Reality Check Time for "Terms and Conditions." (Database Industry)
Database producer "Terms and conditions" (or "Ts and Cs," as they're known in the trade) constrict searchers and their clients. God only knows what restrictions producers hash out with vendors, but let's trust vendors can take care of themselves. All too often professional searchers struggle with restrictions that are unclear, overly complex, impractical, and inequitable. Fortunately, they are sometimes also invisible; unfortunately, professional searchers have better eyesight than their clients or end-user searchers. What really bemuses searchers, however, is the barrier effect "Terms and Conditions" imposes on marketing database usage.
"Terms and Conditions" warnings often do exactly what they are designed to do: discourage usage. They intimidate users from finding new and exciting roles for data and stifle the urge to spread the word far and wide about wonderful new information available and usable in magical new ways. Unfortunately for the industry, and often its clientele, "protecting" a database producer's or search service's "rights" in its data can also "protect" the customer's budget. Discouraging misuse of data also discourages usage-based revenue to information providers.
How many renditions of the "contraception concept" are there? "No part of this database may be reproduced or transmitted in any form without permission from ...." "Any reproduction of material without permission of ... is prohibited." "No part of these databases may be duplicated in hard copy or machine-readable form without written authorization." "Copying in machine readable form is not authorized." Or, my personal favorite, "These databases may not be reproduced, stored in machine-readable form, or transmitted by any means without the written permission of the publisher." What do they want us to do with the printout? Eat it?
Time out for a reality check. What does this "no reproduction" phrase mean in the real world? Strictly interpreted it could mean that data which flows past the screen should not be printed out simultaneously, much less downloaded for editing before printing (two sins for the price of one). If one so forgot oneself as to download data for editing, most standard word processing software packages would have to be re-configured or dismantled to eliminate their safety-minded creation of back-up files. And, of course, the searcher would have to eliminate any protective policies of backing up a disk on which search results resided. Heaven forfend any outlaw searcher would decide to transmit results to clients over an electronic mail service! Who knows what archiving policies the scamps who design and operate e-mail service impose!?!
Most database producers who craft these legalistic gems sell data primarily to professional searchers who conduct searches on behalf of clients. If professional searchers cannot reproduce the data in any form for delivery to anyone, then they have no reason to search the database at all or to pay any monies to the database industry These days, if searchers provide clients with un-edited search results, they may not keep those clients for long. One producer at least made a stab at dealing with the real world when they amended the standard prohibition against reproduction with an exception that "up to five percent of the abstracts and five percent of the directory records may be stored temporarily (for up to one day) in electronic media to enable reformatting or editing for internal use." But what does the "five percent" cover - the total database or a subset of one set of search results? The latter doesn't make much sense, but the former requires searchers to keep a running tab on total database record counts by type and a handy calculator. Frankly, my advice to database producers who want to guarantee full implementation of "contraception clauses" is to remove your databases from the online services completely - at least those that market to professional searchers. Have fun chasing the end user! If you do manage to catch their eye, don't expect them to obey or even read this barrier terminology.
Besides being confused, prohibitions can also be confusing. All the disclaimers as to quality make one wonder why producers bother to warn against spreading the data. How many ways can a producer beg off responsibility - "makes no representations or warranties, expressed or implied, including but not limited to, any implied warrant of merchantability or fitness for a particular purpose," "assumes no liability for errors or omissions and ... assumes no responsibility for Customer's use of the information." The same paragraph that contains the latter warning also states, "Search results received by Customer in machine-readable form remain the property of the ..." database producer. One wonders why they bother. One also wonders how you can own machine-readable data on someone else's machine.
Some "Terms and Conditions" guard against specific eventualities, but even there the tendency to use an elephant gun to shoot a mouse persists. For example, one directory database bears the warning "The generation of mailing labels or any kind of mailing list from the directory records in the database is not permitted. Resale or free distribution of any data to third parties is expressly prohibited." Let me get this straight. Don't most people who use a directory file to find an address end up mailing something? If a directory database producer doesn't want addresses used for mailing, perhaps they should eliminate the addresses and just include phone numbers. By the way, does mailing a letter to an address found on the directory database constitute "free distribution ... to third parties"? Or is the recipient of the correspondence expected to pay royalties to the database producer?
