In The Late Age of Print, cultural studies scholar Ted Striphas recounts how early 20th century publishers employed public relations guru Edward Bernays to promote book buying. One of Bernays’ more charming schemes was to encourage homebuilders to install bookcases in new, middle-class homes; once the infrastructure was there, what else could they do but buy books to populate them? Bernays also launched a more insidious campaign to vilify what he called “book sneaks”—“the book borrower, the wretch who raised hell with book sales and deprived authors of earned royalties.” The wretches in question were people who relied on libraries, remaindered or used books, or just the passing of books from friend to friend — basic practices of print culture we take for granted today.
In other words, Bernays and the publishing industry aimed to turn public opinion against the principle of first sale, which holds that books, like any other property, can circulate freely after their initial purchase. The campaign was ineffective: the first sale doctrine still governs the sale of “physical books,” as well as most other goods we buy. Once you (or your library) purchase a copy of a book, the first sale doctrine gives you the right to resell, give away, or archive that copy in whatever way you want, making it possible for Craigslist, eBay, and our public, academic, and research libraries to operate. The same cannot be said of digital books. Here publishers have more than just savvy publicists on their side: they have a licensing system that will allow them to preempt first sale, fair use, and other user rights unless users and libraries are vigilant and united.
The first sale doctrine was recognized by the Supreme Court in 1908 and codified by the U.S. Copyright Act of 1976. It was further vindicated in March 2013 with the U.S. Supreme Court ruling in Kirtsaeng v. John Wiley & Sons. The case concerned Supap Kirtsaeng, a native of Thailand who, while studying at Cornell University, discovered he could buy “lawfully produced” textbooks cheaper back home. The young entrepreneur enlisted family and friends in Thailand to send him low-cost books, which he would then sell to U.S. students for a profit. Publisher John Wiley & Sons called this illegal, saying that first sale doctrine didn’t apply to goods manufactured outside of the U.S.
The 6-3 ruling in favor of Kirtsaeng was, as Jonathan Band put it, “a complete victory for libraries.” A wide coalition of actors—including Powell’s Books, Goodwill Industries, eBay, and the Library Copyright Alliance (LCA)—filed amicus briefs on the case. The court’s opinion favorably cited the briefs by LCA and Powell’s, agreeing that Wiley’s position to limit the first sale doctrine would have a disastrous effect on the lending and resale of books. Justice Breyer traced the first sale doctrine’s roots all the way back to the 15th century and fundamental concepts of property law.
The Supreme Court’s strong endorsement of library property rights in books may one day seem quaint, however, due to the (absent) first sale rights and increasingly narrow contract terms through which we all acquire e-books. Just as Amazon can randomly delete the contents of your Kindle, ebook vendors that serve public and academic libraries can randomly remove contents from their holdings — or increase their price by 300% in the middle of a library’s budget cycle, which may have the same effect. For ebooks libraries buy, they have few rights attached to them. Despite being a great deal more expensive than consumer ebooks, many licenses for academic ebooks attempt to limit the traditional first sale rights that make the academic library possible
As many people have pointed out, you don’t really purchase e-books even if the button you push to place your order is labelled “Buy now”. You are licensed them for a very limited set of uses. And many licenses for academic ebooks now attempt to prevent basic exceptions to the copyright code that are fundamental to libraries in both their day to day functioning and their long term role of cultural and historic preservation.
As demonstrated in the work of Michael Carroll and others, the U.S. copyright system, coupled with contract law, is largely geared towards empowering rightsholders in contract negotiations and litigation. When libraries and users sign away their statutory rights in contracts, it creates what Viva Moffat calls, “Super-copyright,” a level of rightsholder control that far exceeds the vision of the Constitution or the Copyright Act. If libraries contract away their rights, the court’s recent affirmations of first sale and fair use will be rendered irrelevant. Instead, these resources will be governed by license agreements, generally written by publishers, many of which explicitly preempt fair use, first sale, or other user rights.
The first sale doctrine is one of the key elements that make the library possible. In addition to allowing libraries to circulate their resources among authorized patrons, first sale rights in print collections have allowed libraries to establish extensive print preservation and interlibrary loan operations, giving readers throughout the national library system access to materials not available at their local library and works long out of print.
When libraries purchase books outright, they always automatically obtain the rights they need to fulfill their mission of both preserving and providing access to collections: this is not because they are made of paper, but because of the legal code, as Wiley’s concern with Kirtsaeng demonstrates. This is not automatically the case for licensed digital resources, including e-books. Every license can be different, leaving libraries and their users with a mixed bag of rights, the very heterogeneity of which can hinder library mission.
