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Vol. 19 No. 10 — December 2011
FEATURE
Ebooks on Fire
Controversies Surrounding Ebooks in Libraries

by Charles Hamaker
Associate University Librarian for Collections and Technical Services
Atkins Library, University of North Carolina–Charlotte


There is more than one way to burn a book. And the world is full of people running about with lit matches.
– Ray Bradbury

Perhaps the greatest impediment for the transition from the tradition of the printed book to the ebook comes from the malleability of the etext. While it might not matter to the occasional or recreational reader, the ebook presents a host of challenges for the role of the book as transmitter, carrier, and shaper of our written word cultural heritage.

Ubiquitous web and print ads tell individuals and libraries to “buy” ebooks. But long-term preservation and retention rights to stable content are not the norm, because many resellers and vendors don’t possess those rights from the publisher or author. Instead of true ownership, most ebook “purchases” are more like leases, and leases with few residual rights at that. The only way to assure continuing access and storage for an ebook is a permanent download to a device with rights not governed by strict DRM (Digital Rights Management) systems. With content delivered from a hosted service on the web (aka the cloud), the “purchaser” has no control over the content. Even Google Books bears the disclaimer:

[I]f Google or the applicable copyright holder loses the rights to provide you any Digital Content, Google will cease serving such Digital Content to you and you may lose the ability to use such Digital Content.

Revocable Rights

This quote comes from a license for individual use of an electronic resource (the Simon & Schuster site that has ebooks):

S&S (Simon and Schuster) grants you a limited, personal, non-exclusive, revocable, non-assignable, and non-transferable license to view, use, and/or play a single copy of the Materials and download one copy of the Materials on any single computer for your personal, non-commercial, home use only,

www.simonandschuster.com/about/terms_of_use (accessed Sept. 23, 2011)

Revocable rights statements appear in licenses for use by both individuals and institutions. The publisher “reserves the right to change terms of sale at any time” is another common statement in terms of service for ebooks and other electronic content. Similarly, one major publisher’s license “may require immediate withdrawal of its titles from the Reseller’s System” if certain conditions are not met. Who then becomes the guarantor of access to purchased content? Will the book you read yesterday be available tomorrow?

Beyond “revocable” sales, changing terms, and the potential of “immediate withdrawal,” conditions must mature to ensure the long-term survival of ebooks.

Protecting the Text

From the Random House license on the web with library resellers comes this simple statement that can potentially diminish the continuity of the record of published works. It implies changes that authors and publishers and governments and a host of other actors could utilize to destroy the historic record:

RH reserves the right, at any time … to replace, edit or modify the contents of any RH eBook.

www.randomhouse.biz/booksellers/pdfs/eBooksLibraryTOS1210.pdf (accessed Oct. 9, 2011)

The ability to modify the published text without notification, tracking, versioning, archiving, or any other means that might provide the original text for readers is destructive to the tradition of the history of the printed word and the tradition of Western scholarship. If we want to know what Galileo wrote, we can still go back to the original text. What if the Catholic Church had had the potential to wipe out completely the record of his writings? What if the government or even a nongovernment entity could destroy, with a simple computer command, the outpourings of the next Thomas Paine? Works are routinely challenged, but what if the next challenge resulted in destroying the offending words, the blasphemous, the treasonous, or simply uncomfortable words that offended a judge, law enforcement, the local church, a group of parents, a morals group policing books, or an influential critic? We cannot as a civilization permit our complainers’ and dreamers’ and thinkers’ words to be destroyed by the simple expedient of the ability to “replace, edit or modify the contents” of any ebook.

Authors have a right to be wrong. But even the author should not be able to change the text in a previous edition without notification to the reader. The recent back and forth between Governors Rick Perry and Mitt Romney in the Republican presidential debates exemplified the issue. What if Romney’s first edition instead of being a hardcover title were an e-version subject to change? Then Perry’s challenge to Romney might have been impossible, because in the next edition, Romney changed the text. What if the original text were gone?

