IA Events and Trial Developments

The Internet Archive is hosting some virtual events of interest.

The first, on October 12 (10am – 12pm PT—so 1 to 5 Eastern) , is Library Leaders Forum 2022. “Join experts from the library, copyright, and information policy fields for a series of conversations exploring issues related to digital ownership and the future of library collections,” including “new community developments with controlled digital lending. . . the new projects that we’re gearing up to support in 2023 and beyond.”

[Those new to the IA might also want to attend the October 11 Empowering Libraries Through Controlled Digital Lending: The Internet Archive's Open Libraries Program. Also, there is also an in-person Library Leaders Forum on the 19th]

On October 19, either in-person or virtual, is Building Democracy’s Library. “Why is it that on the internet the best information is often locked behind paywalls? Brewster Kahle, founder of The Internet Archive, believes it’s time to turn that scarcity model upside down and build an internet based on abundance. Join us for an evening event where he’ll share a new project—Democracy’s Library—a free, open, online compendium of government research and publications from around the world. Why? Because democracies need an educated citizenry to thrive.”

Speaking of Democracy’s Library, developments have occurred in the trial of one of the closest things we’ve seen so far to that, the IA Open Library. As noted by Andrew Albanese in Publishers Weekly (without whose work most of us would be less informed and the poorer for it), the AAP/Publishers and IA have traded dueling reply briefs to the others claim for summary judgement (that is, settling the matter without trial). Readers are encouraged to read the article, which nicely summarizes both sides. Briefly (very much so!), the AAP /Publishers argue that Controlled Digital Lending (CDL) isn’t legal, that the IA doesn’t even follow CDL properly because it has sometimes allowed access to more digital copies than exist in their backup print archive (violating the “owned to loaned” ratio), that the IA should have to pay damages, and that Congress alone should determine the future of digital books (I’m sure they’d like that, considering how much they pay in campaign donations). The IA responds that CDL is legitimate extension of libraries’ normal operations, that the publishers are not harmed by digital lending of what libraries legitimately own in print than they are by print lending, that the publishers are trying to restrict libraries to inefficient [and they might have added ruinously costly] modes of lending order to encourage patrons to buy rather than borrow from the library, and that the low quality scans used by the IA are not in competition with licensed ebooks.

The next round of replies is due October 7.

It seems unlikely this case will be settled in summary judgment. The judge is likely to want to see specific examples of CDL and more evidence presented in court. Could this one eventually reach the Supreme Court, since it has come differences with the Redigi precedent cited by the AAP/Publishers? Maybe, in many years. With the court’s current makeup, that might not look good for libraries. No matter what, to many libraries are using CDL well, including for ILL, for us to want to see the AAP/Publishers’ arguments prevail. Somehow, CDL must emerge as an allowed legal practice, even it it takes a defendant different than the IA. The alternative is, as the IA attorneys have said, a “world in which they [publishers] had complete control over library [digital] lending and could charge libraries for each additional circulation of a book the library already bought.” In short, a world libraries cannot afford, literally and figuratively.

How Does the Proposed PRH/SS Merger Affect Libraries?

Todd Leopold of Library Journal has written a piece exploring how the proposed merger between Penguin Random House (PRH) and Simon & Schuster (SS), strongly opposed by the U.S. Department of Justice, might affect libraries and writers. The piece is well worth a read but will require non-subscribers to create a free login.

In the piece, “Josh Berk, executive director of the Pennsylvania’s Bethlehem Area Public Library. ‘That’s where my first thought goes: Here comes another price hike’.” He adds “sometimes it feels like we’re an afterthought. Publishers have a good partner in libraries. A little extra consideration would go a long way.” As the piece points out, PRH and SS currently have very similar terms. Indeed, PRH has slightly more favorable prices and a rep has said “There are no plans to change licensing agreements with libraries after the merger is complete.” But as Stephen King points out later in the article, “Consolidation is bad for competition,” he said. (Incidentally, Mr. King, though of course you’ll never read this, are you aware that your most recent audiobook will cost libraries $130.00 for a two year license? It s getting well out-of-reach for many libraries. You’ve proven yourself a great writer, and all of us would love to offer your works, but maybe you could talk with your publisher about giving libraries a more print equivalent deal?) Berk has good reason to be concerned if the deal goes through. PRH and SS may keep the same licensing terms, but that’s no guarantee prices won't go up. Indeed, as the article points out in referencing an RF post, prices are already creeping up across the board. The ALA has been sending representatives to the publishers most years since at least 2014 to talk with the then Big 6 and terms, including costs, have done nothing but get worse. If we see a Big 4 or 3 or 2 or even 1, it seems reasonable to expect price jumps, even though the Bigs have obviously never before competed for library business. We are their reliable cash cow, having to license works due to public demand, a ready source of what amounts to a government subsidy no matter what outlandish prices the licenses might be.