As the legal challenges to the Google Books and HathiTrust digitization efforts have highlighted, many of the print works held in library collections are still in copyright, yet the rightsholders cannot be located in order to gain permission for the archiving and sharing of digital surrogates. In his early estimation of the Google Books project, Jonathan Band calculated that Google’s audacious approach to claiming fair use made it possible for the database to exist. In theory — that is, according to the copyright protections that exist for books — the project of digitizing 24 million books (which itself cost as much as $750 million) could have had a copyright liability of $3.6 trillion. But, Band notes:
At the same time, the transaction costs of determining who owns all these copyrights, locating all the rightsholders, and negotiating millions of licenses would also be overwhelming. Most books published in the United States include a copyright notice, but that notice only indicates who owned the copyright at the time of publication—not the current copyright owner. Moreover, the copyright notice does not specify whether the author, the publisher, or a third party has the right to authorize digitization. Furthermore, books published outside the United States often have no copyright notice, although they typically receive copyright protection in the United States. There is no registry of current copyright ownership, with current contact information for the owner. Compounding these problems is the distributed nature of copyright ownership: there are millions of authors and thousands of publishers. Thus, the digitizing entity could easily spend more than a thousand dollars per title just to identify, locate, and contact the relevant rightsholders—even if the rightsholders had no objection to the entity scanning its work for free. The transaction costs alone could easily reach over $24 billion ($1000/book x 24,000,000 in-copyright books).
But even this expense likely wouldn’t solve the problem: the copyright status of nearly a sixth of these books would remain unknown. In 2011, John Wilkin, then Executive Director of the Hathi Trust — the non-profit founded to collaborate with Google’s Books project — examined their fraction of the Google Books corpus. In a seminal paper, Wilkin found 35% of US published work post 1923-1963 and 70% of work published outside the US are orphan works.(see table).
This “orphan works” conundrum will become exponentially larger when rightsholders are not only difficult to locate, but the licensed rights to e-books are different in every case. For instance, many current e-book licenses don’t allow for interlibrary loan and limit other forms of scholarly sharing, meaning that such resources cannot be shared, even if there is no longer a vendor to license them. Since small libraries rely heavily on interlibrary loan to supplement their collections, this scenario should be unnerving to libraries and institutions of all sizes.
Yet some in the library community vocally support this paradigm shift away from traditional library and user rights. Rick Anderson of the University of Utah recently called librarians’ reluctance to sign away interlibrary loan rights in e-books a form of “the Stockholm Syndrome;” the fundamental library values of sharing and preservation encapsulated in the desire to retain interlibrary loan and other First Sale rights are “an unhealthy and irrational affection for an onerous practice by which we were held captive during the print era.” Interlibrary loan of e-books is unworkable, according to Anderson, because digital sharing inevitably involves some form of copying; instead libraries should rely on micro-sales facilitated by hypothetical vendors offering access. In short, we must outsource (through contracts and practice) the stewardship of library collections to an uncertain and unaccountable private market for the unforeseeable future.
Anderson’s complete faith in the free market to supply future library users with whatever they need is at least premature. When we examine how major commercial ebook vendors behave, it is clear that they have a very mixed record at best. Recently, Amazon — the largest commercial vendor of ebooks —has been waging war on several publishers who refuse to agree to its terms, making it impossible for customers to buy their books and prompting Stephen Colbert to start a campaign for its boycott. These incidents illustrate vendors’ arbitrary and unreliable commitment to both transparent contract terms and the preservation function of libraries. And, as promising as Amazon’s used e-book patent might sound, Kevin Smith’s analysis of the recent ReDigi judgement suggests publishers will fight tooth-and-nail to ensure the first-sale doctrine will not apply to digital works. It seems that the real “Stockholm Syndrome” would be an unreflective infatuation with current vendor arrangements as replacements for the deeper values of librarianship.
In recent House Judiciary Committee Hearings on First Sale, John Wiley & Sons, the Library Copyright Alliance, and others had the opportunity to revisit Kirtsaeng and address the question of whether first sale rights should be extended to digital copyrighted goods. Wiley not only begged for congressional action to reverse the ruling in Kirtsaeng, but urged congress to unequivocally, “reject any proposal to extend the first sale doctrine to digital copies.” Instead, Wiley’s President, Stephen M. Smith, and Matthew Glotzer (Senior Vice President of Fox Digital Entertainment) advocated different versions of “License-based business models.” These emergent models for distributing digital content would, in Smith’s words, “be significantly undermined, if not impossible to sustain, under an ownership-based model subject to the digital first sale doctrine.” Glotzer of Fox maintained that introducing digital first sale would not only be bad for the multinational corporations that had decided “license-based” access should be the dominant model, but that the application of this “old construct on the new, digital landscape,” would also harm consumers who were ostensibly satisfied with “access-based” models: “consumers have responded favorably to these offerings.”
