William Straub

LIS 855: Management of Licensed Digital Resources
University of Wisconsin Madison
26 June 2009

An Analysis of JSTOR's Terms and Conditions of Use

JSTOR: The Scholarly Journal Archive is a well-known nonprofit repository of academic journals and other materials from arts and humanities, the social sciences, natural and physical science, mathematics, computer science, and statistics. This paper theorizes that Sequoia Community College District (a fictitious California Community College) is looking to add JSTOR to its expanding collection of online journal repositories for its distributed library system. This essay shall review and analyze JSTOR's Terms and Conditions of Use (henceforth know as “Terms”) by first conducting a needs assessment of Sequoia. It will then progress more-or-less according to the organization of the Terms, indicating issues and points in possible need of negotiation. It is interesting to note that the order of JSTOR's Terms corresponds somewhat to the Liblicense Model Licence Agreement (2008) which will also be used in this critique.

Needs Assessment

Lesley Ellen Harris (2002), in her Licensing Digital Content: A Practical Guide for Librarians, astutely suggests starting with a “blank piece of paper” to create a list of needs and requirements for one's particular institution before looking at an actual license (p. 15).Theoretically, the librarians have already conducted a trial license period with JSTOR and have solicited input from various users regarding their needs and possible access requirements. It also assumes that a budget is in place for this purchase, despite the budget crisis in California, as well as having the backing (or at least lack of opposition) from the administration. Of course these requirements should be strongly informed by users' needs. A little context will help the reader better understand Sequoia's needs.

Sequoia Community College District is comprised of six campuses with a total of three libraries widely dispersed over four rural counties, serving approximately 6,500 students per semester. The area of California served by Sequoia is considered to be somewhat economically challenged. Not all students can afford to have their own computers so they need to be able to share the documents. Staff and students need to be able to print, download, and save documents to conduct research, complete assignments, as well as to bring them to class. There were approximately ten distance education classes taught from the main campus last year, and approximately double that number available from the branch campuses. Instructors offer electronic reserves and materials through Blackboard, a password-protected content management system (CMS). Almost all of the students commute. Thus remote access 24/7 as well as local (on-site) access to electronic resources is essential. Librarians need to have easy access to managing the online repositories, free from dealing with collecting statistical information, and they need to be able to incorporate hyperlinks to these databases from the library Web pages. Typically the library has offered two links for every repository. One is available on campus through IP address authentication, and the second link requires a current Sequoia Community College library card number and password. Every student resource needs to fully adhere to section 508 and be compliant with World Wide Web Consortium (W3C) Web Content Accessibility Guidelines (WCAG) so as to be accessible for students with disabilities in accordance with federal, state, and board of trustees requirements. Although Sequoia is not currently utilizing SFX openURL systems, nor specifically targeting smart phone users, any licensed system need to be interoperable with these future systems. Most students will want easy-to-use search features, and reference librarians and other power searchers will need advanced search capabilities including Boolean operators, truncation, and access to controlled vocabulary. Ease of manageability and good technical support is essential. Eschenfelder (2008) documents a number of hard and soft TPMs (technological protection measures) including limits on extent of use, printing, chunking, or digital rights management (DRM) protected documents or files, among others, all of which would be eschewed for lack of ease of use.

Now that we understand Sequoias’ needs, let us analyze JSTOR's Terms looking at authorized and unauthorized users; permitted, fair, and prohibited uses; access and support; other issues; and warranties and liability. It is worthwhile knowing that hyperlinks within the Terms document point to three additional documents including the Support and Privacy Policy pages and also the Institutional Participation Agreement which states: “The parties agree to be bound by this Institutional Participation Agreement, including Schedules A and B to this Agreement, and the Terms and Conditions of Use.”

Authorized Users

Users with access rights are defined as “currently enrolled students (including distance education students), affiliated and visiting researchers, full and part-time staff, and on-site users physically present on the Institutional Licensee's premises (‘Walk-In Users’)” (JSTOR Terms, section 1). The inclusion of distance education students is appreciated and necessary. Harris urges inclusion of “support staff and researchers” within a license agreement, and similar language is already present (p. 106). Walk-in patrons are also specifically allowed which works well with Sequoia’s policy for other library resources that are available to the general public, but only on-site. Therefore, Sequoia has no issue with the definition of authorized users.