In the piece, Carmi Parker notes “that libraries can adjust with the times. Indie publishers have been more flexible with their ebook arrangements – one, she observed, sold their ebook for $20 with a lifetime license—and if similar measures can be put in place with the large firms, it can benefit all sides. “ But she adds, “the big publishers have to bend a little.” Over the last 18 months, she said, her library system’s costs jumped 30 percent while usage remained flat. Something will have to give. “I believe at this point that libraries must begin to vote with their dollars,” she said.”

Hear hear!

But Parker’s mention of the Indies raises a troubling point. The DOJ case was based in part on established authors being disadvantaged by making less money. Even if the resulting behemoth keeps on many SS employees, will there still be as many people reading manuscripts? Will as many contracts be offered? Will as many new voices, especially diverse voices, get the Big 5 (or 4 or whatever) boost to become established? Better license terms for libraries would certainly help us foreground new voices. PRH has pledged to diversify their offerings, and perhaps they can under a merger, but libraries should worry the overall effect will be to see less diversity and the further pushing of the best seller and commodification of the book. Parker’s emphasis on the smaller publishers and Indies may be our only viable route to sustainable collections. But it is difficult for us to drive new readers to new authors without the publishers.

Overall, if the merger goes through, the devil will as always be in the details of license terms and availability of diverse titles. We would have to see what happens. This merger nevertheless seems a bad idea from the library perspective. The DOJ has at least presented a good case.

An NPR Interview: How Should [Library] Ebooks Be priced?

The NPR’s Indicator From Planet Money recently released a podcast about library ebook lending and the Internet Archive use of Controlled Digital Lending.

One person interviewed is Carmi Parker, Whatcom County Library System ILS Administrator. [Disclaimer—Carmi is a member of RF’s Working Group and instrumental in library digital content advocacy.]

You may listen to the podcast here and instead (or as well) see a transcript here.

The podcast’s hosts banter can sometimes be a little trying, but overall they do a good job exploring the issues. I wish they had been more rigorous in their exploration of some points. For example, AAP counsel is able to say "the Internet Archive is not a real library. It only masquerades as one.” The AAP doesn’t have any authority to define what libraries are; his unsubstantiated claim, which should be dismissed out-of-hand as mere legal posturing, should either not have been included or at least an explanation of what a library IS should have been demanded. On the matter of publisher ebook prices, however, the presenters present Carmi ‘s point faithfully and well.

RF encourages a listen or review of the transcript And the more attention paid to the plight of libraries and library readers, the better!

Costs Are Rising (What A Surprise)

My fellow librarians concerned about how exploding licenses at high costs are making our digital collections unsustainable, we have further bad news. Costs are going up. It isn’t the case with every publisher, but the overall trend is clear. One librarian in our Working Group noted that the price-per-unit for HarperCollins titles had increased 24% for ebooks and 6% for eaudio. So much for HC being our best deal, as they seem to be joining the race to the bottom. Another colleague provided still more data:

In ebooks, PRH’s 24 month cost is slightly down (offset unfortunately by an increase in the 12 month price). That at least is good news. One of Hachette’s imprints has decreased 5.56%, while one Macmillan imprint has decreased a nice 8.83%. That’s pretty much the end of the good news, however, with overall costs going up by over 15%. HC leads the pack with a 31% increase in price-per-unit cost.

In digital audiobooks, the beat (as in, let’s beat up the libraries) goes on in both metered and perpetual access, with the Recorded Books and Tantor posting huge percentage increases.

