Our organizations have business continuity plans. I’ve been thinking recently about how that doesn’t always extend to our electronic subscriptions. If your courthouse law library is like ours, there is a physical requirement for some license access. Researchers must be in library or corporate space to use the license. That doesn’t work when we lose our space in a pandemic – or a fire, earthquake, hurricane, flood, locusts – and need access without restrictions.
I’ve posted about negotiating the electronic license you want by asking for clauses that represent your needs. There’s no guarantee a legal publisher will go along with this. But it seems to me that it’s worth spending some time thinking about what you’d ask for and put it into your next contract negotiation.
I tweeted out my initial thoughts last week. One thing I struggle with in contracting is the lack of sample clauses to build from. That was the benefit of the post I linked to above – colleagues shared their clauses.
I don’t think it should be pandemic specific but if we are going to see future lockdowns, that may be the most tangible example. The legal publishers in North America have made some of their resources available for free. It’s an interesting marketing ploy and may convert a number of non-subscribers.
Physical Access Clause In the event the library's physical space is inaccessible for [7] days, causing this license to be unusable due to its reliance on physical presence in the library, the legal publisher will provide either: a) a refund for the pro-rated cost of the license during the period the library is closed; *whose fault is closure? *does it matter? b) an alternative login method that allows remote access equal to twice the number of public terminals available in the library. *could be specific #; 2x to take into account wireless use; could require library to provide proxy authentication mechanism;
The legal publisher freebies don’t solve one aspect: we are paying on a monthly basis for a service we can’t use. Even if our staff still have access and can intermediate access to content, it’s not what we paid for. It seems as though that should be the goal: a clause that allows us to continue to get the bargained for exchange.
Cause and Effect
You can see my first crack at it above. I think we probably need to identify the time frame that causes the clause to into effect. If our organization’s internet drops for a day or two, that’s too short. Also, it’s an internal fault.
But what about if the courthouse is hacked? We have seen courts in Pennsylvania and Texas hit with ransomware. The Philadelphia courts were out of action for weeks. If the systems that go offline include public access terminals, we need a backup plan for information access.
How many days? I think that will be a purchaser / publisher decision. From a law library director perspective, it depends on how the access will occur during the physical space closure. If it’s easy to do, then I think we can switch to it in a shorter window. If it’s technically complex for either us or the publisher to put into effect, then we may need to adopt a longer wait-and-see window. 7 calendar days seems about right to me assuming moderate complexity.
Options Should Include Money
Some law libraries will not have the technical skills to bridge the gap themselves. In the same way that we have seen car insurance companies reduce rates or provide rebates during the pandemic, it’s not unreasonable for us to look to the publisher if our license becomes unusable.
This would impact our Force Majeure or Act of God provisions. Here’s the standard boilerplate from LexisNexis US:
A10.10 Force Majeure. Except with respect to Your obligation to make timely payments, neither party shall be held responsible for any delay or failure in performance to the extent that such delay or failure is caused by fires, strikes, embargoes, explosions, earthquakes, floods, wars, water, the elements, labor disputes, government requirements, civil or military authorities, acts of God or by the public enemy, inability to secure raw materials or transportation, facilities, acts or omissions of carriers or suppliers, or other causes beyond its control whether or not similar to the foregoing.
To the extent things are unexpected, I can see the point of force majeure. But if we are doing planned lockdowns as we did with coronavirus, I’m not sure this works as well. A smaller law library may want to explore what options there are for a rebate in case of physical space disruption that makes their license unusable.
Options Should Include Access
The legal publishers have shown us that, within a matter of weeks, they can have alternate options available. These have been primarily business-to-business and bypass the library. But if there is the ability to do that, there’s no reason the library can’t maintain its intermediary status.
It’s not cut and dried. If we have a license for electronic access from within the library, that assumes people on our public access terminals and people on their devices using wireless. We use IP authentication which makes this pretty straightforward access control for the publisher.
I don’t think it would work – or be advisable – for the library to ask the publisher for usernames and IDs. Even if I’ve got 10 public PCs, I’ve got 60,000 possible users. That doesn’t scale. Also, to the extent we start to pass out those 10 user IDs, we’d have to reset them before they go out to new people.
Some of this expects sophistication on the part of the law library. Some of this requires sophistication on the part of the legal publisher. If one or the other is missing, it can make it impossible to effectively bridge the physical space loss.
The ideal would be some method of proxied authentication. In Ohio, we used a simple membership database for our 1500 members to log into a web page. Legal publishers intercepted the web referral address and used that to allow our researchers in. It’s the same sort of setup many libraries have with OCLC’s EZProxy or other single-sign-on tools.
The publishers can then control the access. If we’ve got 10 public PCs and wireless, I would think 20 concurrent users to be a pretty reasonable ask. That is easy for me to explain to our researchers and it’s substantially different from our user base. But I would expect that legal publishers would want to have a discussion about the number.
It will require investment by the library to make this work. And the investment will need to be done before business continuity is needed. Just like backups and redundant systems, it’s too late when the physical space loss happens.
I’m years away from renegotiating our online licenses. It will be interesting to see if examples pop up in the meantime. I’m going to continue to noodle on this until I get to a point I can put it into action.