Can we legislate better treatment by e-book publishers?

 

What follows is a little conversation between e-book guru Chris Harris in the Genesse Valley BOCES School Library System in NY and me regarding possible library organization legislative platform language related schools and e-book acquisition. I'd read of other political bodies working to legislate fair e-book pricing for libraries, viewing library resources as a "public good." That makes sense to me... 

Hi Chris,

Hope I can pick your brain and save myself a great deal of time doing research. You ARE the ebook guru for K-12, after all.

Our state library legislative committee wants a platform plank that addresses the problems libraries have been having with publishers on e-book costs and would like talking points specific to school libraries. While I have some general ideas about problems we face (cost, lack of common formats, etc.), how might you summarize the issues legislation should address? 

I don't have high hopes of anything but a statement of principle coming from this, but you never know. I am not sure yet even what the plank is asking for.

If you have a moment and some ideas, I'd love to hear them.

Doug

Hi Doug,

Legislatively, ebooks are a tricky issue. Unless the publishers are doing something that infringes upon a protected class, there typically isn't anything that legislation can really do. Among those in the know, there is a great deal of reluctance to push anything in congress. You have to remember that the big publishers are now simply small parts of much larger companies. You know, companies like NewsCorp, Disney, Bertalsmann Group -- companies that own senators. 

When I really started looking at the issues, I came up with three desirables that turned into the three requirements for publisher participation in HereBeFiction.org. 

1. Ebooks can be multi-user or single-user, but single-user ebooks must have a method for easily purchasing for bulk groups of simultaneous readers (eg for a class novel or book club book) at some sort of discount.
2. Ebooks must be made available for offline reading on a secure platform such as MackinVIA to help us provide access for students without wifi at home. 
3. Whenever possible according to platform capabilities and author contracts, books should have text-to-speech capabilities enabled to support students with special needs.

I think that these three statements sum up most of the issues we have any hope of addressing. The one that usually comes up first, cost, is actually a bit of a red herring. Libraries lost the right to complain too much about cost when we collectively flipped out over Harper Collins going to 26 loans. HC ebooks run around $20, so 26 loans means $0.72 per loan. If libraries are really honest about the cost of holding a physical book, there is no way we can match the $0.72/loan. And that was a starting point; if we had negotiated down instead of flaring up we might have made some real progress. Most publisher deals since  HC announced the change have been worse for us in terms of cost. 

So what do I mean by real cost of physical books? Think about other service industries. For example, at restaurants, owners cannot just simply charge for the cost of the raw ingredients with a modest markup. The final cost of a dish must include not only the raw ingredients, but that dish's share of all the salaries, rent/mortgage, utilities, advertising, and everything else. If we sat down and figured out the charge for each book in the library for its share of physical space costs (in my organization, our offices are charged at $12.89/sq foot - I loved the switch to DVDs and am happy to pay more for digital files), utilities, salaries, etc. Not just the librarian and/or clerk, but also the custodians who service the library and the administrators, and the business office, and HR, and everything that is needed to make the library run. Books don't just cost $20; there is an ongoing cost to holding that physical book. And every time the book is loaned, there are additional costs for the checkout/checkin including a percentage cost of the annual ILS costs. 

With ebooks, we are actually outsourcing the overhead costs. We aren't storing them, but someone is still paying for hard drive space (and the utilities, custodians, etc.) to keep the books at the ready for our students. Furthermore, the development of the books themselves is quite costly compared to print. Simply because ebooks CAN do more, we EXPECT them to do more. We want video, read-aloud, website links, and more. That costs big bucks. Even getting a digital license for each picture in an ebook is costly. You can easily buy stock photos for print usage. Once you start looking to publish things digitally, the cost changes and turns into a license and not a purchase. 

So I think we need to be very careful talking about cost of ebooks. If we aren't going to be financially astute and honest about the real costs of doing business we are going to look like idiots. 

Similarly, common formats is a bit of a misunderstanding. There are really only three formats in major use right now, everything else is a discussion of DRM and proprietary lockdowns. Amazon uses the KF8 format, most everyone else uses EPUB though some flat books are still in PDF. 

EPUB is the largest, but has a couple of forks in the path. Books for readers with special needs are often in the DAISY format. DAISY embeds special metadata for better pronunciations during text-to-speech, but is otherwise EPUB and will be likely deprecated upon merging features with EPUB3. Apple iBooks uses a modified EPUB format so that they can be proprietary, but otherwise it is just EPUB. Flat ebooks are often delivered still 
Most of the problems come from DRM. Amazon's format is different, and they also maintain tight control over the DRM for Kindles. Only Amazon can deliver DRM protected content to a device or app, so there is no easy way for schools to use ebooks with DRM on Kindles without going through Amazon....or a third party app-based system like MackinVIA for tablets. Many readers are using Adobe Digital Editions DRM which is a real pain. It is an incredibly paranoid system that is so locked down as to make it near impossible to really use in schools. Ironically, it is the most easy to crack. 

