Reposted from 5/9/2011*
For obvious reasons, we 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.
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.]