[Federal Register Volume 82, Number 122 (Tuesday, June 27, 2017)]
[Rules and Regulations]
[Pages 29003-29004]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-13342]


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LIBRARY OF CONGRESS

36 CFR Part 701

[Docket No. LOC 2017-1]


Library of Congress License Agreements

AGENCY: Library of Congress.

ACTION: Final rule.

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SUMMARY: The Library of Congress is issuing this final rule regarding 
license agreements and similar agreements and instruments entered into 
by it. The rule will prevent the Library from potentially violating the 
Anti-Deficiency Act and other restrictions under Federal law, preserve 
the Library's rights under copyright law in regard to electronic 
resources and software, and streamline the Library's contracting and 
collections acquisitions processes for these electronic resources and 
software.

DATES: Effective June 27, 2017.

FOR FURTHER INFORMATION CONTACT: Elizabeth A. Pugh, General Counsel, 
Office of the General Counsel, Library of Congress, Washington, DC 
20540-1050. Telephone No. (202) 707-6316.

SUPPLEMENTARY INFORMATION: The Librarian of Congress is authorized to 
make regulations with respect to the Library of Congress (2 U.S.C. 
136). Since neither the Federal Register Act nor the Administrative 
Procedure Act has binding effect on the legislative branch, the Library 
of Congress is not required to publish its regulations in the CFR. 
However, as the purpose of the CFR is to notify industry, general 
business, and the people (Toledo, P. & W.R.R. v. Stover, 60 F. Supp. 
587 (S.D. Ill. 1945)), it is appropriate for the Library to publish 
those regulations which affect the rights and responsibilities of, and 
restrictions on, the public. Further, 1 CFR 5.3 allows documents ``in 
the public interest'' to be published in the Federal Register even if 
they are not required to be published under the Federal Register Act 
and 1 CFR 5.2.
    The regulation governs license agreements and similar agreements 
and instruments entered into by the Library of Congress. The regulation 
establishes terms for these agreements intended to prevent the Library 
from incurring obligations that would potentially violate the Anti-
Deficiency Act and other restrictions imposed by Federal law, to 
preserve the Library's rights under U.S., foreign, and international 
copyright law, and to protect the Library's ability to make use of 
computer software and other materials it licenses. In addition, this 
regulation is intended to streamline the contracting and collections 
acquisitions processes for the Library and for licensors by enabling 
the Library to avoid the need to negotiate specific terms addressing 
these matters in each license agreement into which it enters.

List of Subjects in 36 CFR Part 701

    Libraries, Government contracts, Government procurement.

Final Regulation

    For the reasons set forth in the preamble, the Library of Congress 
amends 36 CFR part 701 as follows:

PART 701--PROCEDURES AND SERVICES

0
1. The authority citation for part 701 continues to read:

    Authority:  2 U.S.C. 136; 18 U.S.C. 1017.


0
2. Add Sec.  701.7 to read as follows:


Sec.  701.7  Certain terms in license agreements.

    (a) Definitions. (1) Computer software has the meaning provided in 
48 CFR 2.101.
    (2) License agreement means any license agreement, subscription 
agreement, end user license agreement (EULA), terms of service (TOS), 
or similar legal instrument or agreement.
    (b) Purpose. The purpose of this part is to accommodate the Library 
of Congress' legal status as a Federal agency of the United States and 
assure that the Library of Congress, when entering into license 
agreements, follows applicable Federal laws and regulations, including 
those related to fiscal law constraints, governing law, venue, and 
legal representation; to preserve the Library's rights under U.S., 
foreign, and international copyright law; and to preserve the Library's 
ability to make use of computer software and other materials it 
licenses.
    (c) Applicability. (1) The clauses set forth in paragraph (d) of 
this section are deemed to be inserted into each license agreement to 
which the Library of Congress is a party with the same force and effect 
as if set forth therein, notwithstanding any provision thereof to the 
contrary. In addition, the clauses in paragraph (e) of this section are 
deemed to be inserted into each license

[[Page 29004]]

