The Chronicle: 2/14/2003: The Law Against Sharing Knowledge

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.

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Section: The Chronicle Review
Volume 49, Issue 23, Page B14

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