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E-Books for Sale! Or did you say license?

Submitted by Mary Minow on January 30, 2013 - 11:22am

Mary Minow is a lawyer and librarian. She will present the workshop Copyright, Licensing, and the Law of E-Books on February 6, 2013.

A controversial e-book bill in Connecticut proposes that publishers of electronic books be required to offer such books for sale to public and academic libraries at the same rates as offered to the general public.

I give a hearty congratulations to the visionaries in Connecticut to take this issue head on, whether or not a legislative solution is feasible. The bill shines a badly needed light on the problem that librarians know about, but that the public, by and large, does not: e-book publishers are not making their wares available to library users on fair terms, if at all.

Yet the irony here is in the bill’s use of the words “for sale” rather than “for license” to libraries.

I wait for the day when consumers wake up and realize they do not, in fact, own the e-books they’ve paid for. The language in most e-books ads that I’ve seen uses the familiar term “sale” instead of the rather off-putting “license.”  I believe such loose language is an unfair and deceptive practice worthy of consumer complaints to the Federal Trade Commission. These publishers and vendors offer to “sell” e-books to consumers and libraries, when they actually “license.”

Words make a difference. Remember classic Mark Twain--the difference the right word makes is the difference between lightning and a lightning bug. The difference between selling and licensing an e-book is the difference between owning a book and renting it.  And the rental may have oddball restrictions to boot.

Some publishers sell e-books. Douglas County Libraries, the Califa Group, the Internet Archive and others are eager buyers.  When a library is fortunate enough to buy an e-book, it acquires the right to preserve it, to lend it to one person at a time, and anything else that copyright law allows with a print book.  

What does First Sale mean in the digital age? A critical court case to watch right now is Capitol Records v ReDigi. “The world’s first pre-owned digital marketplace” lets users buy and sell used MP3s.  With permission, ReDigi will actually scan the customer’s computer to make sure no additional copies of the MP3 remain on the hard drive. If there are none, you can put your used MP3 up for sale. If the company wins the case, it plans to go into the used e-book market. A First Sale win here would be tremendously helpful for libraries.

Also of note from the Midwinter Meeting, the Digital Content and Libraries Working Group (DCWG) released E-Book Business Models: a scorecard for public libraries on January 25, 2013.  This is a big step forward in sorting through the models and preferred terms.