E-Book Lending: The Serpent in the Garden of Eden March 3, 2011Posted by Bill Rosenblatt in Business models, DRM, Law, Libraries, Publishing, Services, United States.
I wrote my previous article about e-books and libraries in response to an article by my colleague Thad McIlroy on his Future of Publishing site. The news that HarperCollins had put restrictions into its e-book licenses for lending library services so that each “acquired” title could only be loaned out 26 times was fresh and appeared as a side note in my article. HarperCollins (a division of Rupert Murdoch’s News Corp) is one of the world’s largest trade book publishers. So, what about this major development?
First, let’s quickly review the technical and legal backdrop to what HarperCollins is doing. Libraries normally buy (acquire) books to lend to library patrons. This is made possible through the copyright law, specifically section 109, which is known as First Sale. Section 109 says that anyone who legitimately obtains a copy of a copyrighted work (e.g., a book) can do whatever she wants with it, including resell it, lend it, or give it away. Eventually physical books in lending libraries become worn and damaged; libraries may repair them or dispose of them. Libraries control lending abuses by collecting fines from patrons who return books late or not at all.
In the world of e-books, libraries don’t buy titles; they license e-books in order to license them to patrons. A license is a contract, the terms of which are ultimately up to the publisher. Copyright law allows libraries to lend digital works to their members, but DRM-packaged e-books are governed by licenses, and thus contract law, not copyright law.
Of course, it takes no effort to make a copy of an e-book. That’s why library services use DRM to ensure that e-books are loaned only to properly credentialed users (i.e. members of the library) and that those users can’t make copies for their million best friends. Service providers like Overdrive and NetLibrary have arisen to make it possible for libraries to “lend” e-books in a way that is very similar to the way they lend hardcopy books: you get access to the e-book for the library’s lending period (perhaps a couple of weeks, or for a reference work, a few hours), and then it “disappears” from your device and becomes available to another library member. Libraries can license multiple copies of popular works so that more than one patron at a time can borrow them.
The noted library technologist Eric Hellman calls this the “Pretend It’s Print” model — a characterization I don’t quite agree with, but leave that aside for the moment. Hellman characterizes “Pretend It’s Print” as a reasonable model, at least for the time being. But HarperCollins appears to be taking “Pretend It’s Print” quite literally: they seem to be trying to emulate physical wear and tear on a book that leads some libraries to discard books after a while. Still, Hellman’s blog post on the subject drips with contempt for HarperCollins.
I also believe that HarperCollins has done the wrong thing, but for a different set of reasons. Let me preface my reasons with a couple of caveats: I have no access to statistics on the expected lifespans of library books, though I found a couple of data points that expect between 20 and 35 loans until a book must be either discarded or repaired at a cost that may exceed its value — thus making HarperCollins’s 26 seem like an appropriate number (or did they find the same two articles I did?). I also have no insight into a library book’s promotional value to a publisher, but I suspect it’s not very high.
HarperCollins’s 26- loan limit is just a bad decision. It is bound to please absolutely no one. It is a lose-lose-lose proposition. The library community is up in arms on Twitter and elsewhere about the decision. Many are calling for libraries to boycott HarperCollins material in hardcopy as well as e-book format.
Yet at the same time, two other major publishers, Macmillan and Simon & Schuster, never licensed e-books for library lending in the first place. Librarians complain about this, but not very much.
As I said previously, I had heretofore considered e-book lending to be one of the real success stories of DRM. Libraries get to lend e-books, publishers get paid for those e-books, and library patrons can read them on a wide range of devices (pretty much anything but a Kindle) without leaving their homes or offices. Everybody wins.
Furthermore, let me be clear that some form of content protection is absolutely necessary for library e-book lending. To allow library patrons to make additional copies of “borrowed” digital materials with even relative impunity is just plain unfair to publishers and authors. (Yes, DRMs can be hacked; people can make digital scans of hardcopy books too.)