Granted this is a limited survey (so far—we’ll be adding more results). It occurs in a time of inflation in many prices. But have costs for producing digital media really escalated that much? And this library works with a large collection and its results are likely representative, as we shall establish with more evidence. It is hard to avoid the conclusion that the publishers are treating libraries, which face even more patron pressure to provide titles in times of economic difficulty, as a cash cow

RF to the publishers: if you aim is to lower library circulation, keep it up. You’ll succeed. How happy will you be with less author/title discovery? Will it really lead to more individual sales? Will more reading result?

Doubt it.

Maryland Ebooks Lawsuit Over and A Save-the-Date

As Jim Milliot reports in an article in Publishers Weekly, the Association of American Publishers (AAP) has filed that it will not seek costs and legal fees from Maryland in the lawsuit over the state’s library ebook bill.

Milliot notes that the AAP says “its decision was limited to this particular case, and that it ‘expressly reserves all rights, claims, and remedies that may be applicable with respect to any future legislation or other matter’.”

Thus ends—for now— Maryland’s effort to get library ebook costs that approximate the generally far lesser costs that libraries pay for print. It has been a valuable learning experience for those of us in libraries seeking fair terms. The law’s language—borrowed from bills previously brought forward in New York and requiring the publishers to offer fair terms—was based on a a still earlier effort to put forward legislation at the federal level. At the federal level, this language would not have been subject to a preemption challenge. A different ruling was possible in the Maryland case, but this ruling, which pretty much states that publishers/authors may charge whatever they like and license (or not) to whomever they like, is the one we have to live with. Clearly a different tactic will have to be used to used. Massachusetts—the only state with a bill still pending—has changed to make the licensing a matter of fair consumer law, with libraries not able to engage in unfair licenses. Maryland advocates are working on a draft based on state contract law. Libraries getting state funds cannot enter into unfair contracts, with the term “fair” defined in the potential bill. Neither bill can be challenged on the basis of federal copyright laws preempting them. States are perfectly justified in regulating how state funds are spent. The publishers are not compelled to change their prices. They will, however, have to negotiate fair terms if they wish to do business with libraries in these states. We shall have to see if these efforts can become law and what effect they will have if they do. It is important for libraries that we continue the effort. The ReadersFirst Working Group is gathering evidence that Big 5 library prices are in many cases going up. Our ability to acquire and sustain rich digital collections, already challenged, is becoming less and less.

It would be churlish not to offer the AAP congratulations. As my colleague Carmi Parker has pointed out at length in a position paper, the AAP has made some false claims in their public statements about the Maryland law. They are doing their job, however, and have prevailed in this Maryland case. It is gracious of them to let the matter rest. I wish Maryland had won and the publishers had negotiated (we never intended to apply the law). But we in libraries are not sore losers. For now, I’m glad the matter is over and we can concentrate on future efforts.

Speaking of library ebook laws, plan on attending a DPLA/COSLA/ReadersFirst webinar on the topic on September 27, 4 pm Eastern Time. We’ll have a great panel:

• Kyle Courtney, Copyright Advisor, Harvard University and Co-founder and Board Chair, Library Futures

• Alan Inouye, Senior Director, Public Policy and Government Relations, ALA

• Brianna McNamee, Director of Government Relations and Advocacy, New York Library Association

• Irene Padilla, Maryland State Librarian

Register here.

A Study of the Library Digital Content Ecosystem in 2022

In order to complete their University of Washington MLIS degrees, Megan Rosenfeld and Erin Andreassi have completed a study of the state of library ebooks in 2022. This is a dauting task: between legislation proposed or passed but legally challenged, new or changing license models and content, and continuing advocacy by librarians, publishers, authors, vendors, and lobbyists, against a backdrop of the social and library usage changes wrought by the COVID pandemic and economic inflation, the sector is complex and in flux. The authors have tried to present the various views accurately and objectively. They interviewed a wide-ranging group of influencers, but (perhaps not surprisingly but nonetheless disappointingly) they found librarians and writers more forthcoming than publishers. (Disclosure: many members of the RF Working Group were interviewed.) The result is a clear, carefully presented, and sound overview of the issues we face making digital content sustainably accessible under challenging circumstances in early to mid 2022. It will be useful in the future as a snapshot of this moment. The author have graciously allowed RF to post the study un a Creative Commons License. For that, Erin and Megan, we thank you! Questions or comments may be directed to the authors by emailing ReadersFirst. The paper, “Digital Books in Libraries: Moving Towards a Sustainable & Equitable System of Access to Information,” may be downloaded in PDF here: Digital Books in Libraries We have also posted this paper in our Projects/Studies page for future views here.

