US Senate Finance Committee Presses Publishers on Library Ebook Contracts

From Book Riot:

Earlier this year, Fight for the Future — a group of technology experts, policymakers, and creatives — launched a tool called Who Can Get Your Book, meant to highlight the challenges of accessibility and availability of ebooks in public schools and libraries, rural areas, and other communities where these disparities create burdens to information. It is but one organization seeking transparency around ebooks from publishers, and now, the US Senate Finance Committee is pushing for more.

Finance Committee Chair Ron Wyden (D., Oregon) and U.S. Representative Anna G. Eshoo (D., California) lead the latest charge, drafting a series of letters to the Big Five publishers to clarify their ebook contracts with public schools.

Ebook contracts are notoriously tricky. For libraries, who can purchase print books and own them through their natural lifespan, ebooks come with restrictions on a number of fronts. They aren’t owned by the library and instead are licensed: at any time, the books may disappear or come with circulation limits, and those licenses come at astronomical prices. In cases where licenses can be negotiated with better terms for the library, costs only grow.

These contracts and the ways they restrict access for users have become magnified over the course of the pandemic, when the digital divide became even more profound.

As reported in December, one school district in southern California found itself budgeting $27 per student every 12 months to access the classic and widely-taught The Diary of Anne Frank. The same title can be purchased in print by a library for a one-time price and used without limit; outside of the library, the average person can purchase The Diary of Anne Frank on Kindle one time from anywhere from $.20 to $14 and read it as much as desired for that single cost.

That doesn’t mean non-library purchases of ebooks are perpetual, nor are they owned by the individual who made the purchase.

“Even readers with vast personal collections of e- and audio-books should be alarmed, as most ebooks and audiobooks are also merely licensed to those who believe they are “buying” them, leaving the door open for publishers and big tech companies like Amazon to later erase books, as well as alter what they say, down the line,” said Lia Holland campaigns and Communications Director at Fight for the Future.

Beyond the costs, not all digital material is made available for licensing by schools or libraries. Amazon exclusives, for example, keep many works completely inaccessible. Who Can Get Your Book gives points for every accessible format to a title, and uses those to grade how easy it is to borrow it. Born a Crime, the popular memoir by Trevor Noah, for example, earns a D grade because the digital audiobook isn’t available outside its exclusive deal with Audible and because of restrictive licensing agreements for the ebook.

All of these challenges have led to demand for change.

“E-books play a critical role in ensuring that libraries can fulfill their mission of providing broad and equitable access to information for all Americans, and it is imperative that libraries can continue their traditional lending functions as technology advances,” reads the letter Senate Finance Committee members sent to Penguin Random House, Hachette, HarperCollins, Simon & Schuster, and Macmillan.

. . . .

“We are thrilled to see legislators taking action for the public’s right to own and preserve all books, no matter what form they are published in. With so much of our lives happening online, the opportunity to own digital books is almost nonexistent—a stark and concerning departure from how our society interacts with paper books,” said Holland.

“Through restrictive and expensive licensing schemes on ebooks and audiobooks, publishers are acting against the best interest of authors by reducing the number of titles that libraries and schools are allowed to offer and preserve. This often means that the most successful and mainstream books are the only ones purchased, locking many authors out of income from library purchases as well as away from the vast audiences of readers that public institutions serve. We hope that legislators will take swift action to ensure perpetual access to knowledge and diverse voices for everyone.”

Earlier this summer, Maryland became the first state to pass legislation on ebook licensing. The bill, which goes into effect January 1, 2022, requires any publisher offering ebooks for sale to consumers in the state also make those materials available for purchase by libraries in the state.

In other words, exclusives would no longer be allowed to be exclusive or put undue access barriers to library materials in the state. Publishers Weekly breaks down this legislation, making it sound like Amazon remains a question mark.

Link to the rest at Book Riot

Yes, of course traditional publishers would screw up library licensing of ebooks just like they screwed up everything else with their ebook businesses.

10 thoughts on “US Senate Finance Committee Presses Publishers on Library Ebook Contracts”

  1. What this really gets into is two of the hairier, more-controversial (even within the Chicago School) aspects of antitrust:

    (1) What kind of discrimination based upon characteristics of a customer is an acceptable (as opposed to, in the nineteenth-century formulation at the root of the Sherman Act, “unfair”) business practice? In this instance, is the discrimination in terms offered to libraries — both monetary and nonmonetary terms, and even the fact of “license” versus “purchase” — an unfair business practice, and does it result from abuse of market power? If so, how much of that abuse is an unavoidable consequence of the constitutional monopoly granted to authors, and therefore outside (or at least orthogonal to) the scope of antitrust law?

    (2) When does “conscious parallelism” become a serious antitrust concern, especially when it is cloaked in the UCC concept of “commercial custom in the trade”? One example here is the rapid convergence on “25% of net” as an essentially nonnegotiable royalty term for e-books in commercial publishing. Many, and perhaps most, antitrust scholars now acknowledge that current doctrine (both US and European) improperly neglects the post hoc rationalization aspect of the “conscious parallelism” explanation, to the detriment of both “fairness” and market efficiency; this is one of those parallels to the classical/quantum mechanical paradox that economics is finally starting to wake up to.