The technical tools to manipulate content in ebooks are simple. If the original book were no longer available, the source could be altered for all time.

Expurgated, sanitized, bowdlerized texts are mere propaganda. We have organizations dedicated to preserving the uncomfortable content of the published word. They are called libraries, and libraries are lagging in creating mechanisms to protect the very words that are one of their reasons for existence. We must have guarantees for the word, for the phrase, for the paragraph, the text. At the very least the guarantees must indicate what the previous words were, no matter what critics, the publisher, the author, the courts or governments might decide. Treasonous, libelous, offensive, ludicrous, blasphemous, or just out-of-fashion the words might be, but the written word still needs protection. We need continuity of text, markers of change, versioning, permanent archiving of variant editions if the ebook is to become a significant means of transmitting our culture and heritage.

Some important progress on versioning is being made by CrossRef [www.crossref.org], which is in the process of initiating, primarily for journal articles, an icon called CrossMark, which will indicate changes to the text and provide publisher curated accuracy. (See its PowerPoint on SlideShare for details: www.slideshare.net/CrossRef/introduction-to-crossmark.) The whole ebook industry needs to consider a similar approach.

Carol Saller, an editor of The Chicago Manual of Style , has noted:

When an e-book is sporadically or perhaps even frequently revised, is anyone keeping track? What’s the difference between a new printing and a new edition? And does it matter?... It may not matter for ephemeral works, but for any work destined for later scrutiny or citation, it is important to be able to identify which version came first ...

(See Carol Saller, writing for Lingua Franca, the Chronicle of Higher Education blog, Sept. 29, 2011 [http://chronicle.com/blogs/linguafranca/2011/09/29/typos-and-worse-when-e-books-need-correcting], accessed Oct. 9, 2011.)

Library Issues

Who owns the book? Ebooks are a challenging area for libraries. Licensing is a critical issue because ebooks are being marketed as if they were analogous to print purchases. They most definitely are not. They can be available one day and gone the next.

Although OverDrive [www.overdrive.com] publicity says patrons will “download” if a library “buys” a book, in fact, the download is a temporary file, disappearing from the patron’s collection when the due date is over. In the electronic world, only the copyright owner can definitively “sell” a book. Others have rights negotiated with publishers which may not include “permanent” sales. As one commenter has said: “Vendors’ marketing materials often use language that implies ownership of content; and as libraries feel continued pressure to add third-party e-content services, they are signing contracts without appreciating the long-term consequences.” (See Matt Weaver, “The Language of the Deal” [http://libraryrenewal.org/2011/07/11/the-language-of-the-deal], accessed Sept. 26, 2011.)

Acquisition processes and decisions take an inordinate amount of time whether ebooks are treated individually or in mass purchases. Platform differences, printing, and downloading restrictions are critical to clarify. Bibliographic records need to be identified and modified. And the licenses for each different platform and sometimes for individual books must be negotiated.

There are often limitations to what can be done to an ebook. Some systems do not permit printing of any content, with simple cut-and-paste often disabled. The ebook is often burdened by DRM software. As currently provided, most ebook systems do not meet the long-term requirements of many libraries and their users for access, pricing, utility, and preservation. At the University of Illinois–Urbana-Champaign, Wendy Shelburne, electronic resources librarian, is not accepting purchase of ebooks unless the library receives archival rights. More libraries need to be specific about what rights are being purchased when ebooks are being acquired.

Confidentiality

If the reseller’s system determines who can use the material and how, DRM software and circulation restrictions might end up recording individual user information. That most basic of responsibilities of libraries, to protect patron-specific information on usage of library materials, might not survive in the ebook era.

There is very little information publicly available on resellers’ or aggregators’ potential access to individual user information. The original OverDrive license for Kansas libraries does state: “Nothing in this section shall entitle DLR to any patron data or any information relating to the identify of patrons accessing any components of the application services” [www.scribd.com/doc/52439233/OverDrive-s-current-contract-with-Kansas-State-Library].

