An ebook plan by Iris Jastram and Steve Lawson
by Steve
For obvious reasons, Iris Jastram and I have been thinking about ebooks recently. We thought that the new HarperCollins policy of setting an arbitrary limit of 26 checkouts was absurd. Librarians have lost no time in pointing out just how absurd it is, showing that most books can withstand scores or even hundreds of circulations without wearing out.
But that can be a dangerous argument to make. Twenty-six circulations is unacceptable, but you say some books can go for a hundred circulations? So it should be fine if HarperCollins sets a 100 checkout limit, right? Honestly, this is not the conversation we want to have. The problem is not that the number of circulations set by the publisher is too small; the problem is that no publisher should be able to control these aspects–really any aspects–of the library’s workings.
Many librarians say they want the library to own the ebook, not simply lease or license it from the publisher. If we are to do this, we need to recognize that it’s hard to own something that lives on a for-profit corporation’s servers, whether that corporation be the publisher or Overdrive or some other vendor. Yes, there are publishers who currently sell ebook or ejournal content outright, but how many of us host those books on our own servers? If those companies went under, how long would it take us to get access for our users up and running again? Libraries cannot afford to enter into licenses that leave publishers and vendors holding all the cards. How many books in an average library are out of print, or printed by publishers that no longer exist? We believe that the publisher should publish, and the library should own, lend, and preserve.
We also understand that most libraries aren’t interested in creating their own digital “stacks” to hold all the files that make up their ebook collections. For those libraries–probably most libraries–ebook files could be hosted by a trusted not-for-profit service. The important thing is that the books would be hosted by the library or by a site or service that is working for the library, not for a publisher or vendor.
Neither of us love the current state of copyright in the United States. We believe that copyright lasts too long, protects the rights of the creator way out of proportion to the rights of the user, and leads people to limit their uses of copyrighted material far more than necessary. The solution, however, is not even more restrictive licenses. We envision a system, like the one under which paper books are bought and sold today, that does not depend on licenses. Instead, publishers would have recourse to the same protection they have had for years: copyright.
Lastly, we think that publishers have a right and a reason to be scared that libraries lending ebooks will lead to rampant and uncontrolled unauthorized copying. (And even if we didn’t believe it, it seems that they are, and it seems that we need to address that.) Accordingly, we think there is a place for digital rights management technology (DRM) to keep users from casually making unauthorized copies of ebooks. However, this, too, we believe needs to be under the control of libraries. Libraries will be likely to use the least DRM necessary to accomplish the goal of preventing unauthorized copies–in fact, it wouldn’t “manage” “digital rights,” it would simply be copy protection. Patrons could trust that there would be no library “rootkits” on library-loaned ebooks. The current state of DRM for library loans is incoherent and confusing for librarians and patrons alike. Imagine having separate loan and photocopying policies for the different print books in a library’s collection.
Phew.
Those are our main ideas. The result is a plan for libraries to buy, lend, and preserve ebooks which looks like this:
- Libraries will purchase e books from publishers or other sources. Libraries will not license ebooks.
- Licenses are not necessary. The entire process will be based on copyright. The publishers’ control over the ebook ends the moment it is sold to the library. This does not mean that the publisher loses the same rights it has today to sue for copyright infringement and damages.
- Most libraries will employ a third party to be responsible for both access to and preservation of ebooks. Some libraries–probably very large public libraries or research libraries–may prefer to go it alone rather than contracting with such a service. In either case, the entity that actually keeps the files, the loan policies, the patron information, and so on, is either the library or a group working only for the library, and not for a publisher or vendor.
- Most libraries will choose to add DRM to ebooks in the form of copy protection in order to satisfy publishers’ desires not to see unauthorized copies proliferate. Copy protection that is acceptable to libraries will be largely invisible, platform-independent, and will serve only to prevent the creation of additional complete unauthorized copies.
- Copy protection must not interfere with readers’ rights to fair use.
- Copy protection will never be applied by the publisher, but by the library, or by a third party hosting the ebooks under contract from the library. When dealing with paper books, we don’t allow each publisher to determine different check-out and photocopying policies for each book. We set a single policy to encourage copyright compliance for all books in the collection.
We can’t pretend this is the final word on ebooks; we aren’t even sure we are the first to propose such an idea. We know that embracing copy protection–however limited, however under library control–will be unacceptable to some librarians and activists. While we have tried to look at things from the publishers’ point of view, we realize they might find a plan such as this to be laughable.
This plan isn’t perfect. But we think it’s progress.
