Three key moments when publishers and platforms tried to use the digital nature of ebooks to take away traditional library rights–and how libraries fought back.
David Moore 00:00
Because we believe eBooks are books, and I'll emphasize that again, we're interested in working collaboratively with libraries and independent publishers to build up ebook practices, because eBooks are books.
00:19
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Laura Crossett 00:29
Welcome back to A Podcast About Ebooks from Library Futures, a three part miniseries that's going to tell you how ebooks came to be, what happened when they entered libraries, and what we can do about the problems that ensued. This is episode three, bad landlords and the movement to take back our rights. I'm Laura, Communications Manager at Library Futures,
Mary Needham 00:49
And I'm Mary, intern at Library Futures.
Laura Crossett 00:53
And that was David Moore you heard at the top at the 2024 Internet Archive Library Leaders Forum talking about something I think most of us believe – a book is a book is a book, regardless of format. Back in episode one, Professor Dorothea Salo told us a bit about the things that competed for ebook status and the history of ebooks. And in the last episode, we talked with library consultant Robin Hastings and a few other librarians about what I call the ebook format wars and what the early days of ebooks were like,
Mary Needham 01:26
Right? It sounds like it was hard to get to a place where everyone could get a library ebook on whatever device they had.
Laura Crossett 01:33
Yeah, and some wouldn't say it's still hard.
Mary Needham 01:37
So Laura, when we left off last time you were telling me about when ebook restrictions first entered libraries.
Laura Crossett 01:42
Yeah, so we're going to outline three big moments when publishers and platforms like OverDrive have tried to say that ebooks are different and that they should be governed by different rules than the ones that have always covered physical books in libraries. In all these cases, and there are many more, so you should definitely check out Mary's timeline for more examples.
Mary Needham 02:04
And we'll link that in the show notes, just to say that again.
Laura Crossett 02:08
So in all those cases, publishers tried to take away digital ownership and override traditional library rights like collecting, preserving, sharing through contracts and restrictive licensing agreements. The first example comes from 2011, and here's an excerpt from a press release from the Pioneer Library System in Oklahoma that I think perfectly captures that
Speaker 1 02:37
On February 24 the Pioneer Library System received a message from our downloadable materials vendor OverDrive stating that an unnamed publisher would place the following requirements on their ebook titles. That publisher turned out to be HarperCollins. Starting March 7, the total number of permitted checkouts for any HarperCollins ebook will be 26 after which point libraries will have to purchase the ebook again.
Laura Crossett 03:04
So when that announcement came down, my coworker at the time had the idea of doing a display of books in our collection that has circulated more than 100 times, because Harper Collins was saying that a physical book would wear out after 26 checkouts. And we had so many books in that display. I did a little back of the envelope math, and at that time found out that the library had 88,680 circulating books, and 23,083 of them had checked out over 26 times. So as I wrote at the time, if Harper Collins ebook rules suddenly applied to the physical books in our collection, we'd have to replace over 23,000 books. We would have to replace over 1/3 of our collection.
Mary Needham 03:54
Wow, that is absolutely wild.
Laura Crossett 03:57
Yeah, it's crazy. But just to blow your mind a little bit more, here is a little rundown of Publisher licensing terms for library ebooks in 2012 just one year later:
Macmillan, Simon and Schuster and Scholastic would not sell or license ebooks to libraries at all. Penguin had sold ebooks to libraries but terminated its contract with OverDrive in February of 2012. So it said that libraries could retain the books that they'd already purchased or licensed. Hachette only allowed libraries to license backlist titles, so things were over two years old. And of course, Harper Collins had that 26 checkout limit. As Rochelle Hartman, who, when we heard from her last episode, she was a librarian, librarian in Wisconsin then, there was a time when library ebook collections were really digital ghost towns because of the unwillingness of so many publishers to sell ebooks to libraries at all. So. So that changed with HarperCollins, when they instituted that checkout limit. Suddenly, other publishers realized that they could override that first sale doctrine contracts and licensing agreements, that they could get away with figuring out how to charge libraries from the same material over and over and over again. So that brings us to our next big moment in 2019 which Robin Hastings, a library consultant at the Northeast Kansas Library System, described as
Robin Hastings 05:29
Going back to the OverDrive brouhaha in Kansas, when our state librarian just banned OverDrive from Kansas for a long time because there was no way for us to own the materials we were paying for. And she was just – Jo Budler was very, very adamant that we should be able to have the option to purchase these items as opposed to just leasing them.
