eBooks and Access: Part 1

Sarah Houghton LibrarianInBlack.net Acting Director, San Rafael Public Library

What type of library do you work for?

The Big Players: Content

Which of these companies does your library subscribe to?

Free eBooks

and a bazillion more

 Amazon Kindle Barnes & Noble Nook Sony Reader + all tablets, smart phones,
laptops, and desktops

The Big Players: Devices

The Big Players: OS

Kindle (Amazon) iOS (Apple) Android (Google) Windows (Microsoft)

The Big Players: Formats

eBook: EPUB, PDF, MOBI, eAudioBook: WMA, MP3

TXT, RTF, HTML, Kindle, Daisy

Digital Rights Management

Corporate Terms of Service

Copyright Law

Copyright Law (US Code)

Library cant make multiple copies or make
derivative works. 17 U.S.C. Sect. 106

(except for copies for preservation,

replacement, and to fulfill user requests, per exceptions in 17 U.S.C. Sect. 108)

Copyright Penalties: $750-$30,000 per

title. $150,000 if willful infringement is shown. 17 U.S.C. Sect. 504(c).

Digital Millennium Copyright Act

The Digital Millennium Copyright Act
(DMCA) makes it a criminal offense to circumvent technological protection measures that protect copyrighted content.

DMCA Penalties: First time offenders may

be fined up to $500,000, imprisoned for five years or both. 17 US.C. Sect. 1204.

So what happens when youre leasing, not buying?

Licensing vs. Owning

Most library vendors only lease digital
content.

Few sell digital content outright. KNOW THE DIFFERENCE!

Union Librarian

The Overdrive Case

Overdrives marketing materials & sales staff use words like buy, purchase, and sale

Overdrives contracts use words like license and subscribe

READ YOUR CONTRACTS

Licensing Terms to Consider

Costs
Cost of the platform Cost of the content Additional terms (e.g. minimum
purchase)

Differences between costs to library

and cost to consumer

Differences between costs for pCopy

and for eCopy

Accessibility
Some vendors have not made their eBooks, or the platforms that you use to access them, truly accessible. Thats a violation of the Americans with Disabilities Act for most schools and libraries.

Collection Access
Does your library get access to the
entire catalog of materials?

Do certain publishers limit terms of

access?

Can content be removed? What publishers and authors are not

included?

Termination
Under what conditions can you
terminate the contract?

Do you get a pro-rated refund?

You can negotiate terms!

Contract terms and prices are not confidential.

Terms of Service/Use
Terms of Service legally *override*
copyright law.

Companies can make them say

whatever they want.

Few people ever read them.

Overdrive
OverDrive grants you a limited,
revocable, non-exclusive, nontransferable license to access and make personal non-commercial use of licensed materials...

Kindle
Unless specifically indicated otherwise,
you may not sell, rent, lease, distribute, broadcast, sublicense, or otherwise assign any rights to the Digital Content or any portion of it to any third party...

Safari
Your use of the site does not transfer to
you any ownership or other rights in the site or its content. The site may not be copied, reproduced, republished, uploaded, transmitted, modified, indexed, catalogued, mirrored or distributed in any way, in whole or in part, without the express prior written consent of SBO.

Spotify
You are granted a limited, nonexclusive, revocable license to make personal non-commercial use of the Spotify Software Application...and the Spotify Service and to receive by stream...the media content made available through the Spotify Service in the United States. You do not have a right to transfer or sublicense your rights under this Agreement.

Netflix
The use of the Netflix service, including
movies &TV shows made available to you by us, is solely for your personal and non-commercial use.

You also agree not to .... conduct

yourself in a vulgar or offensive manner while using the Netflix service...

Considerations

Device rules Software rules Content rules

Scenarios for Readers copyrighted 1 - The device is empty. The only

content is the code itself that the device uses to display ebooks.
The First Sale doctrine, at 17 U.S.C. Sect. 109 allows the library to lend this empty ereader. Even if the ereader company has software license terms that restrict loans, the First Sale doctrine should override such restrictions. - Source: Mary Minow, LibraryLaw Blog

2- The device is loaded with public domain content and/or content with permission to lend (such as creative commons licensed content). The First Sale allows the library to lend this ereader with public domain content and/or creative commons (or similar) content. There are no additional copyright restrictions that reach beyond Scenario 1. It is possible that the library has agreed to more restrictive licensing terms that someone may have placed on such content, although that is unlikely. The library should be sure to use a source that has not required the library to agree to any additional restrictions. - Source: Mary Minow, LibraryLaw Blog

Scenarios for Readers

Scenarios for Readers

3- The device is loaded with ebooks licensed from a vendor such as Amazon. The license may allow a limited number of copies such as five or six. The library may loan the ereader loaded with ebooks by following the terms of the license.

- Source: Mary Minow, LibraryLaw Blog

Scenarios for Readers

4- The device has unauthorized content.
The library should not loan an ereader under these circumstances, and should delete the content in question. Even if the library is not responsible for the unauthorized content, it could be responsible for the distribution of that content. See Hotaling v Church of Jesus Christ of Latter Day Saints (4th Cir. 1997) at http://caselaw.findlaw.com/us4th-circuit/1057784.html- Source: Mary Minow, LibraryLaw Blog

Terms of Service say

Nook and Sony say come in! Nook same titles on 6 devices Kindle says you can lend a reader
with no books!
rule

Reader Lending

Initial cost + ongoing cost Costs of devices + titles Pace of change w/ readers Liability for loss

Digital Collections
digital vs. physical
budget choices selection process access while closed

Digital Collections
user awareness formats digital rights

owning & leasing device support

models

management

+Sarah Houghton librarianinblack@gmail.com @TheLiB