Unauthorized Users

Unauthorized users, of course, will not be allowed access to JSTOR. Since alumni are not specifically mentioned in the Terms, it might be assumed that they are unauthorized except as walk-in patrons. However, Sequoia should seek clarification (i.e. ask) —“never assume anything at any point,” says Harris (p. 98). However, whatever the clarification, this should not pose a problem for Sequoia since off-site library resources are generally not available for alumni.

Permitted Uses

The uses allowed by JSTOR are detailed in section 2.1 of the Terms and include “search, view, reproduce, display, download, print, perform, and distribute Content in the JSTOR Archive… [for] research activities… classroom or organizational instruction… student assignments… as part of a scholarly, cultural, educational or organizational presentation or workshop.” Also included is the permission to share JSTOR documents with “not an Authorized User” in order to collaborate or for “scholarly exchange of ideas.” Remote access utilizing “secure access methods” is also specifically allowed (section 2.1) among others similar in scope to the Liblicense Model License. These appear to be beneficial and acceptable terms.

Fair Use

Section 2.3 also includes language on fair use and makes reference to Section 107 of the U.S. Copyright Act. The language of the Terms does not limit fair use except for prohibiting the inclusion of JSTOR content in course packs and electronic reserves. This important prohibition will be addressed in the next section.

Prohibited Uses

The restrictions or limits on use in section 2.2-j of JSTOR's Terms are all reasonable and to be expected, except for the final prohibition to: “reproduce or distribute Content in bulk, such as by including Content in course packs, electronic reserves, repositories, or organizational intranets (but see Section 2.3, below).” Electronic reserves are an essential aspect of distance education as well as many face-to-face classes taught at Sequoia. Course packs are often requested by faculty members and are handled through the on-campus bookstores. Let us turn our attention to the exact wording of section 2.3 since electronic reserves and course packs are incredibly important:

Linking. JSTOR encourages the use of links to facilitate access to the JSTOR Archive by Authorized Users and Institutional Licensees, including but not limited to links to online syllabi, bibliographies, and reading lists. All Content has a stable URL that can be found in the Browse and Search interfaces of JSTOR's website as well as on the Article Information page for each discrete Content item. Further information on establishing stable links to material in JSTOR may be obtained from User Support” (JSTOR Terms, section 2.3).

The language seems fairly clear: instructors would be authorized to include a permalink from their syllabi or bibliographies to any articles they wish to include. This would therefore mitigate, if not completely negate, the need for separate JSTOR e-reserves. Although the Liblicense Model License section IV encourages agreements to contain language allowing for “a reasonable portion of the License Materials in the preparation of Course Packs,” faculty could simply hand out a bibliography or list of citations and students could create their own “course packs” from JSTOR materials. However, faculty would need to be informed of this--one more thing that the librarians would have to announce, explain, and possibly defend. Perhaps the library could enlist the assistance of the IT staff in charge of Blackboard CMS whose responsibility already entails educating instructors regarding best practices for presentation and delivery of online course materials. Perhaps a better solution could be negotiated with JSTOR to eliminate this restriction.

Access and Support

Interlibrary loan is increasingly important for academic libraries and JSTOR’s Terms allow for it as long as it “is in accordance with United States or international copyright laws...[and] Institutional Licensees shall comply with the CONTU Guidelines” (section 2.4). This should not be a problem since Sequoia’s policies and practices are already in compliance with copyright laws including conforming to CONTU’s update to Subsection 108(g)(2) of copyright law.

The only mention made to training in JSTOR's Terms is to indicate that they encourage Institutional Licensees to utilize JSTOR's logo when advertising training sessions for authorized users (section 3.2 [ii]). In other words, Sequoia is responsible for any and all training of both staff and students. This is unfortunate, for what responsibility does JSTOR have when they change their interface and staff need to quickly learn about an updated options in order to assist students and other patrons?