LF Amicus Brief Supporting CDL in Hachette Et. Al. v IA

Library Futures has filed an amicus brief (Friend of the Court) supporting the practice of Controlled Digital Lending in the HACHETTE ET. AL V INTERNET ARCHIVE lawsuit, in which the American Association of Publishers (AAP) and Hachette, Harper Collins, Wiley, and Penguin Random House are suing the Internet Archive (IA) over its Open Library’s use of Controlled Digital Lending (CDL).

That the publishers might think the relatively poor quality scans on the Open Library—especially problematic as a user experience on smart phones—are preventing libraries from licensing their (admittedly generally outrageously priced) commercial epubs is farcical. That they allege harm because readers turn to these scans instead of buying is laughable. They probably lose more in torrent site piracy in a day than they have lost legitimate reader sales in the decade the Open Library has been around. But suing they are, and harm they claim. And all libraries have a stake in CDL, hence the amicus brief.

You can read/download the brief here. Kyle Courtney and Juliya Ziskina are its authors. You can also see photo of the brief being hand delivered.

Every Library Institute (ELI) has joined in support. Read their nicely detailed explanation here.

ReadersFirst has also joined.

Here are some excerpts from the brief.

• “CDL uses technology to effectuate a library’s customary mission to acquire, preserve, and provide community access to books for library patrons. Simply put, CDL is a different way of utilizing the centuries-old method by which libraries have loaned the books on their shelves for the public to read.” Yes—the books are paid for, the authors and publishers have been paid already, and the digital scans are shared in one owned/one loaned under fair use with digital rights protection.

• “As technology evolves, libraries continually adapt their services to provide access in innovative ways to better serve their patrons. Each time libraries embrace access-expanding innovations, the courts have repeatedly acknowledged how these practices benefit the public despite publishers’ objections.” Yes—we need to serve where people expect us to be. The publishers are expanding their power under copyright in the digital realm to erode and overturn library’s long-standing right to serve the public. This is to ignore copyright’s dual aim of protecting authors AND advancing knowledge.

• “CDL involves the digitization of paper books, which results in inferior graphic quality and differing customization features. This makes it more likely that the book will be used out of necessity, or only briefly, rather than supplanting the market for the work. The low quality scans (in addition to the digital rights management protections) also make it less likely that downstream bootleggers will make copies of the work. The Plaintiffs claim that CDL serves the same function and purpose as their business. However, despite both disseminating the contents of books, their objectives are substantially different. As with traditional library lending, CDL primarily serves those who only need temporary access to a work or lack the means to purchase the work. Libraries have no profit goals and are motivated by education, the dissemination of knowledge, and preservation.”

CDL allows for fair sharing through Interlibrary Loan. It allows for preservation. It helps those marginalized by income to be informed readers. The existing licensing from these publishers (Harper Collins, it must be noted, is the fairest) directly prevents the first two of these three core functions, and greatly complicates the third. The publishers and the authors have been paid for the works under consideration. In short, as eloquently stated in the brief, “CDL is a feature of ownership, not a substitute for licensing. It is not intended to replace or circumvent a library’s existing eBook holdings, but it can serve as a powerful tool for bridging the gap between print and electronic resources for readers and researchers.”

Librarians must hope that the practice somehow emerges from this case as allowable.

Interestingly, the attorneys for the publishers did not consent to this amicus filing. Why? LF, ELI, and certainly RF members have years of experience in library digital content. We can discuss the practice and effects of licensing, the use of CDL, and the ways that libraries serve the public with true expertise. Shouldn’t the judge hear from library experts? It seems only fair.

Poems for the Ages from Audible

Every once in a while it’s nice to jump off my soapbox, leave off scolding the publishers, and simply celebrate a nice development.

On June 17 of this year, I licensed the first Audible audiobook title for Maryland and, I believe, the first Audible book ever licensed by a public library. It came, of course, through the Palace Marketplace.

I wanted it to be something memorable if not necessarily high circulating.