3M states its system doesn’t require users to “explicitly establish an account,” but makes use of the library’s own integrated library system and “automatically uses the patron’s library account to create the supporting accounts needed on its own platform and in the DRM environment” (Marshall Breeding, “Smarter Libraries Through Technology: Developments in E-Books and RFID,” Smart Libraries 21(7):3, July 2011). If any distributor has direct access to identifiable user accounts, then it could be subject to subpoenas to examine use.

A key requirement for resellers is often one book, one registered user, enforced by auditable requirements in some licenses. Resellers must maintain records to prove that this is what is happening as well as to prove compliance with other DRM mandates. OverDrive has notified libraries that publishers want to limit “geographic and territorial rights for digital book lending, as well as to review and audit policies regarding an eBook borrower’s relationship to the library (i.e. customer lives, works, attends school in service area, etc.)” ([http://librarianbyday.net/2011/02/25/publishing-industry-forces-overdrive-and-other-library-ebook-vendors-to-take-a-giant-step-back], accessed Sept. 26, 2011). If resellers maintain the record, publishers and others could audit performance of such restrictions. Even with these types of issues appearing in contracts, Macmillan and Simon & Schuster have not agreed to sell or lease their ebooks to libraries.

Amazon’s new announcement concerning public libraries, the Kindle and OverDrive, makes the link of the library reader to the content explicit. If the library user wants to buy the book later, their annotations from the original “read” of the library “copy” are available in their accounts. One of the principles of contemporary librarianship has been the commitment to de-link patron and title information once a borrowing transaction is complete. With OverDrive and Amazon, this principle, designed to protect confidentiality, becomes moot for their ebooks.

OverDrive’s instructions are specific:

Click the ‘Get for Kindle’ button. This opens the Amazon.com website. You may be required to sign in with your Amazon.com account if you are not already logged in.

And the resultant accounts obviously link:

Patrons checking out Kindle books will be able to use Amazon’s Whispersync technology so that they can highlight and add margin notes to Kindle books they check out. The notes will not show up when the next patron checks out the book. But if the patron checks out the book again, or subsequently buys it, the notes will be there.

–Michael Kelley, “Amazon and OverDrive Roll Out Kindle Books to Libraries” ( Library Journal Newsletter [www.libraryjournal.com/lj/newsletters/newsletterbucketacademicnewswire/892118-440/amazon_and_overdrive_roll_out.html.csp], accessed Sept. 23, 2011.

Yale University Libraries has recently made OverDrive titles available to its community.

Although not directly related to libraries, California just passed a Reader Privacy Act protecting reader privacy in ebook systems. “Without strong privacy protections like the ones in the Reader Privacy Act, reading records can be too easily targeted by government scrutiny as well as exposed in legal proceedings like divorce cases and custody battles, the EFF (Electronic Freedom Foundation) said in a statement on its website.” (See Mike Kelly, “California Governor Signs Reader Privacy Act,” Library Journal Newswire , Oct. 3, 2011 [http://blog.libraryjournal.com/ljinsider/2011/10/03/california-governor-signs-reader-privacy-act], accessed Oct. 6, 2011.)

Archiving

At the 2000 Charleston Conference, Bob Molyneux said: “We now have the potential to lose more of the intellectual output of the human race than has been lost since the beginning of written history” (The Charleston Advisor , April 2001, p. 55 [https://escholar.uncc.edu/dspace/bitstream/2029/41/1/aap.pdf], accessed July 5, 2011).

Preservation should be an overriding concern that publishers and librarians and other cultural institutions share in the development and/or deployment of ebook ecosystems. Fear of not getting the last bit of income seems the primary goal for systems development today. But there are other issues just as pressing as income streams.