Yet HarperCollins is making two serious mistakes in DRM implementation. One is to try – too literally – to use DRM emulate a physical product in the digital domain. This has never worked, because a digital emulation will always contain one or more shortcomings with respect to the original physical model that will not meet user expectations. “Pretend It’s Print” may be a convenient point of reference for consumers, but it is more effective to focus on the content access model rather than the physical product in designing digital content services. (As far as I know, record labels aren’t experimenting with DRMs that gradually introduce clicks, pops, and skips into digital music files.)
In this case, the HarperCollins model will fail to meet “user expectations” by angering librarians, who don’t like DRM in principle. Either the e-book will suddenly become unlendable without warning or the DRM system will warn librarians that they will soon have to pay for another license to keep lending the e-book. How many libraries will re-up? Not many, I suspect.
Furthermore, this move defies logic regarding publishers’ strategies for their backlists (catalogs of older content). Publishers believe that their backlist titles have less value than frontlist titles, and they constantly seek ways to invigorate sales of their backlists. By making it unlikely that e-books will be available for library lending after a year or so, HarperCollins is both cutting off access to products that it presumably does not value highly in the first place and hurting its ability to invigorate its backlist. This makes no sense at all.
The other mistake that HarperCollins has made is to introduce complexity into a DRM implementation in a way that adds no value for users. Many early digital music services failed to gain user acceptance because they were too complex for users to understand. Some, for example, had Byzantine pricing plans – X permanent downloads, Y timed downloads, and Z streams per month – that resembled the bad old days of confusing cell phone plans. iTunes won because it kept things simple. Nowadays, as music services take on more and more new features in their attempts to unseat the iTunes juggernaut, they risk similar user confusion and alienation (most egregious current example: the feature-overloaded MOG).
If HarperCollins wanted to try something different with licensing terms, it should have done something that offered value or choice. It could, for example, have offered a choice of limited-loan titles for less money or unlimited-loan for full price. (Eric Hellman tried polling this question; the responses he got prove little more than how emotional everyone is over this issue — which is exactly my point.)
If HarperCollins does not get value from e-book lending, then why not just pull its catalog entirely and join Simon & Schuster and Macmillan as library holdouts? If they do that instead, librarians need not bother boycotting HarperCollins’s e-books; and any threats to boycott the publisher’s hardcopy releases will surely ring hollow.
The end result of a move like this can only be the slow and painful death of library e-book lending. HarperCollins may hope that other publishers will follow its model – though not so closely as to invite antitrust scrutiny. This will only lead to further confusion for librarians and users alike: HarperCollins allows 26 loans, Random House allows 35, Penguin allows 20, etc. There is no way that a model like this can lead to the growth in library e-book lending that libraries need to survive as e-reading grows in popularity. `
Libraries are highly unlikely to reverse the tide in the market alone. Boycotts may be emotionally satisfying but will have no practical impact. Instead, the library community’s best hopes lie in the legal system.
The most likely route would be to try to get the Copyright Office, at its next DMCA rulemaking in 2013, to approve an exemption that would allow libraries to circumvent (hack) DRMs in order to lend e-books as long as they re-package them for the library patron with the same type or strength of DRM. This would be a more elaborate exception than any that the Copyright Office has granted in its four DMCA rulemakings to date. It also has various disadvantages: it could only last three years under the DMCA rulemaking rules (every exception only lasts until the next triennial rulemaking); it could cost libraries more money to support than they pay Overdrive or NetLibrary, which benefit from scale economies; and it could induce publishers to demand (and perhaps even pay for!) DRM that is more difficult to hack.
But perhaps it’s worth a try. Unlike the Section 108 Study Group — a body that recommends changes to the part of copyright law that covers libraries, which ironically has little bearing on the issue at hand — it is possible for anyone to submit a request for a DMCA exemption to the Copyright Office without first having to run a gauntlet of copyright industry lobbyists.
If the Copyright Office were to grant such an exemption, it would mean that a library could be free to purchase any e-book — not just those that the publisher decides to license — and lend it to its members on its own terms while respecting copyright. The result would be a better version of “Pretend It’s Print” — in the business model sense, where it counts.