The contract would be only with the individual who used the images from our site. If he/she gave them to a third party who used them commercially, Cornell would have no legal recourse against that third party. Cornell could only bring legal action against the person who actually downloaded the images. It would be very difficult to identify which individual actually downloaded the images that were subsequently distributed in violation of the license. As part of its settlement agreement with authors and publishers, Google will do this by embedding identifying information into prints and downloads. Given our library’s commitment to confidentiality, I am not sure that Cornell would want to emulate what Google is going to do, even if technically we could. The Internet Archive indicated that it has no mechanism to place a click- through license in front of content or a browse-wrap license on the site. This option would therefore only work with Cornell’s Web site. It would not have made sense to have different terms for the same material depending on whether it is coming from Cornell or the Internet Archive. Was there an option that would be less restrictive than a contract? Yes. Although we may not have been able to restrict legally what people could do with the scans, we could have included a statement that indicated Cornell’s preferences. We simply could have asked individuals not to use the scans in ways that concerned us and explained why we were asking for their cooperation. We could also have implemented certain technical measures that would limit problematic activities—for example, the bulk downloading of books from Cornell’s Web sites. But we would not have had a legally enforceable contract with users. If users could get copies, they could offer our scans for sale through print-on-demand sites or other commercial ventures. Does any other major service or database use a voluntary license? Google uses an aspirational statement with its books. There’s a page that they place in the front of their scanned books in which they ask that people only use the books for personal, non-commercial purposes. But that’s not without its issues, correct? Google has been harshly criticized for including this statement in its books. RLI 266 3 Removing All Restrictions: Cornell’s New Policy on Use of Public Domain Reproductions ( C O N T I N U E D ) OCTOBER 2009 RESEARCH LIBRARY ISSUES: A BIMONTHLY REPORT FROM ARL, CNI, AND SPARC
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