I feel like this is a periodic post… but it’s time again.
Right now we’re going back and forth with a vendor whose license agreement includes strict language about non-disclosure and confidentiality, and that everything in the agreement is a trade secret. I’ve said this all before, here. The key piece, in my opinion, is this:
“These terms and terms like them in library contracts exist only, as far as I can tell, to prevent libraries from discussing their pricing agreements amongst ourselves. They are designed to protect the vendors from collective awareness and action, and better-informed decision-making by libraries.”
At the time, I was talking about the Copyright Clearance Center, and we declined to sign, and did not adopt their Get It Now service as a result. This time I’m talking about a more traditional publisher, and I’d hate to have to walk away from their ebooks packages, but as we have indicated to them directly, we adhere to the principles outlined by the SUNY Council of Library Directors and the manifesto of the Empire State Library Network: https://www.esln.org/i2ny/e-resources/
At the moment, the conversation has ended with the sales guy saying to my CD librarian “Can you forward the comments to your legal team and see if they accept or when they would be available to speak so that I can set that up from my end.” And this is a new problem. We don’t have a legal team. I am our legal team. I read and review and sign all licenses. I am, decidedly, not a legal team. I am the decision-maker, and the responsible party, but I am not a legal team.
That does not frighten me. I can deal with their legal team. But not all of my peers would feel comfortable doing that. Some of my peers would see that statement and feel completely incapable of handling the next steps — it’s outside their skills, it’s outside their confidence, they just want the offending language removed and they’ve said what they have to say and they have no resources to turn to in the face of talking to a “legal team”…
And so I have to wonder. Is this lack of awareness on the part of a corporate salesdude? (“Of course they have a legal team; they’re complaining about a license agreement, legal must be reviewing it.”) Or is it quiet bullying? (“If I tell them I’m going to make them talk to legal, I bet they’ll back down.”)
Given how I feel about vendors these days, I’m 50/50 on that.
Directors and librarians: Don’t back down. Lawyers are just people with a specialized skill set, and you are under no obligation to sign anything just because they say it’s a good idea, particularly when they work for the other guy. Don’t be intimidated into signing anything that makes you feel like you should probably shower afterwards. We’re professionals, we’re capable, we’re well-educated, and we’re often in the right. Don’t be convinced otherwise, and ask for plain language if plain language is what you need.
And please please please don’t sign NDAs without a damn good reason.