Laura Crossett 06:03
So Jo Budler won Librarian of the Year from Library Journal for her work in Kansas, which Library Journal called quote, “a seismic move in the struggle to create a workable ebook access model for the users of America's libraries.” Basically they rejected multiple contracts from OverDrive until she won the right to transfer OverDrive titles to a different platform, and it was a huge victory at the time. That was something we weren't able to do before, but it never really took off. OverDrive has always had the lion's share of the library ebook market, and deciding that you're not going to do business with OverDrive is, you know, it's kind of like deciding you're not going to do business with Amazon or Microsoft or Google. It's just – it would make your life pretty well impossible.
Mary Needham 06:50
Wait, so what happened next?
Laura Crossett 06:52
So in the next few years, most publishers moved to licensing models that were 12 to 24 checkouts or one to two years, whichever came first. But then later in 2019 we got another bombshell. Here's NPR’s Mary Louise Kelly dropping the news.
Mary Louise Kelly 07:13
If you are someone who depends on ebooks from the library, it could take a lot longer to get that hot new book you want. That is because, starting today, Macmillan Publishers, one of the five largest publishing houses in the country, is drastically restricting sales of its new ebooks to public libraries.
Laura Crossett 07:32
So Macmillan decided to impose a two month embargo on ebook sales to all library systems. During those two months your library could license one copy of a new book, no matter how big your library or consortium was. So one copy for the entire New York Public Library system, one copy for the entire Chicago Public Library system. You kind of get the idea there.
Mary Needham 07:58
One copy that seems pretty extreme, yeah.
Laura Crossett 08:02
And the response was enormous. Multiple library systems boycotted Macmillan, and on March 18, 2020 Macmillan finally backed off. I don't know if you remember what else was going on in March 2020….
Mary Needham 08:18
Oh, right. You mean the pandemic.
Laura Crossett 08:21
Yeah, the pandemic, which, of course, had enormous effects on the world, but also on the demand for ebooks in public libraries. When patrons couldn't go to the physical library, ebook circulation soared, and really has remained up. But as you might imagine, the cost of those ebooks has had devastating effects on library budgets. In 2024 the Fairfax County Connecticut Board of Supervisors held a joint meeting with the Fairfax County Library Board of Trustees. It sounds really exciting, I know, and Diane Coan, who was Acting Deputy Director of the library laid it all out for them, starting by explaining how ebooks aren't like physical books when it comes to acquiring them for a library.
Dianne Coan 09:14
At the heart of the matter is that the electronic titles are not owned like traditional titles. Rather, they're licensed like software, and from that, all the differences flow. The first sale doctrine does not apply to ebooks.
Laura Crossett 09:30
And so she explains how contract law, as we've discussed, overrides the traditional rights that libraries have to collect, preserve and share materials as soon as they become digital, and then she gets down to brass tacks.
Dianne Coan 09:46
Publishers can choose to not sell to libraries, and they have the Audible award winner, including 2016’s Born a Crime by Trevor Noah, we cannot get on eaudio. 2024’s Audi-award winning Iliad, featuring Audra McDonald, we cannot get on eaudio. And there are other popular titles, such as Eleanor Catton's Burnham Wood that are only from Audible. They are exclusive. And while libraries literally cannot buy this ebook format, there are some inroads being made, but very few and very slowly. And referring back to the first sale doctrine, if publishers choose not to sell to libraries, there is no secondary market where we can get these on behalf of our residents. They are simply not available in that format. So in addition to setting the pricing for e books, publishers can dictate the licensing terms.
