"Owning" e-books

The basic aspiration of the LOCKSS Program when we started a quarter century ago was to enable libraries to continue their historical mission of collecting, preserving, and providing readers with access to academic journals. In the paper world libraries which subscribed to a journal owned a copy; in the digital world they could only rent access to the publisher's copy. This allowed the oligoply academic publishers to increase their rent extraction from research and education budgets.

LOCKSS provided a cheap way for libraries to collect, preserve and provide access to their own copy of journals. The competing e-journal preservation systems accepted the idea of rental; they provided an alternate place from which access could be rented if it were denied by the publisher.

Similarly, libraries that purchased a paper book owned a copy that they could loan to readers. The transition to e-books meant that they were only able to rent access to the publisher's copy, and over time the terms of this rental grew more and more onerous.

Below the fold I look into a recent effort to mitigate this problem.

Gennie Gebhart's 2019 Publishers Should be Making E-Book Licensing Better, Not Worse reports on another turn of the e-book rental screw:

When Macmillan releases a new book, library systems will be able to purchase only one digital copy for the first eight weeks after it’s published. Macmillan is offering this initial copy for half-price ($30), but that has not taken away the sting for librarians who will need to answer to frustrated users. In large library systems in particular, readers are likely to experience even longer hold queues for new Macmillan e-book releases. For example, under the new Macmillan embargo, the 27 branches of the San Francisco Public Library system, serving a city of nearly 900,000 people, will have to share one single copy right when the demand for the new title is the greatest.
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After the two-month embargo period ends, libraries will be welcome to purchase additional copies of the e-book under normal terms, which aren’t great to begin with: typically, a $60 price tag for an e-book that can only be lent out to one user at a time for two years or 52 lends, whichever comes first. After that, the library has to license another e-book.

Gebhart's use of "purchase" here is misleading, they are signing a two-year lease. Macmillian can make life miserable for libraries and their readers because they are "too big to care". Gebhart explains:

In a July memo, CEO John Sargent says the publisher’s move is motivated by “growing fears that library lending was cannibalizing sales” of new e-books and a need to “protect the value of your books during their first format publication,” but fails to present any evidence to back up his claims. (He also ignores existing, consistent evidence to the contrary.)

On 13^the August, the Independent Publishers Group and the Digital Public Library of America announced a deal:

Through this landmark collaboration between IPG and DPLA, libraries around the country will now have the power to purchase and own in perpetuity, rather than merely license, tens of thousands of ebook and audiobook titles from dozens of independent publishers. The agreement will empower libraries to fulfill their mission to provide access to books for readers nationwide. Publishers such as Austin Macauley, Arcadia Publishing, Dynamite Entertainment, Dover Publications and JMS Books, alongside dozens of other renowned indie publishers, are participating in the deal.

Of course, none of the major publishers would agree to this. The press release explains:

Now, libraries will be able to purchase books through the Palace Marketplace, a non-profit ebook and audiobook platform developed by The Palace Project in consultation with libraries, for libraries. The Palace Project provides libraries with tools and resources that allows patrons to access the broadest possible range of ebooks and audiobooks sourced from the widest variety of sources. Among the tens of thousands of books that are now available for libraries to own and lend out digitally are contemporary award-winning titles, like Leticia Aguilar’s spellbinding memoir Leaving Patriarchy Behind, Michael Nicholson’s The Mosaic Escalator, a mind-bending adventure story nominated for the Best Fiction Book Award by the Golden Book Awards 2024, as well as classics like Elizabeth Bowen’s debut novel The Hotel.
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“After more than 12 years explaining to policy makers and publishers why existing license models for ebooks prevent libraries from fulfilling their mandates, this agreement is a win that libraries, publishers and authors should celebrate together,” said Christina de Castell, Chief Librarian & CEO of the Vancouver Public Library. “Now, libraries will be able to take steps to share and preserve authors’ ebooks as we have always shared and preserved their print books. I hope this agreement is a model that leads other publishers towards more flexible licensing terms, so libraries can continue to be the home for our collective knowledge in our increasingly digital world.”