[Thanks to Marianne Aldrich for suggesting that it is “copy protection” rather than “digital rights management” that we are talking about.]
bevedog 
[…] Steve Lawson and I were trying to come to grips with what an actual workable plan for ebooks in libraries might look like (something that doesn’t involve arbitrary and ridiculously low check-out limits, a la HarperCollins). And we hatched a cunning plan, which we’ve published over at Steve’s blog: An ebook plan by Iris Jastram and Steve Lawson […]
This sounds like the best idea yet, which means, of course, they won’t even consider it. However, the readers and even some of the publishers feel it was a poorly thought out idea on HC’s part, and alienated exactly the wrong people at the wrong time. But no one has a very good idea what to do with ebooks. One (small) publisher wants to license them like “pay per view”, so more patrons could check them out at a time. No one else is thinking about archival keeping. And I’m not that certain that it’s possible to keep ebooks archivally. It’s electronic, but will it stay true, without degrading? And then there is the issue of the price…And the othe issue no one has really talked about–a publisher telling us who can have a library card!
Steve, I don’t know if you’re aware– but this is essentially what Jamie LaRue (http://jaslarue.blogspot.com/) at the Douglas County Libraries is trying to put into place. I think it’s worthy of exploration….
[…] An ebook plan by Iris Jastram and Steve Lawson. […]
I wonder if the third party could be the Digital Public Library of America? I’m going to send an extract of this post to the DPLA mailing list. Nice job, Iris and Steve!
Cathy, thanks–I’m sure we’ll bring up more questions than we answered. As for archival electronic publications, I’m no expert, but I would say that if we can’t master that, we are going to have a huge cultural, political, and economic problem regardless.
Matt, I’m familiar with Jamie, but I hadn’t been reading his more recent posts. Thanks for the pointer.
Peter, thanks for the compliment. Iris and I had discussed the DPLA a little, so I’m interested in that idea. We didn’t want to peg our plan to any particular existing project, though. I’ll watch the list archives to see what people say.
[…] I don’t think there is anyone else in the world with the same name as me. That isn’t true of Steve Lawson (bassist), who posted a tweet earlier today that put me onto an interesting post by Steve Lawson (librarian) about libraries and eBooks. […]
I also, was not aware of Jamie’s work. And I’m glad you brought up the DPLA project, Peter. In addition to that, I know that Library Renewal has been thinking about similar issues, and that ALA has set up an e-content access taskforce of some sort.
I hope that having lots of smart people working on this will get us out of what feels to me like one of those make-or-break decision points. This ebooks thing is on the brink of becoming the next Big Deal, and before long we’ll be talking about the eMonographs Crisis unless a few fundamental approaches to e-content change.
I am only familiar with US law, but I think the actual copyright law involves makes things more complicated than you might wish.
Libraries have the right to lend out physical books becuase of the ‘first sale doctrine’ (which doens’t apply to all media and doesn’t exist in all countries), that says once you buy a book, you can loan, sell, rent, or give it away as you like. Okay, so far so good.
Now, if you wanted to make a COPY of that book, you could NOT do so without permission of the copyright holder. (In general, there may be some library-specific explicitly made and limited exemptions for some kinds of preservation).
Okay, so how does that apply to e-books? The first sale doctrine doesn’t actually apply, but okay, let’s say it ought to and pretend it does. The trick is, that to _use_ an ebook, you HAVE to make a copy of it. The library ‘buys’ the ebook and puts it on a library server. Okay, but for a user to use it they need to copy it to their device. They can’t legally do this without permission of the copyright holder — a license. If they could… then does that mean that you could just as legally distribute ten thousand copies simultaneously, or put it on the open internet, as you could one at a time? In fact, you can’t distribute even one copy without permission of the copyright holder.
Yes, I think this means that when you buy an electronic file personally and individually, and you put it on your computer, and then later you want to move it to the new computer you bought… this technically might be a violation of copyright if you do it without a license. But of course nobody cares about that (yet). But they care a lot if you ‘buy’ a copy of an ebook and then can ‘legally’ give it to as many of your friends as you want simultaneously — whether you are a library or a person. That’s understandably not a sustainable business model for a publisher, right?
The problem is that copyright law was written in a pre-digital era — and hacked at over the years with special cases and such to meet the actual practical cases, in a tricky balance between different interests — and then the whole environment changes with ebooks. You can’t in fact just “apply copyright as it is now, same as you do for print books” to ebooks, and have it make sense — the copyright laws aren’t actually compatible with that.
Jonathan, You’re right that what we’re doing here is applying a strategy which only works by analogy in the digital world. But the analogy should function in such a way that it protects publishers’ and authors’ rights in the same way as the original. So in our plan, the library-applied DRM would make all these digital files function as single copies of the work. In that way it’s much more like your example of moving a file from one device you own to another device you own.