Laura Crossett 10:43
Coan then goes on to detail some of the pricing and licensing terms that many listeners will be all too familiar with, noting, for instance, that an individual consumer can buy a Kindle version of The Women by Kristen Hannah for $14 but a library ebook version costs $60 and then you have to rebuy it every 24 months. And she concludes by noting that all of this means that,
Dianne Coan 11:09
and this is where some of the seeming minutia starts, and where the concept of collection development in a digital collection is challenging. Between the pricing and the models, actively developing and maintaining a robust collection suitable for our diverse community becomes time-consuming and more difficult, and at some point it's going to become impossible.
Laura Crossett 11:36
And I will mention that if you are interested in more examples of these kinds of numbers, we've got a great post on for instance, how much Obama's summer reading list from last year in 2024 would cost your library in both print and digital forms. And we'll have a link to that in the show notes.
Mary Needham 11:55
Yeah, that's devastating. Is there anything we can do?
Laura Crossett 12:00
Well, there are a number of different projects and efforts underway. One is state level ebook legislation that uses state contract law to lay down some rules on how publishers that do business within the state have to operate. You can learn more about ebook prices and about that legislation and how you can join that fight at ebooksforus.com [and we’ll put that in] the show notes too. Another avenue is that there are still projects and people pushing for digital ownership. In August 2024 the Digital Public Library of America introduced a collection of 38,000 new books in their catalog under an adapted version of the Library Futures Principles for Digital Ownership. And David Moore, whom we heard from at the top, works with an organization called Briet, which is a platform that allows independent publishers to sell books directly to libraries and schools. Both Brietand DPLA are working on something that many librarians have long touted: our dedication as libraries and librarians to supporting not only the best sellers, but also independent voices, small publishers and really just the great diversity of literature that is out there in the world. Because there are so many books out there. We want to provide access to those best sellers from the Big Five, but we want to provide access to even more. Here's Dave Hansen, Director of Authors Alliance, at that same 2024 Library Leaders Forum.
Dave Hansen 13:32
Authors who who want their work to be read, really rely on libraries as an outlet, as a way to see their works get into the hands of people who might never have encountered it before.
Laura Crossett 13:45
Exactly, and we want those voices and stories and works out there.
13:59
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Laura Crossett 14:06
This has been the third and final episode of A Podcast About Ebooks from Library Futures. If you've heard anything that intrigues you, there's a link to Mary's excellent interactive ebook timeline in the show notes, as well as links to all of our sources. Library Futures is a project of the Engelberg Center on Innovation Law and Policy at New York University. Find us online at libraryfutures.net, where you can sign up for our low volume newsletter and follow us on social media @libraryfutures.
Mary Needham 14:35
At Library Futures, we'd like to thank Executive Director Jennie Rose Halperin and Michelle Reed, Director of Programs, including our amazing internship program. Thanks to Michael Weinberg at the Engelberg Center for his support and excellent feedback. Thanks to Library Futures intern Mia Jacobson for the quote, and thanks to Matt Whiteley for our amazing theme music.
Laura Crossett 14:57
And finally, enormous thanks to all librarians everywhere, with extra thanks to the NYU Libraries, the Iowa City Public Library, and the Dr, Martin Luther King Jr. Library at San Jose State University for providing the resources and expertise that inform our work. And with a special shout out to the Internet Archive for their work in preserving so many blog posts, news articles, podcasts and other materials that aided our research and that contained so much of the history of ebooks and libraries. And thank you to you Mary.
Mary Needham 15:29
And thank you to you, Laura, for the last time.
Speaker 3 15:31
Yeah. And thank you all. Thank you all so much for listening. Bye.
Mary Needham 15:36
Bye!
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