I’m delighted to report that Classic Love Poems as read by Richard Armitage (you know, Thorin Oakenshield in Peter Jackson's The Hobbit trilogy) is at once mellifluous but passionately read and sounds great via the Palace app. An Audie Award Finalist for Best Male Narrator in 2016 with pieces from Shakespeare, EB Browning, George Eliot (mercifully not T.S., who didn’t much go in for love as a theme, and when he did it was usually pretty sad), Shelley, Byron and others, it’s a listen for the ages.

I plunked for the 2 years unlimited circs but one-at-a-time model. At $25, it was a nice enough deal. I would have liked a perpetual access model, but this cost isn’t at all bad. I won’t be surprised to see it get some circ, especially at Valentine’s. I thought about the 40 circ (10 simultaneous model), but decided two years would do for now.

To those of you wondering about the schedule for Audible in Palace, titles will roll out as IBNs are added and the file formats are worked out. Some 100 titles are available now. Expect 20,000 within a year or two.

If you live in Maryland and have a card to a Palace library (there are nine of us so far), check it out. Will you like it? Let me count the ways.

The Internet Archive Suit Enters Summary Judgement Phase

The lawsuit by the Association of American Publishers (AAP) and four large publishers against the Internet Archive’s (IA) Open Library is entering summary judgement phase, in which both sides present their best arguments and judge determines if one sides should prevail without going to trial. The suit, of course, has major implications for library practice.

Publishers Weekly’s Andrew Albanese has explained the contending points. His article is well-worth a must- read for any seeking a more detailed look at the case. We shall bullet point here before offering a quick summary that, as will surprise nobody, argues for the IA position.

Attorneys for the AAP/Publishers argue as follows:

• That the IA is not a library but only “Masquerading as a not-for-profit library.”

• The IA shares fulltext books illegally, including 33,000 available by license from the publishers by license, without compensating the authors and publishers, with no legal precedent for saying this is fair use.

• Controlled Digital Lending (CDL)—digitizing a print work and sharing the digital copy as if it were print while withholding the print to keep a one-one “owned to loaned” ratio—was invented to justify the practice and is not legal because it undermines copyright and inhibits the creation of new works, even if the IA were following it, which the IA is not doing.

• The commercial ebook market is healthy and growing but threatened by the IA, which is stealing from authors and publishers, creating market harm.

Attorneys for the IA argue the converse:

• Authors and publishers are in fact compensated—the print works are legitimately procured by purchase or gift (thus purchased at some point).

• CDL replicates libraries’ analog work in the digital realm, and this work is threatened by the publishers’ digital practices. The publishers will not sell ebooks, though they have been asked, but insist on licensing.

• It is the publishers in fact using digital in fact to subvert the aim of copyright, preventing libraries from owning content and requiring licensing over and over, preventing preservation and inhibiting copyright’s avowed purpose of promoting public knowledge and good.

I’m a librarian and admittedly biased. This suit is litigating something that libraries have struggled against for years now: the publishers’ insistence that what they and authors make in print sales is somehow an invalid amount in digital, and that digital costs should be higher—even usuriously so in the case of many large publishers, at many times the price of print. Their stand seems based on two points: that ebooks never wear out and that they are too easy to get—there is no lending “friction.” Both points are invalid. Libraries have offered to pay more for perpetual access, but that option is not available for any ebooks from the Big 5. We are instead forced to license as much higher costs. Why? As for friction, what a farce. The publishers create plenty of friction, with high demand titles often having a huge waiting list because libraries cannot afford to meet demand. Obviously, the hope is using libraries to jack up sales. In any case, this argument ignores library patron behavior. Nearly all our users, even as the pandemic continues and becomes endemic, have no problem going to libraries and checking out dozens of print books at once. Going to a library isn’t “friction” for our readers. It’s joy.

