February 17, 2018

Warner Home Video Imposes 28-Day Wait on Libraries for Distribution of Theatrical Releases

(Correction: The new “Harry Potter” film debuts for consumers on November 11, and the December 9 release is for libraries. This story has been revised from an earlier version to reflect this correction.)

Warner Home Video has recently changed its policy to prohibit the distribution of theatrical releases to libraries and home video rental stores until 28 days after they release the movie for sale at retailers, according to a letter being circulated by Midwest Tape, an Ohio-based wholesaler to libraries specializing in videos and audiobooks. The new policy applies to all public libraries and rental outlets such as Redbox, Netflix, and Blockbuster.

In addition, the rental version of DVDs and Blu-rays will not contain bonus features or extras, but it will have a cheaper price, amounting to an average of $4 per DVD title and $8 per Blu-ray title.

“This is a thin-edge-of-the-wedge issue,” said Randy Pitman, the publisher of Video Librarian, a video review magazine for librarians. “Warner’s decision that libraries should be forced to wait 28 days before being allowed to purchase bowdlerized copies of DVDs—stripped of all extras—is antithetical to the law of the first sale doctrine, which permits wholesalers, etc. to resell legally purchased copies of media,” Pitman said.

Carrie Russell, the director for the program on public access to information at the American Library Association, said it was likely that Midwest Tape had agreed to the 28-day embargo as part of a contractual arrangement with Warner, and that would make it less of a first-sale concern.

Holds could be an issue

The new policy should affect about 12 titles a year, since it only applies to theatrical releases.

“I think the big companies like Redbox, Netflix, and Blockbuster will lobby successfully against this policy,” Bob Jones, the director of the Milton-Freewater Public Library in Oregon posted to a message board for Oregon librarians. “Libraries will be left out in the cold unless lots of them lobby together or even boycott Warner,” he wrote.

“The 28-day hold may not be a big deal in the long run but explaining that to hundreds of customers who are on hold for it in the short term is another thing,” wrote Myles Jaeschke, media collections librarian for Tulsa City-County Library, on a message board for video librarians run through the University of California, Berkeley.And the removal of additional material is a big minus for libraries,” he wrote.

However, the law gives libraries several tools to lawfully combat this kind of policy, according to Brandon Butler, director of public policy initiatives at the Association of Research Libraries.

“The first sale doctrine allows libraries to buy DVDs lawfully in any channel and then lend them without asking permission,” Butler said. “If a library wants to circumvent the 28-day delay or buy a full-featured DVD, for example, there is nothing to stop them from buying DVDs from regular stores like Amazon or Target,” he said.

Policy will affect new Harry Potter movie

According to the Midwest Tape letter, Warner may seek to enforce its new policy by auditing its distribution partners’ sales and require retailers, like Amazon or Walmart, to limit the number of copies of a new release that can be sold to a single customer. It wasn’t clear how this would work.

“A small library buying a copy or two at the local Fred Meyer may well fly under the radar, unless you are using a library purchase order or credit card,” wrote Cindy Gibbon, a senior library manager at Multnomah County Library on the Oregon librarians’ message board. “But it sounds like those of us who buy in large quantities will indeed be limited to the rental version and the 28-day delay, since our suppliers won’t want to be embargoed by Warners. I guess the carrot is supposed to be the price reduction,” she wrote.

The new policy begins with the November 28 rental release of “Crazy, Stupid, Love,” with the next title being the December 9 release of “Harry Potter and the Deathly Hallows, Part 2.”

“Many public libraries serve an increasingly larger economically disadvantaged constituency, who will be unfairly penalized by Warner’s decision to withhold certain titles for libraries for an extra four weeks after street date,” Pitman of Video Librarian said. “Many people simply can’t afford to plunk down $26.98 for the new ‘Harry Potter’ movie—one of the first titles to be affected. That’s like us telling patrons that the new Stephen King novel will not be available to reserve until 28 days after it hits stores,” he said.

Although stripped down, cheaper versions may be attractive in some ways, there is concern that a bare-bones rental version may hurt research.

“For obvious reasons, research libraries will want to acquire the fullest versions of DVDs and Blu-rays, with the most possible information to support future scholarship,” Butler said. “I can’t imagine the studios will refuse to sell these full versions to libraries, though of course they may charge more,” he said.

Some librarians are increasingly concerned about the growing number of ways in which libraries are being hedged in.

“What I think decisions like Warner Brothers imply is that they don’t want the library of the future (or perhaps even a current library) to loan feature film content,” Mary Hamlin, a media collection development librarian at Tidewater Community College in Portsmouth VA, wrote on the video librarian message board. “What is going to happen when we really cannot count on copyright anymore, when all of our media is licensed, when all of films are streamed? I am really afraid that libraries are becoming second class citizens of content delivery: we won’t choose the content, the content/the distributor, will choose to choose us,” she wrote.

Officials from Midwest Tape declined to comment, and Warner did not reply to an inquiry seeking comment.

Michael Kelley About Michael Kelley

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