October 1, 2014

Random House Says Libraries Own Their Ebooks | LJ Insider

Let’s violate a journalistic tenet and repeat that headline: Random House says libraries own their ebooks.

For those who have been paying close attention, this is not news. It came up at the Massachusetts Library Association conference in May, it was bruited about at the American Library Association (ALA) annual meeting in Anaheim in June, and it was mentioned in a “corner office” interview  I had with Skip Dye, Random House’s vice president of library and academic marketing and sales, during LJ’s virtual ebook summit on Wednesday. But the potential implications of Random House’s stance are not receiving enough attention and consideration.

I asked Random House to confirm its position in a subsequent interview, and here is what Dye told me.

“We spend a lot of time discussing this with librarians, at conferences and elsewhere, and it’s clear that there is still some confusion out there around whether libraries own their ebooks,” Dye said. “Random House’s often repeated, and always consistent position is this: when libraries buy their RH, Inc. ebooks from authorized library wholesalers, it is our position that they own them.”

He went on to make clear the distinction with licensing:

“This is our business model: we sell copies of our ebooks to an approved list of library wholesalers, and those wholesalers are supposed to resell them to libraries. In our view, this purchase constitutes ownership of the book by the library. It is not a license.”

That last sentence needs to be underlined and italicized.

The Connecticut State Library’s Advisory Council for Library Planning and Development (ACLPD) this week released a white paper on ebooks which says, among other things, that “While libraries have traditionally valued ownership of materials, when it comes to ebooks, a careful reading and thorough understanding of the licensing agreement with each vendor will hold the library in better stead than promises of electronic ownership.”

A well-crafted perpetual license is not to be sniffed at, particularly when preservation is a concern. But if a Big Six publisher affirms, without equivocation, that libraries own that publisher’s ebooks, it behooves librarians to ensure that whatever licenses they are signing with vendors or aggregators do not unwittingly curtail or sign away the rights that entail from this frankly avowed ownership, particularly user exceptions under copyright law.  Are libraries doing this now when it comes to Random House titles? Do contracts contravene Random House’s laudable intent? Random House is still taking heat for its price hikes (which the company continues to adjust), but are librarians fully appreciating the import of the position the company is staking out here?

The downstream implications are potentially tremendous. The ebook economic analysis by Stanley Besen and Sheila Nataraj Kirby that ALA released in September says:

…the use of aggregators appeals to libraries because it fits the model of third-party hosting of e-resources, already well-established for e-journals and databases, and avoids the difficulties and costs of maintaining the technical infrastructure needed for hosting e-books. It also appeals to publishers because it gives them ‘greater control over the distribution and use of their content than if downloaded files were simply sold to libraries, something that is of particular concern given the size and value of the consumer market for books.’

Dye’s thinking dovetailed somewhat with this:

“While a small number of libraries have asked about hosting library lending on their internal servers, the vast majority of librarians we talk to are not interested in taking on the additional administrative work involved, which would require tremendous resources in programming, manpower, and back-end processing and bookkeeping,” he said.

But as more robust library platform experiments mature, not only Douglas County and Califa but also such pilot projects as the Massachusetts Statewide Resource Sharing Plan, endorsed by the Massachusetts Board of Library Commissioners (MBLC) on October 4, then technical impediments and burdens may lessen, the trustworthiness of library managed platforms may grow, and the wise library will be the one that did not sign away its rights for the sake of convenience.

Robert C. Maier, the director of MBLC, said that in discussions about a statewide ebook platform Massachusetts librarians were very clear that they wanted to own the content.

“Our primary reason for wanting ownership is to assure that the content could be migrated to a different platform if necessary or desirable in the future,” he said. “Our primary motivation in this project is to solve the resource sharing challenge by being able to circulate e-content to any resident of the Commonwealth from a common collection. We welcome Random House’s clear statement that they consider their ebooks to be owned by the purchasing library.”

Random House already does not object to libraries moving their ebooks from one platform to another, the crux of the dispute between Jo Budler (Kansas state librarian) and OverDrive. Here’s Dye:

We work with several library service vendors who have met our systems and security standards, and are authorized to act as library lending wholesalers for our books. If a library wants to move its collection from one authorized wholesaler platform to another authorized wholesaler platform, we don’t see any reason to object. A number of libraries have already asked about this – for prior permission to move their titles – and in every instance so far, we have said yes.

To appreciate why it is important libraries not sign away this right simply imagine what would happen if Amazon were to purchase OverDrive, and then shut it down.

If libraries carefully ensure that ownership of their Random House ebooks remains uncompromised, then what is there to impede First Sale ramifications such as interlibrary loans or even library ebook sales? The Connecticut white paper notes:

Although this isn’t an immediate issue, the current licensing environment restricts libraries and library Friends groups from reselling ebooks donated by individuals or by the libraries. Funds raised through these book sales are a major revenue stream for supporting many public libraries. While vendors may promise ownership, it is the publisher who grants it.

Yes. And one Big Six publisher is, to its credit, on the record saying it is granting ownership. That bears repeating: a Big Six publisher says it is granting ownership. Librarians should do everything possible to test the limits of this ownership and to identify specific vendor practices (or clauses) that may undermine it.
 

Michael Kelley About Michael Kelley

Michael Kelley (mkelley@mediasourceinc.com) is the former Editor-in-Chief, Library Journal.

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Comments

  1. So, my question is this: Now that Harpercollins has gone to the 26 use license model, does that mean anything bought prior to this model is owned by the library? There are clear distinctions made in reporting and purchasing styles when you buy HC titles now. The licensing language comes up before final purchase. You have to order them through a separate portal (if you’re using Overdrive) and they are reported differently both on your total items (separate line item for “licensed titles”) and when you’re looking at things like hold reports (“copies owned” is one column. licensed uses” is another column). That leads me to believe that if you purchased copies PRIOR to the new model, those are yours. HC has never come out and said this.

  2. So this means we can resell our ebooks when no-one wants them anymore, right? No? Then it’s not ownership. If you can’t sell it, you don’t own it. If you’ve agreed to terms that permanently govern its use, you have a license.

    Ownership is not always a critical part of public library service, but let’s not let vendors tell us what ownership is.

  3. Eli is right. This article needs to be vetted by a legal scholar. Mary Minow or someone else in our field who understands the legal situation. Amazon uses language like “own” and “purchase” as well, but as recent events demonstrate, you dont own the material.

  4. This is why I always sign-up for ANY and ALL webinars on First Rights, Copyright Law, and Digital rights and laws. Digital rights and “software” rights are SO different than an actual in your hand item that can’t receive updates with the tap or click of a button.

  5. Ann Perrigo says:

    It’s very difficult for those of us in smaller libraries to keep up with all that’s happening. Does this mean that RH titles we have ordered through OverDrive belong to us? Is there a different way to purchase them rather than through OverDrive? If we purchase through a source other than OverDrive, are the prices the same? I’d very much appreciate clarification on these points!