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There are Terms of Service and Terms of Service, If You Know What I Mean

There’s a rather fascinating discussion happening these days around licensed content. I mean, it’s technically about using Netflix to extend the library’s collection, but it’s actually about licensing and terms of service and to what extent it’s our professional duty to enforce the letter of the law or, on the flip side, push at the boundaries a little in hopes of effecting change.

I wonder if the conversation would be different if we were talking about some other kind of Terms of Service. It strikes me that we see easy analogies between streaming video and the kinds of content we’ve shepherded since forever even though streaming video is really quite new, and so professional debates that we’ve had about everything from closed stacks to copyright to food in the library all rally around to reinforce the Respect The Content side of the debate, the side that is really quite uncomfortable with the idea of lending these DVDs without explicit permission in the form of a license.

Then there are the Terms of Service that come with tools or platforms rather than content. When those are wacky (or if we read them at all) it seems far more likely that we’ll cry foul and raise our pitchforks at the vendor who created such inhumane and restrictive licenses. Is this because there isn’t an easy analogy with our traditional responsibilities since the days of clay tablets? Or is it because using tools and platforms seems like an easier analogy to the other major piece of our work: the piece that protects our patrons right to do their own thing with whatever content we can (legally) provide? Or is it because it’s easier to tell people they can’t do something than it is to be told we can’t do something?

I think the Netflix thing will work itself out one way or the other pretty soon (probably when Netflix creates a new license). I don’t think the problem of navigating licenses is going away in the foreseeable future.

P.S. The backstory

5 thoughts on “There are Terms of Service and Terms of Service, If You Know What I Mean

  1. My place of work has a very prosaic reason for obeying all licenses and terms of service agreements – it would be a waste of taxpayer dollars to become embroiled in a lawsuit (regardless of what our chances are of winning). We do discuss the terms of the various agreements with vendors if they concern us but once we pay / sign – we obey. To do otherwise is to simply be foolish. The taxpayers expect us to use their money to pay for materials and services – not legal adventures.

  2. Pingback: Librarians and Integrity « 21st Century Library Blog

  3. I agree with GeekChic that lawsuits are a stront disincentive to try this sort of service without clear licensing guidelines. However, I also agree that we need to be creating certain conversations with content providers, to experiment with boundaries and find a good balance of provision and profit. There has to be a way.

  4. Yes, and I should clarify that I think it’s a decent idea to honor license agreements and to negotiate for better ones at every opportunity. But here I’m mostly interested in the primary direction of the emotion in the two kinds of examples. In one case the outrage is directed at those who break the license, and in the other it’s directed at the vendor. Not that there’s not a lot of overlap of outrage, of course. Just that sometimes it feels to me like the balance is tipped a little bit in one direction and sometimes it’s tipped in the other, and I’m kind of fascinated to puzzle out what might cause that balance to move in one direction or the other.

  5. I wonder if some of the difference isn’t a question of explicitness, of definiteness. Part of the reason we grumble about vendors, it seems to me, is that the rules aren’t obvious and they change all the time. But when there IS an explicit document, as with Netflix’s ToS, and especially when the document was negotiated beforehand (as with a license), we think that we had our opportunity to get our licks in, and now we need to be satisfied with what the words say.

    The weakness in that latter argument is that it doesn’t acknowledge the power differentials inherent in the license-negotiation process. We are NOT on a level playing field with publishers and aggregators, even though we’re the ones with the money. Until the playing field levels somewhat, I’m not sure we should be regarding licenses — and certainly not ToS agreements that we couldn’t even argue with! — as sacrosanct expressions of our mutual will.

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