The problem, mostly unaddressed, of long-term retention of electronic books, is critical. It is not acceptable for the publisher or aggregator to also be the “guarantor” of the long-term security of the same files it provides to libraries. Splitting the “archive” off from the “current” offer while using the same distribution and IT resources is not archival retention; it is betting that the whole system won’t go under. Archiving is best handled by entrusting it to institutions that have the survival of intellectual content as one of their core purposes. There is little evidence of archival concerns from the ebook publishing industry overall.

Publisher consolidation, bankruptcy, abandonment of backlists, focus on best-sellers — all these issues and more suggest that institutionalizing long-term retention must be part of the solution. Most ebook licenses don’t provide for institutional retention. Yet with lease not purchase, with copyright law secondary to contract terms, the message from many publishers seems to be not to worry, just because the end purchaser has no control over the content doesn’t mean it won’t survive. The logic is fallible and inherently contradictory. Because a publisher or aggregator has the expectation of future revenue from its stock doesn’t mean it will hold it indefinitely when the ebook is no longer profitable.

And who can guarantee to readers that the next time they access a text, it will be the same as before? Such potential issues undermine the very basis of the scholarly enterprise worldwide: citation, criticism, and analysis.

The digitization of books worldwide should depend not only on publisher archives, but on library archives. This should be a primary lesson. Publishers don’t preserve long-term (except in rare instances), libraries preserve our intellectual patrimony. Do we need legislation to mandate multiple libraries as official repositories of our collective intellectual property specifically to protect and preserve the tsunami of electronic-based IP? Do we need libraries or specially created organizations to develop and fund their own ebook archival systems? Are CLOCKSS/LOCKSS and Portico, two primarily library-centric organizations, enough? Instead of the hodgepodge of aggregators who may have partial rights to protect the content they are leasing and providing to libraries for the long-term, we may need newly created cooperatives to develop ebook systems that provide perpetual rights and are not at the mercy of provider idiosyncrasies. If not, are we reduced to concluding the only preservation for long-term use is analog due to current industry practices? Print it out or lose it?

UPCC, the Project Muse consortium for scholarly press ebooks, has announced archiving rights and perpetual access for its collection of University Press titles, a welcome development. UPCC will also provide chapter level linking. Duke University Press also has archiving as well as chapter level reserves. (See the UPCC announcement at http://muse.jhu.edu/about/new/ebook_collections.html#timeline.)

MetaArchive [www.metaarchive.org], which describes itself as the “first private digital preservation network,” may be an appropriate direction for curation of digital content; it is a cooperative and a “secure and cost-effective repository that provides for the long-term care of digital materials” created by its members [www.metaarchive.org/the-cooperative].

Borrowing and Lending Rights

Library-based ILL has been limited by DRM restrictions from many distributors. There are proposals by library-friendly vendors to limit ILL to 10 to 14 days, which at least is an improvement over others that do not permit it at all. For Random House titles, at least in the public version of its license for distributors to the library market, only registered library users of the “purchasing” library are permitted to use a title. If this becomes the standard, ebooks will be less accessible than printed books in terms of providing the variety of titles libraries routinely supply to users. The gap between have and have-not libraries will widen, with well-funded libraries providing readers with depth in the monographic literatures and less-well-funded libraries providing fewer resources. It means the end of sharing the riches of our greatest and best-funded libraries with readers throughout the scholarly community and represents a loss of diversity for all readers.

Restricting ILL lending is a particular issue for libraries making conscious decisions to expand variety within a consortium through purchasing more titles but fewer copies, rather than having everyone in the consortium buying the same book. Such agreements for sharing collections are a generations-old tradition that is in jeopardy with various ebook models currently on the market.

Electronic Reserves (Academic Libraries)

A common practice in academic libraries is e-reserve systems that require mini-checkouts or, in some cases, read-only, no checkouts. The major nod toward multiple users is EBL’s model, which ultimately limits the “number of days” a book can be used in a year. Almost any book or portion of a book can be assigned by a faculty member for “reserve” readings, but most ebook systems don’t accommodate such readings. Rather, the systems work on the basis of one reader “checking out” a book, thus removing it from use by other users. A recent request to place an ebook in a “reserve” category elicited the response: “There is not currently any mechanism for placing an eBook on reserve … Since there are a limited number of eBook copies, I can certainly see where this would be helpful to faculty and staff who want to make sure there is always one available and circulating.” The vendor has no system in place to do that or, to my knowledge, plans to accommodate such a change.

