
>>       given a good university infrastructure.
>>
>>
>>
>>       Regarding licensing that permits affiliate and alumni, the LIBLICENSE Model License has
>>       excellent language specifically authorizing access by visiting scholars and independent
>>       contractors, as well as a nice flexible clause authorizing “any valid ID-holders,” which
>>       could be readily interpreted as meaning anyone with valid university credentials. But
>>       most vendors are very wary of extending access to alumni—understandably so—and you’d
>>       probably get legal pushback and/or price increases from most vendors if you attempted to
>>       interpret a license so as to extend alumni access. However, most of UConn’s eresource
>>       licenses explicitly permit access for “university affiliates,” who after all constitute a
>>       tiny, tiny fraction of our total FTE.
>>
>>
>>
>>       At my prevous organization, alumni access to eresources was funded out of the Alumni
>>       Association’s budget.
>>
>>
>>
>>       That may be garbled, but I hope it helps!
>>
>>
>>
>>       Regards,
>>
>>
>>
>>       Michael Rodriguez
>>
>>       Licensing/Acquisitions Librarian
>>
>>       University of Connecticut
>>
>>       369 Fairfield Way U-1005B | Storrs, CT 06269
>>
>>       michael.a.rodriguez@uconn.edu | 860-486-9325
>>
>>
>>
>>       From: Serials in Libraries Discussion Forum [mailto:SERIALST@LISTSERV.NASIG.ORG] On
>>       Behalf Of Melissa Belvadi
>>       Sent: Wednesday, August 23, 2017 11:30 AM
>>       To: SERIALST@LISTSERV.NASIG.ORG
>>       Subject: Re: [SERIALST] question about digital serials access
>>
>>
>>
>>       ​Start reading license agreements. Most explicitly deny this, some charge extra for it
>>       (whose budget would that come out of). It's not a technical/logistical issue, but a
>>       contractual one, and you have to analyze contract by contract AND then figure out how to
>>       provide that remote access to only the ones that are allowed and not the rest.  We tried
>>       this once and ended up setting up a second ezproxy server to handle it.  The project
>>       basically failed because the alumns who wanted access didn't want what we could provide
>>       but just the more expensive journals whose vendors would not allow alum access at all.​
>>
>>
>>
>> Melissa
>>
>>
>>
>> On Wed, Aug 23, 2017 at 11:58 AM, Fastmail <amlindsey@fastmail.com> wrote:
>>
>>       Hello everyone,
>>
>>       I am in my first term at the iSchool at Syracuse, so do forgive me if this question
>>       is naïve. I would like to know if it is possible to give unaffiliated users access
>>       to electronic serials at a very large academic library?
>>
>>
>>
>> I want to research the practicalities of implementing, for unaffiliated users such as
>> visiting scholars, a system similar to the alumni library cards universities like
>> Columbia and Yale have in place. I am an alumna of Barnard College, so I have friends
>> with Columbia library cards, and I live in New Haven with friends who work at Yale
>> Libraries, so I am also aware of Yale’s policies. Would it be possible to offer a paid
>> library card system for unaffiliated users that would also offer access to electronic
>> journals? Perhaps a limited number of these, to assure only a specific and measurable
>> increase in users to subscription serials? I am thinking specifically of a university
>> like Yale, where these cards and their users would constitute a very small number,
>> compared to the total number of users. My professor fears that vendors would not consider
>> this idea to be at all appealing, and would reject it out of hand. She suggested that I
>> contact members of this list, as you are the experts!
>>
>>
>>
>> Any ideas or suggestions would be incredibly helpful! I am at a stage in my research
>> where I can be very flexible, so please send anything and everything my way.
>>
>>
>>
>> Thanks in advance,
>>
>> Anne-Marie
>>
>>
>> Anne-Marie Lindsey
>>
>> Library Science and Information Management
>>
>> iSchool at Syracuse University
>>
>>
>>
>>
>>
>>
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>>
>>
>>
>>
>> --
>>
>> Melissa Belvadi
>>
>> Collections Librarian
>>
>> University of Prince Edward Island
>>
>> mbelvadi@upei.ca 902-566-0581
>>
>>
>>
>>
>>
>>
>>
>>
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