The Practicality of Managing "E" Part 1: Licensing

Tracy Thompson: Yes, I do have a few suggestions. If you are in a university it is often the case that university counsel will not permit any university department ti enter into any contract that subjects the institutuion to the laws of a foreign jurisdiction.

If counsel will back you up on that issue you can let the vendor know that you are prohibited from signing. Another good tactic when you can't get the vendor to agree to language is to request to strike and remain silent in the agreement.

(TT): Absolutely! Anything that is important to the licensee is fair game. The MLA addresses the issue as it relates to discovery:
b. Discovery of Licensed Materials. Licensor shall make the Licensed Materials available through Licensee’s Discovery Service System(s) for indexing and discovery purposes. Licensor shall provide to Licensee’s discovery service vendors on an ongoing basis the citation and complete descriptive metadata (including all subject headings, abstracts, and keywords), and full-text content necessary to facilitate optimal discovery and accessibility of the content for the benefit of Licensee and Authorized Users. Discovery Service Systems are defined as user interface and search systems for discovering and displaying content from local, database and web-based sources. 

(TT): I advise against referring to or relying on things outside of the "4-corners of the agreement.'" If terms used within the agreement have an agreed definition, that definition should be included in a section of the agreement entitled Definitions. You should avoid what is called "incorporation by reference" which is referring to something outside of the agreement as binding.

Abbie Brown: First, yes, I save all correspondence (email) as a matter of habit, and I often need to refer back to it, even years later. I don’t generally file this with my license agreements, in either hard copy or digitally, but I do make an effort to save older emails in a way that can be accessed and searched when necessary. Second, though, if I was negotiating a license and needed clarification or interpretation of the vendor’s phrasing, language, etc., I would try very hard to get that interpretation spelled out better in the license itself, rather than planning to rely on emails or correspondence to explain it later. If this correspondence takes place later, after the license is signed, then it makes sense that you couldn’t include it in the license, and you’d want to save those emails for reference later if it should come up. But if you’re still in the negotiation stage and you’re having questions about interpretation, it’s better to have that fixed to your satisfaction at that time. 

(TT): Yes, the first is to educate those vendors as they aren't familiar with our needs. Rely on outside resources (existing best practices, standards, guidelines of professional orgs) to make your case, so the vendor knows this isn't just the whim or idiosyncracy of one customer. Also, think about alternate strategies to reach your interest. For example, if they don't offer IP authentication and your user base demands it, perhaps they will agree to letting you host the content on your server for your users.