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The Law Against Sharing Knowledge
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Peter Suber
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Feb 11, 2003 09:05 PST
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[This article from the _Chronicle of Higher Education_ is not among those
available free online to non-subscribers. So here are some excerpts. --Peter]
http://chronicle.com/weekly/v49/i23/23b01401.htm
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.
[...]
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.
[...]
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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Copyright 2003 by The Chronicle of Higher Education
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