The ultimate irony occurs when industry players even try to restrict public domain data. Reading restrictions on government-created databases can leave a searcher feeling like a late fifteenth century Caribbean Indian, hunkered down behind a bush, watching a guy with a flag on a pole and a Conquistador helmet proclaiming this land for Queen and Country. "Hey, buddy! What the heck do you think you're doing? That's my dirt you're sticking your pole into." Consider the following wording applied to public domain databases - "Data may not be duplicated in hardcopy or machine-readable form without the written authorization of ...." by a search service that licensed the data from agencies of the U.S. government. How many times does a taxpayer have to pay for this stuff anyway? Perhaps it would not be fair for either the government as a database producer or the search service as the deliverer to have a customer download the entire file or massive chunks of it. The high price of online data should serve as sufficient protection against that eventuality. Beyond that protection, how fair is it for a commercial search service to self-proclaim authority over redistribution of data paid for originally by U.S. taxpayers? How can the search service extend proprietary rights beyond those of the original data- base producer - the U.S. government?
Besides the confusion and impracticality of enforcing many clauses, the prohibitions often seem unevenly applied. Few print versions of the databases in question carry the elaborate warnings of the machine-readable files. One major database producer has different warning statements varying in length from two paragraphs to two pages (double column) depending on the vendor carrying the data. Interestingly enough, when a customer acquires the data directly from the vendor, the phone order process rarely inquires as to the customer's goals and purposes in using the data. They just want the correct credit card number. If one were suspicious by nature, one might wonder whether the onerous "Terms and Conditions" imposed on vendor customers might be designed to herd clients to the more profitable direct vendor sales route. Thank heaven, we all have pure and guileless minds unsullied by the taint of malicious suspicion.
The most exotic and onerous "Terms and Conditions" may even require vendors to share information on the results of specific searcher inquiries. In one instance, the producer claims such invasions of searcher privacy would provide tracking for sending out correction notices. However, most searchers would probably find the danger to the confidentiality of their inquiries much more serious than occasional data corrections. In fact, search services that share data on what customers search with database producers violate the librarians' code of ethics. We contacted Anne Penway, assistant director of the American Library Association's Office for Intellectual Freedom. Ms. Penway assured us, "It would violate librarians' professional ethics to supply information on patron requests to anyone for any reason absent a court order." In fact, she pointed out, "Most states have some type of statute protecting confidentiality of information about library users," though the definitions as to specific types of libraries may vary from state to state.
The information industry and clients should stop squabbling about ineffective solutions that only make the problem worse and work together to provide creative, equitable solutions. Basically, the industry does not want to lose revenue and/or reward competitors with easy replication of their data. Professional searchers understand this and will try to help. We have no vested interest in seeing vital information sources lose the revenue stream that maintains their production. Let us work together for imaginative, effective, and mutually profitable solutions.
For example, public domain data without restrictions will inevitably travel far and wide. A wiser online industry might establish a more generous policy for public domain data instead of attempting to defend a tenuous legal posture over "ownership" of public property. The industry could then observe the behavior of public domain data users as a test environment for identifying user wants and wishes. Do users want to redistribute data widely to other users? Will such re-distributed data form the basis for decision information systems? What value will users themselves add? What tools or environments will they develop to enhance value? Will the environments grow informally with some achieving an established position or will formal, top-down structuring work best? Which types of users and markets grow in which ways?
Public domain data could serve as a test bed for such questions. Once answered the industry could design better products and services around private sector data with recognized intellectual property rights, perhaps integrating private sector data with public domain in new ways that make advantages more visible and products more desirable. The snarling dog model of caveats may find itself guarding an empty manger as time goes by, particularly with the Internet expanding and establishing more generous, free-flowing user expectations.
As to standard protective language, the industry could start by looking to the American Chemical Society's language. While it is a little too lengthy, the ACS statements are written in clear, lucid English and addressed to the interests of users. Subheadings hit the nail on the head - "What You May Do." "What You May Do With Special Permission," "What You May Not Do." Personally, I would advise database search services to impose a condition of lucidity and practicality in the "Terms and Conditions" the search service distribute the producers' behalf I recommend search services write a clear, concise, realistic, standard warning. Any database producer that deviates from the standard statement by imposing special conditions must create an equally clear, concise, realistic statement that includes - as a minimum - a section defining what the user may do. If a database producer cannot explain what the buyer has bought, then it's No Sale anyway.…
Questia, a part of Gale, Cengage Learning. www.questia.com
Publication information: Article title: Reality Check Time for "Terms and Conditions." (Database Industry). Contributors: Not available. Magazine title: Information Today. Volume: 10. Issue: 9 Publication date: October 1993. Page number: 7+. © 2009 Information Today, Inc. COPYRIGHT 1993 Gale Group.
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