What is clear is that publishers are exploiting DMCA with a false dichotomy between print and digital to take libraries and our readers for a ride. It is hard not to agree with the IA’s attorneys: "What the publishers who have coordinated to bring this lawsuit hope to obtain from this Court is not protection from harm to their existing rights. Instead, they seek a new right foreign to American copyright law: the right to control how libraries lend books. Such an outcome would disrupt libraries’ longstanding right to lend the books they own and their ability to preserve and share much of our cultural heritage in digital form." It is hard not to doubt that these same publishers, motivated by profit, would somehow charge per read and restrict print lending, if only copyright didn’t prevent them? We can only hope that the judge in this case will strike a blow for library readers and say that the generally poor quality scans of titles in the IA are no competition for the publishers’ (generally) high quality digital products, are legitimate, are paid for in their print form, and should be allowed to be used for the sake of reading and preservation. Any other outcome is to contribute to a future in which libraries and readers own nothing, the market is controlled to the detriment of those without ample means, and every read costs a fee. The balance that copyright is supposed to provide is now tilted too far away from the public good. The system is out of whack. Rulings—and yes, laws—are needed to restore a fair balance. Publishers and authors have survived for centuries under fair print pricing. Digital shouldn’t change that. Books are still books.

Library Futures’ State Ebook Bill Template and AAP Out For Blood

Library Futures’ Kyle Courtney and Juliya Ziskina have released a Policy Statement and Draft eBook Legislative Language. They have helpfully summarized the state of the various ebook bills and provided a path forward with bill language that differs from the language in the Maryland law that did not withstand a court challenge.

While a different judge might rule differently on laws with the Maryland language, it is good to see an alternative that learns from the Maryland experience. That law was based on a draft that would have worked at the federal level but came a cropper as a state law, at least in one ruling. So, how best to let state bills work—and until libraries can get federal legislative traction, it will be up to states to lead in addressing the unfair terms we get from many publishers.

Please go straight to the source:

Library Futures supports legislation that aims to equitize the eBook marketplace. To that end, we have developed model legislative language that avoids the problematic Maryland language and that we therefore believe will hold up against legal challenges. In short, we propose model legislation grounded in state consumer protection, state contract law, state procurement law, and contract preemption. Our policy statement document explains the legal rationale behind our proposed model bill. You can also view an interactive map of current legislation and sign up for updates on Library Futures’s policy activities. Thank you to our community of experts for their edits, feedback, and input into this statement and bill, and thank you to Readers First and the community of library advocates who have worked for equitable ebook legislation in their states.

We look forward to working with you to ensure that libraries can fulfill their mission of preserving and providing broad, open, non-discriminatory, and equitable access to information and reading materials to the public. If you are interested in learning more or getting involved, please stay tuned for a webinar in early August. Until then, sign up for updates!

Libraries will not be own their own if they wish to move forward using draft language. Library Futures and others are standing ready to help.

Those seeking still more information to help talk with legislators would do well also to see ReadersFirst’s Elending Position Paper, which sets out the inequities libraries face in great detail and also undermines some of the false claims made by opponents of state ebook efforts, and our Publisher Price Watch, your library consumer guide to publisher charges.

In other news, as reported by Andrew Albanese in PW, the AAP is seeking $300,000 in legal costs from Maryland in that legal matter. Since the AAP itself avoided paying costs in their losing effort with Georgia State University, one might think they wouldn’t have the gall to ask. One would of course be wrong. This seems a pretty transparent effort to stop activity in other states. It won’t work. First, let’s hope the judge sends them home without money. Second, many states remain undaunted. If one bill becomes law, however, the publishers may decide not to deal with libraries in that state under the bill language set out in Library Futures. If that happens, all libraries will need to stand together for the good of our readers.

It is all-too-easy to see these efforts as anti-publisher and anti-author. They are not. Rather, fair prices could create an inflection point, when libraries begin to allocate more to digital. The publishers and vendors will get more, not less. More authors will see royalties—and new or less best-selling authors would benefit, especially the diverse authors that the publishers are saying they wish to promote. Together, we could extend reading, fight piracy, and expand the next generation of readers. It is of course hazardous to generalize about any profession, but I’d stake a fair bet that most librarians are not naturally eager for a fight. When fighting for our readers, we are fierce. We won’t quit. State efforts will continue. Still, I invite the publishers to talk. Give us 26 loans or two years metered at print retail prices, and preferably a perpetual option at say three times that amount and RF, at least, will stop ebook bill advocacy and see what happens. Macmillan, how about you? You tried an “experiment” in 2019. How about a one year experiment now on these same terms—it’s still a better deal than you get in print. Harper Collins, you generally charge retail plus 15%. Try dropping the 15%, adding a perpetual at higher cost, and see what happens? We could end the rancor, increase reading (and arguably consumer sales), and concentrate on the real need—growing and keeping readers.