Details of how the technology works are scarce, although the Palace code is on github. The DPLA's Everyone should have access to knowledge claims:

Palace Marketplace, formerly DPLA Exchange, is an e-content acquisitions platform that works seamlessly with the Palace app. With Palace Marketplace, libraries can customize diverse collections beyond the bestsellers, including non-English titles. Member libraries benefit from DPLA’s ongoing publisher negotiations for new, more favorable licensing terms, and have access to our collection of more than 11,000 open access ebooks.

So it appears that "members" have access to books they "purchased" hosted at DPLA. Once again, as with e-journal preservation systems such as Portico, this is a welcome development but it isn't a solution to the underlying problem. It is in fact another instance of the same problem, because the member libraries are renting access to DPLA's copy. As I understand it, these libraries would be able to download a copy, and preserve it themselves outside the Palace ecosystem, but it isn't clear whether the terms of use would allow them to provide their readers access to the preserved copy.

The key barrier to implementing true "purchase" rather than "rental" is the First-sale Doctrine:

The first-sale doctrine (also sometimes referred to as the "right of first sale" or the "first sale rule") is an American legal concept that limits the rights of an intellectual property owner to control resale of products embodying its intellectual property. The doctrine enables the distribution chain of copyrighted products, library lending, giving, video rentals and secondary markets for copyrighted works (for example, enabling individuals to sell their legally purchased books or CDs to others).

But it doesn't apply to digital copies:

The first-sale doctrine does not neatly fit transfers of copies of digital works because an actual transfer does not actually happen—instead, the recipient receives a new copy of the work while, at the same time, the sender has the original copy (unless that copy is deleted, either automatically or manually). ...

E-books have the same issue. Because the first sale doctrine does not apply to electronic books, libraries cannot freely lend e-books indefinitely after purchase. Instead, electronic book publishers came up with business models to sell the subscriptions to the license of the text.

Mary Minow's 2017 Future of Libraries – Need First Sale for ebooks explains the importance of first sale for libraries:

It is essential to libraries, and the term existential would not be too great a term to use, to be able to own digital files, and care for them via preservation and library lends (e.g. to one person at a time) just as they do with print. Can readers count on books being available a year or two or five after publication? The existence of libraries has made this possible from their inception until now.

The DPLA echoes this:

“Copyright’s ‘first sale doctrine’ is important to readers and libraries for a number of reasons, not least of which is the way that it facilitates long-term preservation and access,” noted Lyrasis CEO John Wilkin. “Licensing models have threatened this critical underpinning, which is needed for preservation of the cultural record. Lyrasis is excited to collaborate with DPLA and IPG in the creation of a model that will make preservation and access of digital content possible.”

Alas, even if the first-sale barrier were removed, the experience of the LOCKSS program shows that the problem would remain. In the paper world building a local collection was essential for libraries to provide service to their current readers. The costs and effort involved in doing so were inescapable. The fact that doing so safeguarded access for future readers was a no-cost, no-effort side-effect. But in the digital world building a local collection is irrelevant to providing service to current readers. They get access from the publisher. The costs and effort devoted to building a local collection are only in the interest of future readers. Thus, given strained budgets, these costs must be minimized. The choice between maintaining a local collection, and simply outsourcing the task of supporting future readers to a service by signing a small check is a no-brainer.

Worse, three other considerations weigh in the balance:

• The publishers are highly motivated to ensure that current readers access their copy, because this provides them data they can sell to advertisers.
• The publishers view many local collections as a bigger risk of their content leaking than a small number of concentrated archives, which they expect will be better secured.
• Economies of scale mean a centralized archive is likely to have a lower cost per unit content than a distributed one.

The LOCKSS Program devoted a great deal of engineering effort to reducing the capital and operational cost, and increasing the security of, two generations of an appliance that libraries could use to build a local collection of the e-journals to which they subscribed. But in the end most libraries that cared about protecting access for future readers to this content chose to sign checks to centralized archives. Of course, it didn't help that the publishers of the most expensive content would not allow libraries to use the appliance to collect it.