In 2001, the University of Rochester listed requirements of an ebook e-reserves system for academic use. It’s still one of the most direct statements of what academic libraries need for these systems:

An ideal ebook system for use with course e-reserves would be one that would allow for simultaneous users or had a pricing model that would permit multiple copies to be affordably rented for the semester. In addition, printing must be possible to allow students to have a personal copy (for educational purposes) that they could annotate and carry to class. An alternative would be a system that could support the downloading of the texts onto portable ebook devices.

– “eBooks for E-Reserves,” Librarians eBook Newsletter , Vol. 2, Issue 2 (October 2001) [www.lib.rochester.edu/main/newsletter2-1/ereserve.htm], accessed July 22, 2011

In its current guidelines page for e-reserves, Ithaca College notes:

Content from electronic books (ebooks, ebrary items) cannot be printed and placed on reserve or scanned for electronic reserve due to license restrictions … Eresource licenses will allow links to ebooks and/or chapters in ebooks to be added to Course Management Software such as Blackboard. Please note that ebook titles in the current collections are subject to removal by the vendor at any time.

– “Course Reserves: General Information” [www.ithacalibrary.com/services/policy_reserves.php], accessed July 22, 2011

Very few publishers are willing to permit library lending or common reserve usage. Springer Verlag’s system is an exception for its ebook imprints as, it does not use DRM and has been very successful. Other providers are repeating mantras from the Napster era that one library will borrow and that will be the only copy sold, or multiple users will degrade future sales. There is, of course, no evidence for this, just fear driving restrictions on user behavior enforced by DRM.

Paying a Premium

If a library inadvertently leases something not predicted to be a “hit” and it suddenly becomes one, the charge may be more after the sale! Use is a factor that many aggregators and publishers want to consider if it’s in their favor. The current adaptations seem to be some variation on the Harper/Collins argument: if an institution uses one title more than it uses others, then it should be charged more for that use. In HC’s case, it wants to “sell” another “book” once the magic number is reached for total circulations, claiming that it’s no different than if a print book “wears out” after a certain number of circulations. Others complain that some of the titles being sold to academic libraries might get assigned for class use, and therefore the publishers or aggregators should be “compensated” for that “extra” use.

By the same logic, if 50% of the titles that a library gets from a publisher or aggregator aren’t used shouldn’t there be a refund or post sale discount? Aggregators want libraries to shoulder the cost if they produce content not needed right now, but are unwilling to permit, without extra compensation, use rights if the library really needs the title. Some aggregators are offering one user for 150% of the list price, two simultaneous users for 200%, and three or more simultaneous users for 300% of list price. Libraries take the risk through selection decisions of purchasing material that are ”just in case” purchases. In selecting titles, libraries may be following the logic of collection development covering specific fields of knowledge. If a library purchases a title predicting use, if use is higher than the one-person checkout model, should the library have to pay more? This isn’t a model where anyone can win, least of all civilization’s long-term interest in providing access to intellectual property.

(For additional comment on the issues concerning ebook sales and distribution, see: “Editorial: It’s Not About HarperCollins; Current models aren’t the final word,” Francine Fialkoff, Library Journal , April 1, 2011 [www.libraryjournal.com/lj/communityopinion/889550-274/editorial__its_not_about.html.csp] accessed July 7, 2011.)

Innovation

Affordable shared access is another option that would actually boost our intellectual capital, as different individuals could read and comment on the same text together. Amazon has implemented this for “friends” groups; we need it implemented for widespread use of library ebooks. Students using their portables today as they “hook up” to monitors work on shared assignments and other content. What a boon it would be for educational purposes if all ebooks for academia came with multiple use capabilities supporting multiple readers and joint annotation as well as multimedia integration.