Apple uses FairPlay DRM which is my personal preference. This is actually the only major system that doesn't have a one-click crack readily available. But it is also a more trusting system, and that can work for us. FairPlay authorizes up to five computers to in turn be trusted delivery locations. That means libraries can have computers to distribute content and run whatever inventory system they want to maintain legal compliance with lending limits. In other words, what we have done for many, many years. We have a bit over a thousand iTunes audiobooks and about 300 iPod Shuffles that we send out to students. All of the content licensing is managed in a custom-built inventory/booking system and content is loaded and delivered from a single computer to all 300 devices. 

So, if you were to ask for some specific statements of support, I would go back to the three key ideas above. First, schools and school libraries have a unique need to be able to acquire and simultaneously use multiple copies of an ebook. We need to support reading groups, class novels, etc. For this to work, we need publishers to recognize the need to buy multiple copies and to support this with a discount of some sort. The push here, is to present the dichotomy of student-selected resources and teacher-directed resources. School libraries offering ebooks for student-selected reading are similar to public libraries. Simultaneous access would be really nice, but we cannot really present an honest need for it. 

In the case of teacher-directed materials, however, there is a clear instructional need. There is also support in copyright law for teachers to make additional copies for instructional use. A recognition of the need for group instruction. This we can push, and push HARD. Push with threats of just doing it through fair use if they won't make things available to us. If there is no way to purchase a reasonably supported group access to an ebook, we might just have to purchase a print copy and scan it ourselves to fill the need under fair use. Then invite them to sue, knowing that the worst case scenario is likely a fair-use annulment of damages. So we can try and get them to the table to talk discount on simultaneous access. Don't try and dictate the nature or level of discount, just keep saying we need a way to do this and a way to make it financially viable.  

The second and third points can also be pushed hard. Firstly because they are just common sense. Saying that you aren't going to support helping kids who are poor or have learning difficulties to be more successful readers is almost as bad as kicking puppies. Secondly, we are getting close to touching upon restrictions that impact protected classes. There is a section of copyright law that makes text-to-speech enabled ebooks available to students with identified and qualifying physical, learning, or visual disabilities (bookshare.org) but this is pretty tightly restricted (about 2% of population). What about students who are only partially disabled or who have a different issue (Autism spectrum for example) where having enhanced ebook access could help. There might be a way to push here.

And...oops, I wrote a treatise. Feel free to re-publish if you can think of a way to make good use of this writing. 

All the best,

Chris

Wow, thanks, Chris. When I get an email from someone asking me to do their homework for them, I am usually far less comprehensive - or send them off to a column I'd already written.

The three points are great. I will use them. The one argument for legislative involvement (rather than letting the market simply find a price point) is that libraries and schools are a "public good" and that unfair pricing to libraries works against that public good. Does this make sense? What do you think of wanting to apply the First Sale Doctrine to e-books as something that should be added to copyright law? (I like it, but don't know if it possible.) Seems like I've read something you've written on this before.

I'm not 100% sure I completely buy your build-in-the-overhead-of-the-physical facility argument when it comes to TOC of print materials. Seems to me even the "techno-libraries" we see popping up now and then are not totally online - they have furniture, computers, heating bills, custodians, etc. Plus we still pay professionals for their professional services of selection, cataloging, promotion, etc. But I take your point - you can't just look at the purchase price when looking at the cost of anything.

I'll share your email with our legislative chair as well. 

Thanks so much. You are a genius!

Doug

I would love to see digital first sale, but it is consistently being struck down by courts. It would take legislative action to change it, but the intellectual property lobby would crush it. More over music and movies than books, but crush it all the same. 

The TCO remarks stem from people saying ebooks should be cheaper or people blindly talking about cost per loan of ebook being high without realizing that a physical loan also has a cost. I push the idea more to show the need for us to become more focused on the economics of our profession. We can show an economic public good for sure!

Always glad to help! 

Christopher Harris
about.me/cgharris

So go or no go on an attempt to legislate e-book access for libraries? What is you professional organization doing?

A related post by N.V. Binder blog "What's the matter with e-books?" Jan 16, 2014

Comments

[John Dyer]

Fascinating discussion. Thanks for posting this as well as being proactive in getting eBooks into students hands.

John

[Doug Johnson]

Thanks, John. Any interested in working on the MEMO (now ITEM) legislative committee?

Doug

[Jay Bansbach]

Take a look at HB244 introduced in the MD. House of Delegates during the 2014 legislative session titled "
Libraries - Electronic Book Licenses and Sales - Discriminatory" -- the bill goes after the publishers for deceptive and unfair trade practices. A fairly simplistic bill and to Doug's point about "unfair pricing."
http://mgaleg.maryland.gov/2014RS/bills/hb/hb0244f.pdf

[Doug Johnson]

Thanks, Jay. Just what I was looking for. I really appreciate the link.

Doug

[WilsonSmith]

I want to make sure that it is very important to see whether or not his is something that is going to improve in many way.