Although there is apparently no need for additional software or hardware, support may certainly be an issue. According to JSTOR's Support policy, helpful staff at JSTOR are only available from 9 a.m. until 5 p.m. Eastern Standard Time Monday through Friday. This means that in California, technical support will not be available after 2 p.m. As an academic institution, Sequoia is responsible for serving its students to the best of its ability. Therefore, it is probably unacceptable for students taking online classes or who may be conducting research in the evening and might have problems. Also, the Sequoia Library on the main campus is usually open until 9 p.m. PST. Furthermore, JSTOR is vague about the level of support they will provide, stating only “reasonable levels during the term of the Agreement.” Many technical support people have an idea of “reasonable levels” of support, but this is a hedge by JSTOR. At any point in time, JSTOR can announce that technical support is “unreasonable” and therefore terminated. Additionally, JSTOR states: “The parties agree to discuss payment terms for support following the initial three-year term.” One has to carefully read the Terms and then follow the link in order to uncover this almost hidden cost. Nevertheless, Sequoia needs to take this into consideration for their 2012-13 budget. Fortunately, JSTOR appears to be quite stable and not prone to many problems. In fact, this writer contacted the University of Wisconsin-Madison Library via e-mail and learned that UW-Madison has not updated its license with JSTOR since it was signed in 1997. According to the terms they signed, if UW-Madison were to terminate the agreement, JSTOR would provide “one complete set of CD-ROMS (or their equivalent at JSTOR's option) containing the journals contained in the database prior to termination” (Natalee Hattig, personal communication, June 25, 2009).

Another potentially serious issue is the Terms statement that less than 72 hours of downtime within a 30 day cycle will not result in any penalties or refunds of fees (JSTOR Terms, section 4.1.1). Of course no online service provider can guarantee 100% uptime for various and understandable reasons. Nevertheless, 72 hours of possible downtime is extreme. Imagine that JSTOR is down for 71.5 hours during midterms when students are working on researching papers; this is unacceptable. Another issue is that there is no mention of renewal, automatic or otherwise (cf. Harris, p. 18; and  Liblicense  section 6.2). Agreement shall continue in effect for three (3) years. This would need to be discussed and perhaps negotiated.

As was previously mentioned, all electronic technology used in community colleges in California must meet Section 508 and W3C WCAG accessibility standards. According to JSTOR Terms 4.1.3.1, the JSTOR Archive meets this requirement. Terms 4.1.3.2 indicate that it meets openURL standards, thus fulfilling that possible future requirement.

A further troubling clause states that in case of a violation of these Terms by a user, “JSTOR may request Institutional Licensee to consider the imposition of further reasonable restrictions on access to, and downloading and printing from, the JSTOR Archive” (Terms, 4.2.1c). This is probably unacceptable language due to its vagueness and implied possibility that Sequoia may have to implement possibly expensive and/or technically difficult TPM (technological protection measure) use rights. The library should consult with IS and perhaps will have to renegotiate this term.

Section 4.2.2 requiring verification of the status of passwords probably needs clarification from JSTOR as to how their password protection scheme works in regards to user access. “Ask: never make assumptions” are the wise words of Harris (p. 90). The requirement for IP address authentication and verifying the status of Authorized Users should pose no problem. However a discussion of the feasibility and practicality of JSTOR's password demands would most likely need to be discussed with Sequoia's administrator of Information Services. This may be an issue which needs to be negotiated with JSTOR. Of course this presupposes good communication between Information Services and the librarian negotiating the possible Terms before negotiations with JSTOR commence.

The Institutional Participation Agreement does allow the terms of agreement to cover multiple campuses or sites-- as long as they are listed on the initial agreement form. Therefore, if another site were added (this happened four years ago at Sequoia), the Participation Agreement would have to be updated, and the Terms would possibly need to be renegotiated. This should be clarified with JSTOR.

According to Liblicense Model Licence Agreement, inclusion of “continued training” in any license agreement is recommended (2008, section 5.1-d Licensor Performance Obligations). The Model License Agreement also suggests a number of other details which should be included in the license including usage statistics (Liblicense, section 5.1-m Licensor Performance Obligations). JSTOR does provide those in COUNTER compatible format (JSTOR Terms, section 4.1.3.4).

Other Issues

There are a few other less dramatic issues with JSTOR's Terms. For example, there would be a need to check with Sequoia's legal counsel about the implications of using the Sequoia Community College name in JSTOR's marketing brochures (JSTOR, subsection 3.2-i).