Although annotation is now possible for personally purchased titles, and some systems allow an individual to “share” comments with others, it’s still not common for library-targeted commercial systems to permit multiple users to annotate jointly, or to permit an instructor to choose to have a cohort of users engage in joint annotation and reading on their individual devices. Downloading a chapter of an ebook for personal use may be beyond some system permissions still, although the number of pages that can be printed in NetLibrary under Ebsco’s ownership has been significantly expanded.

CourseSmart [www.coursesmart.com], the publisher conglomerate for etextbooks, has developed a system for educational use, adopted by Western Governors University for etextbook delivery that has the following features:

The ability to “check out” sections for offline reading

The ability to search and navigate through the table of contents

Pagination that matches hard copy textbooks

The abilities to add notes, highlight text, print pages, and send information to classmates

Reading apps for Apple and Android devices and browser-based mobile reading for other devices

(See Dian Schaffhauser, “Western Governors U Taps CourseSmart for E-Textbook Delivery,” Campus Technology , Oct. 5, 2011 [http://campustechnology.com/articles/2011/10/05/western-governors-u-taps-coursesmart-for-e-textbook-delivery.aspx]).

Many of these features should be standard for all ebooks, especially those sold to libraries.

The best-selling nonfiction at the moment is Jacqueline Kennedy: Historic Conversations on Life With John F. Kennedy . Its electronic counterpart sells for a third of the price and may mark the emergence of the true ebook for trade publication. (See Peter Osno, “Enhanced E-Books and the Future of Publishing,” TheAtlantic.com, Oct. 4 2011 [www.theatlantic.com/entertainment/archive/2011/10/enhanced-e-books-and-the-future-of-publishing/246111], accessed Oct. 6, 2011).

Conclusion

Stewardship is easy and inexpensive to claim; it is expensive and difficult to honor, and perhaps it will prove to be all too easy to later abdicate.

– Clifford Lynch, 2003 [www.arl.org/newsltr/226/ir.html]

What we need is a revolution, not a continuation of tighter controls. We must find another way to “do” ebooks. What can consumers, customers, creators, distributors, and custodians of ebooks do to enhance the experience, preservation, and continuing innovation of etexts for both education and public use?

Concerned readers, libraries, school systems, institutions of higher education, aggregators, publishers, and their associations should come together to create criteria for acceptable and desired features of the new landscape. Such groups would have as their concerns at least three key issues: a competitive marketplace of etexts; innovation in development, design, content, and utility; and preservation. Anything less than substantive dialogue and outcomes in these areas runs the major risk of destruction of the record, the potential of the new medium, and of the core values of a significant portion of our cultural heritage with myopic implementations.

Further Reading

UC Libraries Academic E-Book Usage Survey; Springer e-Book Pilot Project [www.cdlib.org/services/uxdesign/docs/2011/academic_eBook_usage_survey.pdf], accessed July 7, 2011.

For further discussion of DRM issues and library use, see Jason S. Price, “Patron-Driven Acquisition of Publisher-Hosted Content: Bypassing DRM,” Against the Grain , Vol. 23, No. 3 (June 2011): 16, 18, 20. Also available as Jason S. Price, “Patron-Driven Acquisition of Publisher-Hosted Content: Bypassing DRM” (2011). Library Staff Scholarship Paper 2 [http://scholarship.claremont.edu/library_staff/2], accessed July 8, 2011.

For multiple perspectives that present the current status of ebooks, see this article in the quarterly issue of NSIO’s ISQ journal: October Ivins. “Views of the E-Book Renaissance,” Information Standards Quarterly , 2011 Spring 23(2):3 [www.niso.org/publications/isq/2011/v23no2], accessed Nov. 4, 2011.


Charles Hamaker (cahamake@uncc.edu) is Associate University Librarian for Collections and Technical Services , Atkins Library, University of North Carolina in Charlotte, NC
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