agreement to which the Library of Congress is a party, other than 
license agreements for the license of computer software to the Library 
of Congress, with the same force and effect as if set forth therein, 
notwithstanding any provision thereof to the contrary. If any term of a 
license agreement (at the time the license agreement is executed or as 
it may be amended in the future) conflicts with or imposes any 
additional obligations on the Library of Congress with respect to a 
matter addressed by any of the clauses that are deemed to have been 
inserted into the license agreement as described above, the following 
shall apply:
    (i) Such term is unenforceable against the Library of Congress 
unless otherwise expressly authorized by Federal law and specifically 
authorized under applicable Library of Congress regulations and 
procedures;
    (ii) Neither the Library of Congress nor its employees shall be 
deemed to have agreed to such term by virtue of the term appearing in 
any license agreement;
    (iii) Such term is stricken from the license agreement; and
    (iv) The terms of the clauses of this section incorporated in the 
license agreement shall control.
    (2) The Library of Congress is not bound by a license agreement 
unless it is entered into on behalf of the Library of Congress by a 
person having the authority to contract referred to in Sec.  701.4.
    (3) The Library of Congress is bound only by terms that are in 
writing and included in license agreements (including hard copy and 
electronic license agreements) entered into on behalf of the Library of 
Congress by a person having the authority to contract referred to in 
Sec.  701.4.
    (4) If any provisions are invoked through an ``I agree'' click box 
or other comparable mechanism (e.g., ``click-wrap'' or ``browse-wrap'' 
agreements), such provisions do not bind the Library of Congress or any 
Library of Congress authorized end user to such provisions, unless 
agreed to on behalf of the Library of Congress by a person having the 
authority to contract referred to in Sec.  701.4.
    (d) Provisions applicable to all license agreements. The following 
clauses are deemed to be inserted into each license agreement to which 
the Library of Congress is a party:

Unauthorized Obligations

    The Library of Congress shall not be bound by any provision that 
may or will cause the Library of Congress or its employees to make 
or authorize an expenditure from, or create or authorize an 
obligation under, any appropriation or fund in excess of the amount 
available in the appropriation or fund, that would create an Anti-
Deficiency Act (31 U.S.C. 1341) violation. Such provisions include, 
for example, automatic renewal of the agreement, penalty payments by 
the Library of Congress, indemnification by the Library of Congress, 
and payment by the Library of Congress of taxes or surcharges not 
specifically included in the price for the license.

Liability

    The liability of the Library of Congress and its obligations 
resulting from any breach of this agreement, or any claim arising 
from this agreement, shall be determined exclusively under 28 U.S.C. 
1346, 28 U.S.C. 1491, or other governing Federal authority.

Representation

    The conduct of, and representation of the Library of Congress 
in, any litigation in which the Library of Congress is a party, or 
is interested, are reserved exclusively to the United States 
Department of Justice as provided for in 28 U.S.C. 516.

Governing Law

    This agreement shall be governed for all purposes by and 
construed in accordance with the Federal laws of the United States 
of America.

Venue

    Venue for any claim under this agreement shall lie exclusively 
in the Federal courts of the United States, as provided in 28 U.S.C. 
1346 and 28 U.S.C. 1491. Any action commenced in a State court that 
is against or directed to the Library of Congress may be removed by 
the United States Government to Federal district court in accordance 
with 28 U.S.C. 1442.

Dispute Resolution

    The Library of Congress does not agree to submit to any form of 
binding alternative dispute resolution, including, without 
limitation, arbitration.

Order of Precedence

    Notwithstanding any provision of this agreement (including any 
addendum, schedule, appendix, exhibit, or other attachment to or 
order issued under this agreement), in the event of any conflict 
between the provisions of this agreement and the provisions of the 
clauses incorporated into this agreement pursuant to 36 CFR 701.7, 
the provisions of the clauses incorporated pursuant to 36 CFR 701.7 
shall control.

Commercial Computer Software

    As used in this clause, ``commercial computer software'' has the 
meaning provided in 48 CFR 2.101.
    The provisions of the clause regarding the license of commercial 
computer software set forth in 48 CFR 52.227-19 are incorporated 
into this agreement with the same force and effect as if set forth 
herein, with all necessary changes deemed to have been made, such as 
replacing references to the Government with references to the 
Library of Congress.

    (e) Additional provisions applicable to license agreements other 
than for license of computer software. In addition to the clauses 
deemed to be incorporated into license agreements pursuant to paragraph 
(d) of this section, the following clauses are deemed to be inserted 
into each license agreement to which the Library of Congress is a 
party, other than for the license of computer software to the Library 
of Congress:

Unauthorized Uses

    The Library of Congress shall not be liable for any unauthorized 
uses of materials licensed by the Library of Congress under this 
agreement by Library of Congress patrons or by unauthorized users of 
such materials, and any such unauthorized use shall not be deemed a 
material breach of this agreement.

Rights Under Copyright Law

    The Library of Congress does not agree to any limitations on its 
rights (e.g., fair use, reproduction, interlibrary loan, and 
archiving) under the copyright laws of the United States (17 U.S.C. 
101 et seq.), and related intellectual property rights under foreign 
law, international law, treaties, conventions, and other 
international agreements.

    Dated: June 20, 2017.

    Approved by:
Carla D. Hayden,
Librarian of Congress.
[FR Doc. 2017-13342 Filed 6-26-17; 8:45 am]
BILLING CODE 1410-10-P