The onetime “Archive Capital Fee” is $1,000 according to JSTOR's Institutional “Participation Agreement” for Community Colleges. Another approach is offered by the ICOLC's (International Coalition of Library Consortia) Statement of Current Perspective and Preferred Practices (2004) which states that publishers should provide archival data as part of the regular subscription price (Enduring Goals for Access to Information, paragraph 3). Although this cost is somewhat obnoxious, it is understandable with JSTOR's mission to act as an archival repository for journals and academic work. Unfortunately, Sequoia will probably have to pay this expense, but it is for a worthwhile cause.

Reference staff have reported that the absence of a thesaurus for searching JSTOR’s controlled vocabulary is an issue, but this is not so serious that it would ultimately be a deal breaker. Harris recommends approaching the negotiating table with “bargaining chips,” and this could be used as one (pp. 91-92). Plus presenting the lack of a thesaurus as a negotiating point could be a possible “teaching moment” for educating JSTOR about user needs and suggestions for future improvements.

JSTOR's Privacy Policy document dictates that users shall remain anonymous, unless they intentionally disclose some personal information to JSTOR through correspondence or through purchasing a product from JSTOR. Tracking does occur, but it is “in aggregate form” and therefore would be acceptable (cf. Harris, p. 29; Bielefield and Cheeseman, p. 76; and Liblicense, section IX).

Jurisdiction

JSTOR states: “These Terms and Conditions of Use shall be interpreted and construed according to United States Federal law…” (Terms, section 9.2). Federal law of course supersedes California law. Nevertheless, Sequoia should probably consult with legal counsel to make certain that there is no issue with this clause.

Warranties and Liability

According to the Terms: “5.3 OTHER THAN ANY EXPRESS WARRANTIES STATED IN THIS SECTION 5, JSTOR, CONTENT AND ACCESS SOFTWARE ARE PROVIDED ON AN "AS IS" BASIS...” Therefore, there are no guarantees that JSTOR will work with every and all computer systems, and it is not JSTOR's fault. Similar language utilizing the “as is” clause is included in the Liblicense Model License (section XV), and according to Bielefield and Cheeseman (1999), “[t]his kind of clause is fairly common” (p. 56). However, Bielefield and Cheeseman caution that some publicly funded institutions are forbidden from signing agreements with language disavowing all other warranties (pp. 56-57). They urge contacting legal counsel to ensure that this language is acceptable. Therefore JSTOR's Terms for limitation on warranty may not be acceptable, and negotiations may be necessary.

Conclusion

Except for the warranties and liability section, JSTOR's Terms are fairly clear and meet Harris's recommendation “that the agreement be in layperson’s language” (p. 97). Of course, “[t]here is no such thing as a perfect license” (Harris, p. 99). Unfortunately, JSTOR's Terms of Service is far from perfect. The question then becomes, can Sequoia live with these issues or will they be an impediment to the needs of the users and requirements of the institution? What is the loss-benefit ratio? Is it worth while in staff time and effort (and thus money) to negotiate the whole license for these issues? However there are serious questions and issues which in this writer's opinion deserve the time and energy of Sequoias’ legal counsel, and perhaps need to be negotiated including: allowing e-reservesand course packs, providing alternatives for the limited technical support hours and vagueness about “reasonable levels” of support, 72 hours of possible downtime per month, lack of training, and also the warranty language from Terms section 5.3. Additionally, there is a need for clarification on a number of points including password protection schemes and the procedure(s) for including additional sites should that become necessary in the future. Harris urges licensee negotiators to be flexible in their approach (p. 93), nevertheless accepting JSTOR's Terms without clarifying these issues would appear to be negligent.

According to Harris, any critique of terms of service needs to begin with an institutional needs assessment (p. 16). This essay has attempted to spell out that needs of the fictitious Sequoia Community College and then analyze the JSTOR Terms of Service comparing them to those needs.Despite the fact that JSTOR’s materials would be a real asset for Sequoia’s students, faculty and staff, unfortunately the overall conclusion should probably be that Sequoia not go ahead with purchasing JSTOR until legal counsel has been contacted and negotiations conducted with JSTOR to discuss, and hopefully resolve these issues.

References