So obviously publishers would want to make sure that we actually applied these loan rules, so that each copy they sell us won’t easily become millions of copies floating around, but it seems like if there were just the one copy being used for any given purchase, that SHOULD make sense to publishers. Hence the library-applied DRM/copy-protection.
If the courts ever decide that the Google Books Project has been a massive act of copyright infringement, though, this and many other plans will instantly become non-viable. Copyright is weird these days, for sure.
Just as a bit of a follow-up, I mentioned this plan in a meeting this morning that included the head of our IT department here. His response was that this is not only the most logical approach, but it’s also the approach that they’ve used for years to check software out to people. So there’s a great precedent for us.
In these systems, the software lives on a server (in this case here on campus, I believe) and the IT department “keys” the software when they purchase it so that it won’t run without checking in with the key server. Check-outs can be set so that people use the software on the server or off of it, and the IT admins set the loan periods.
He says there are several “license management systems” like this out there, and that the best example is Sassafras Keyserver.
Seems like a great analogous system to the one Steve and I have proposed.
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[…] Lawson and Iris Jastram have the beginnings of a plan for libraries and ebooks: it’s articulate, thoughtful, and addresses a number of specific frustrations and issues. It […]
i’m confused by some of the terms being used. what’s the difference between “copy protection” and DRM? how is a third-party that is working for the library *not* a vendor?
i love this sentence though: “We believe that the publisher should publish, and the library should own, lend, and preserve.” absolutely, and a great distinction.
Good questions, Andrea. I’ll answer, and Iris can chime in if I misrepresent her or if she has better ideas.
When my friend Marianne read a draft of the post, she was talking to me about how she objects to “digital rights management,” and that we aren’t interested in managing anyone’s rights, we just want to keep unauthorized copies from proliferating. So that’s why I preferred that term “copy protection.” It falls under the umbrella of DRM, but it is limited to just that function.
Your second question is even stickier, and I was thinking earlier today that we might have done a better job of addressing it in the post itself.
I think Iris and I are thinking of some kind of cooperative that does things for libraries and has libraries paying in to make the service possible, but not a “vendor” that has a sales force and “products” to sell. This is a fine line to walk, we realize. JSTOR and Center for Research Libraries spring to mind as possible precedents and OCLC as something of a cautionary tale.
[…] Copy protection will never be applied by the publisher, but by the library, or by a third party hosting the ebooks under contract from the library…[full post] […]
[…] day before my talk, Iris Jastram and Steve Lawson published a blog post in which they laid a solid conceptual foundation for the development of an […]
Well written, all. The copyright issue is complicated; you have people outright declaring that there’s no such thing as digital first sale, and you have people arguing to the contrary. The law so far has been getting more restrictive, not less, and the last official attempt for educators, librarians and publishers to sit down and work the digital issues out didn’t really pan out. The recent release from the IP czar is not comforting on this front, either.
I’m not sure that publishers and vendors will like the ideas. So far in the law and policy realm, they seem to have been mainly concerned with expanding control. Some might, though, and I will bet that some authors would find the idea attractive as well. I think making those alliances would be useful.
I don’t think the copy protection you’re referring to exists just yet, and the licensing issues would have to be addressed before that came into play. Keyserver, for example, is good software, but it won’t necessarily work with such a system unless the eBook model changes- we can’t use Keyserver with as much software as we used to, because the software licenses prohibit such use. I don’t wonder if something like a watermarking technology might do something in that area… something to think about it, at least.
Good start.
Thanks Carlos. And you’re absolutely right that the things that we’ve proposed here are potentially really complicated. They’ll require that we get the publishers on board with the plan, and that we develop an infrastructure that hasn’t existed in quite this form before.
I think what we’re hoping is that the analogies that we propose are sound enough and fair enough that they can give us something to push for.
And as with any analogy, hopefully we can learn from the failings of the analogies, too. We’d want to look pretty closely at things like keyservers to see what works and what doesn’t. And your point that the software you put on them has to be licensed for that use is well taken. I suppose the licenses I’m hoping for would result in having things function as if first sale were in play. I mean, ideally all of this would push us toward having a real first sale provision for digital stuff, but I realize that’s going to be a tough battle.
[…] Bookmarks II have led him to a position that sounds a lot like what Iris and I ended up saying in our plan that we drafted in reaction to the HarperCollins […]
[…] that? Well, I’ve already written with Steve Lawson about some ideas for staving off the insanity and steer us towards one model that might allow us to capitalize on the benefits of new formats […]