    * * *

    Three caveats:

    (A) I don’t pretend to know the, or even some pursuasive, answers to these questions, let alone the follow-up questions.

    (B) That said, I can say that the Chicago School of economics and antitrust has the wrong answers (best example: cell phone chip architecture and adoption). So does the status quo, both here and in Europe. And the Austrian School is, if anything, worse. It’s entirely possible that there are no right answers, just some that are less wrong in many circumstances than others (but still lead to problems, especially under differing considerarions of “the market”).

    (C) There will be costs to moving from whatever “system” (intentionally designed or otherwise) we have now to a different one. Any ideal “solution” or “system” that doesn’t consciously consider those costs is not just doomed to failure, but deserves to fail.

  2. As reported in December, one school district in southern California found itself budgeting $27 per student every 12 months to access the classic and widely-taught The Diary of Anne Frank. The same title can be purchased in print by a library for a one-time price and used without limit; outside of the library, the average person can purchase The Diary of Anne Frank on Kindle one time from anywhere from $.20 to $14 and read it as much as desired for that single cost.

    So, they could have paid $14 per student, and chose to pay $27 per student? The Chicago School would recommend the $14 option. Some Chicago fans would go so far as to suggest every student doesn’t have to have a copy.

    • Those Chicago fans would be some of the ones who know little or nothing of the problems with “shared textbooks,” such as their Jim Crow history and association. The last sentence in the comment above is more than somewhat insulting and disconnected from both history and good pedagogy.

      • Bad history there, but…

        The quoted number is $27 per student, implying *every* student in tbe district.
        Surely not every student is studying that book every single year?
        Unless the sentence is sloppily written and they mean $27 per student *reading* the book or the actual per-copy price is north of $100. Otherwise tbey’re not paying double but six to eight times a reasonable retail price.

        Methinks the school district ought to consider copying the decades-old GSA COTS* practices and buy retail instead of direct from “educational” vendors. I’m sure local bookshops would welcome the business.

        If they keep on doing what they always did they’ll keep on getting what they always got. They either change or tbey’ll keep on getting gouged.

        * Ages ago the GSA authorized Federal agencies to aquire “small purchases” from GSA-contracted and local retailers, big and small via credit card. Usually under $2500 a month per issued credit card or much more via local purchase orders. The objective being to reduce bureaucratic overhead and agilize the aquisition of commodity products, and *save* money. Mail order was the original driver, evolving into an enormous online busines with government-specific web sites.

      • The Chicago folks know that in the days before eBooks humanity knew how to manage with paper. It was tough, but we managed. Text books and novels were assigned to the grade level at which they were used.

        Each September a new cohort arrived at a given grade level. They were issued the texts and assigned novels. It was a difficult, but remarkably successful system.

        The subtlety was in the recognition that a copy of a book was not needed for every student in the school, but only for the grades studying the subject material. I think a Chicago economist was awarded the Nobel Prize for discovering the system. That’s probably the genesis for many of the petty jealousies we still see.

        What we learn from this breakthrough is some Chicago fans would go so far as to suggest every student doesn’t have to have a copy.

        • I have two kids in school, and although they are the next crop of digital natives they will have nothing to do with ebooks. Homework, assignments, grading, all of this occurs online, mostly, but any real reading is done on paper. Part of this is ongoing rules regarding use of unassigned electronics in the classroom, and that seems to have colored their preferences. My daughter is reading The Great Gatsby, and when I told her she could put it on her phone she huffed at me and insisted on only using the paper copy that the school has provided, even though she spends a healthy percentage of her waking hours looking at said phone. Thus it has been for some time.

          I loaded The Great Gatsby into google play on my iPhone. It’s not bad!

    • Maybe they could stick to public domain works, though it seems that The Diary of Anne Frank should be in the public domain but for someone’s perversion of copyright law.

      • Mike, this is an elision problem: The Diary of Anne Frank is not in English. It has been translated into English, and more-recent translations are considered better both in the abstract and for teaching purposes.

        In this instance, the copyright is not in the original text, but in the translation.

        And that assumes that it’s not a “quality of reproduction” issue. For example, there are a lot of seventeenth- and eighteenth-century books available “free” through Project Gutenberg, but many of them (I’m thinking in particular of Donne and Swift, but there are a lot of other examples and not just in English) are misleading in the way they reproduce “the text.” For example, one will never spot the acrostic in one of the “footnotes” in The Battle of the Books (or was it A Tale of a Tub? they were in the same facsimile-reproduction volume I used too many decades ago)…

  3. Mind you, I use the library often, but this isn’t “who can get your book” but “who can get your book FOR FREE.” Entitled much?

    • For free and without lifting a finger.
      Free (via piracy) is trivial.
      Actual genre readers don’t really mind paying.

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