Words have to be put in context. Last week, Skip Dye, Random House’s VP of Library and Academic Sales, was quoted in Library Journal as saying, “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.” Along with many others, I had many questions about what RH meant by “own.” I wrote Mr. Dye directly, noting that the Internet Archive was able to cut a check as a registered California library to purchase books for Open Library. Mr. Dye returned my message, and yesterday we had a long conversation, running almost an hour. At the end of our discussion, I better understand how much ownership libraries have of Random House titles: Nada. Libraries don’t own anything.
As many surmised, the key phrase in Random House’s communications is “authorized library wholesalers.” In the context of the LJ article, Random House was using a definition of “ownership” that you won’t find in Webster’s dictionary, conveying rights where none exist. In fact, Random will not sell directly to libraries or library consortia, although Mr. Dye reiterated that they continue to evaluate many alternative library business models. RH’s approach in the library market is to vet potential library market distributors for auditing, accounting, security, and other business functions, and then permit libraries to acquire titles from that short list of approved bureaus. In Random’s view, libraries “own” the titles they purchase to the extent that they should be able to migrate their ebook catalogs from one platform, such as Overdrive, to another, such as 3M.
That’s very nice. It’s just not ownership. It’s licensing, with benefits. Library customers of RH titles do not have the ability to transfer their titles to an unapproved platform, such as Califa or Open Library; they cannot resell or donate their ebooks; and there is no mechanism for libraries to receive ebook donations directly from consumers. All that libraries “purchase” from Random House is a verbal commitment to assist libraries in moving their Random House ebooks from one approved commercial platform to another. This is the kind of “perpetual license” that academic libraries have traded for ownership. Academic libraries now employ licensing specialists, and see the world through the lens of contracts. In consequence, faculty have begun to develop open access models that revolutionize scholarly communication from within.
Public libraries seek a different kind of ownership – the kind that appears in the dictionary. The Internet Archive, Douglas County Libraries, Califa, and a growing number of other library systems are running their own ebook platforms, providing their own auditing, accounting, and security. We want to keep ebooks in our communities, run our own services, safeguard the privacy of our users, and be free from overreaching licensing regimes that threaten our services. And increasingly, we are finding publishers who are willing to sell to us directly, seeing the benefits of handing management of digital titles to libraries. Libraries can market e-books to the people that want them, and gather usage statistics in a privacy-protecting manner to help inform other libraries – as well as publishers – about what titles are popular, and where. These are rights and responsibilities that publicly funded libraries should not hand over to commercial distributors that must navigate between the Scylla of publishers and the Charybdis of Amazon. Readers First is an example of the larger movement articulating libraries’ desire to re-forge a partnership between publishers and libraries.
Libraries have the law we need to serve the public. It’s called copyright. It’s not perfect, and it needs to be updated, but it includes critical exceptions and limitations that enable libraries, archives, and museums to advance expression and learning. Some have said that digital content can never be sold and must always be licensed, simply because it is easy to reproduce music, books, or movies with perfect fidelity. That is a ridiculous notion, and the European Union’s Court of Justice recently agreed in a case involving the resale of Oracle software. In a landmark ruling, the Court proclaimed, “Where the copyright holder makes available to his customer a copy – tangible or intangible – and at the same time concludes, in return for payment of a fee, a licence agreement granting the customer the right to use that copy for an unlimited period, that rightholder sells the copy to the customer and thus exhausts his exclusive distribution right. Such a transaction involves a transfer of the right of ownership of the copy. Therefore, even if the licence agreement prohibits a further transfer, the rightholder can no longer oppose the resale of that copy.”
That concept of “exhaustion” is what we call the first sale doctrine in the United States. First sale is under threat, with a case that could undermine it appearing before the Supreme Court – and the American Library Association, the Association of Research Libraries, and many other organizations – including huge commercial companies like eBay – are rushing to its defense by launching the Owners’ Rights Initiative. Libraries shouldn’t be signing away rights they already have – they should be asserting their rights to buy and manage books, music, movies and other content just as they have in the past.
I am encouraged that so many of the largest publishers have demonstrated a willingness to work with libraries on ebook delivery. However, advances will come not through tepid experimentation or attempts to control digital markets, but by partnering with the most innovative and forward-thinking libraries hoping to push towards a new horizon of digital services for the communities they serve.