Not all readers and consumers would agree. The week before these hearings, the Boston Library Consortium issued a letter in response to arbitrary and arguably predatory price increases of up to 300% for purchase on demand (PDA) library e-book packages. And earlier in the year, the Oberlin Group which represents 80 academic libraries, issued a statement saying that current e-book licensing agreements were introducing an “existential threat,” to the academic library system: “The threat is simple: contractual agreements for electronic books regularly forbid sharing those publications with persons outside the licensing institutions [. . . . ] we libraries accept such licensing restrictions at our peril.” Barbara Fister in a recent column agrees and issued a call and warning to libraries: “the only question in my mind is why libraries are so eager to repeat the mistakes of the past, this time with ebooks.”
The mistakes of the past she mentions are libraries agreeing to license terms for big deals on journals — a familiar topic to those who followed Timothy Gowers Elsevier boycott and the work of Ted Bergstrom and his colleagues. Bergstrom, et. al.’s recent research highlights the “poor value” libraries receive from big journal packages, especially from for profit publishers. However, commercial publishers price gouging tells only part of the story. The license terms are at least as important since they determine the prohibited uses under the contract. Even in journal bundles, studies of license terms have revealed that fundamental reader and library values must be negotiated case by case including interlibrary loan, preservation and long-term access and Fair Use. To further complicate the problem, this research is especially difficult to undertake as libraries are often forced to sign non-disclosure agreements that prohibit publicizing the terms of their contracts.
Publishers (and their publicists) have long fought to defend their business models, resisting pleas from the public and readers for the broadest possible access to and use of knowledge. The current battle over e-book rights is simply the latest in that war. Current e-book licensing practices threaten an unprecedented transfer of control from readers and libraries to publishers. Despite the panicked crescendo of arguments to the contrary, major academic publishers enjoy rising sales and profits, with the top three reporting operating profits of 33-42%. Most of these profits derive from digital academic journals, which libraries are allowed to preserve and share through some form of interlibrary loan.
Emergent platforms like the Occam’s Reader (currently at the center of a pilot project of the Greater Western Library Alliance) promise to make it easier to share e-content between libraries; but lack of acceptable contract terms will hinder the transition to e-books as the primary medium of library collections, since the only guaranteed way to preserve the scholarly, historical, and cultural record is to possess the print volume and the first sale rights attached to it. To smooth this transition, the library community must demand e-book contracts that honor fair use, interlibrary loan, perpetual access, and other rights essential to libraries’ continued support of their patrons in the age of digital books and beyond.
In response to growing interest in e-books, several libraries and library organizations are speaking out regarding challenges and opportunities readers and libraries face with current publisher and vendor ebook licensing models. The UCLA library led an effort that resulted in the University of California Libraries E-Book Value Statement. This statement was created to help inform and frame the context for discussions and negotiations between publishers, providers, librarians, faculty and students about growing e-book content. It is intended to help libraries acquire e-books under contracts that support teaching, research, and preservation; and that maintain a balance between vendor/publisher prerogatives and readers’ freedom of expression and use of content. Similar statements have been drafted by Macalester College, The Oberlin Group, and the International Federation of Library Associations.
The Copyright Office, House Judiciary Committee and USPTO are all conducting hearings on first sale in the digital age. Citizens should make their voices heard. It is also vital that libraries and their patrons make their position clear: even if negotiations end with a micro-sale or micro-licensing transaction, they should begin by speaking out and publicly adopting these first principles of library preservation and user rights updated for the digital age. To paraphrase Jesse England, whose E-book Backup forms the header for this piece, we should not fear electronic media; we should fear an invisible hand ever at the ready to pull back what we have already purchased for our selves — particularly when those purchases are meant to create a lasting archive for posterity.
Sharon Farb (@FarbThink) is Associate University Librarian for Collection Management and Scholarly Communication at UCLA. She holds a J.D. and Ph.D. and her research interests focus on the intersection of key legal and policy issues affecting libraries, archives and cultural memory institutions including intellectual property, privacy, and intellectual freedom.
Sean Johnson Andrews (@skjandrews) is Assistant Professor of Cultural Studies at Columbia College Chicago. He works at the intersection of media and cultural studies, intellectual property rights, and the future of U.S. higher education and scholarly communication. His co-edited issue of Cultural Studies on “Cultural Studies and/of The Law” will appear in the fall.