Fear and Licensing in Las Library

In reading about the Netflix/library hubbub[1],  the issue in my mind is not how Netflix was used. I believe that the actions of these libraries and librarians are a symptom of a larger issue for the profession: the coping (or non-coping) with the expansion of licensed content as part of the collection.

This run-in with Netflix is just the tip of the iceberg that is slowly bearing down on the libraryland ship. We are moving from a collection model where we would purchase and lend materials to where we act as an access point for leased or licensed content. The relatively safe model protected under the first sale doctrine is being eroded and replaced with agreements where ownership rights stay with with the provider. In forgoing ownership, libraries must abide by a series of contractual rules and terms that have been created by an outside entity. As the number of vendors offering these kinds of business increases, librarians are obliged to enforce a variety of contractual clauses, terms, and conditions.

Libraries are surrendering content ownership at an alarming rate in exchange for convenience. In doing so, the library moves toward a future where the collection is no longer owned and maintained but leased and licensed by entities that operate in the best interest of their shareholders, not the patron community. It’s a future in which final determination of access is taken out of the hands of librarians and placed into that of outside third parties.

If this doesn’t bother you, it should.  

So what can be done? Just as business models regarding digital content are being shaped in the marketplace right now, the library has a role in what that model will look like. Libraries are no longer act as a receptacle at the end of the information production line; they are now active and involved in content creation. In addition, we retain a very important business model chip: money. As it becomes a rarer commodity due to budget cuts, it becomes a more valuable one in terms of buying power. 

So, this begs the question: why aren’t companies like Netflix, Amazon, Apple, or Sony working with libraries? (Redbox does; Starbucks does; I am eager to find other examples but I wanted to post this sooner.) I have a couple of answers in mind, but the one that strike me as being the best is this: companies don’t want to give up any level of control of their content. In creating terms for libraries to use their content, they would have to cede some level of control to us in order to make their product available to our patrons. With the current bevy of EULAs, TOSs, and other agreements that allow them to retain absolute ownership, there is no reason to make a any sort of accomodation or deal with libraries.

(Still not convinced? Check out the quote in the ReadWriteWeb article from Steve Swasey, Netflix’ vice president of corporate communications:

Netflix "frowns upon" this type of use, said Steve Swasey, Netflix' vice president of corporate communications, but indicated no plans to enforce the rules. "We just don't want to be pursuing libraries," he said. "We appreciate libraries and we value them, but we expect that they follow the terms of agreement."

“Appreciate” and “value” sound like the words used before that boy or girl you have a crush on in high school tells you that they just want to be friends. They won’t sue libraries for misusing their service, but they sure aren’t lining up to come up with something that is a better deal for both parties[2]. And that’s a problem that libraries need to address and quickly. Libraries risk losing out on the next generation of content management and the ability to write their own destinies when it comes to collection development. We need to renew our efforts to take control of our content as well as to work with businesses in creating new opportunities and ventures.

The clock is ticking.

 

AndyW

[1] In roughly this order: Tame the Web, Chronicle of Higher Education, Information Wants to Be Free, Read Write Web, Fast Company, LibraryLaw Blog, with a good overview from Librarian.net.

[2] Here’s an idea off the top of my head: Netflix creates a site license for libraries, up the number of DVDs that can be borrowed from Netflix by a library, and give Netflix a share of overdue fines collected from their DVDs. Libraries move less well known movies off of the shelves of Netflix, Netflix gets nearly free advertising as a service within libraries (“we don’t have it, but we’ll Netflix your request”), patrons get movies, libraries share overdue fees with Netflix, everyone wins. (Yes, I know I just railed against licensing and not owning content, but since Netflix is in the business of lending and not retailing, I think this better fits their current business model.)

Comments

'I say libraries should

'I say libraries should "backup" all their online content since they are paying for it, then argue later in court whether you own it now or ever owned it if you get sued...'

It's in the terms amnd conditions. You don't own it. In some cases it might even specifically say you should delete any material that you downloaded whilst a customer!

>the Netflix thing was always a violation, but it was one that was difficult to prove. <

Not really. People being in news stories about it is a bit of a giveaway!
The fact that the dvd's borrowed would probably be in branded envelopes etc.

>the Netflix model is built for exploitation when the monthly fee is flat and the disk arrives with a prepaid return envelope.. there are no late fees. I can loan my disks to 20 other people and no one can stop me.<

Very true. But it doesn't stop it being against the terms and conditions you agree to when opening your account. They would just ban you from using their service but if someone (ie a library) was using it for financial benefit then that COULD be seen as more than a simple break of the terms and conditions into a legal quagmire of theft.

this has been going on for,.. um, 12-15 years...

we went from print to CD, which the library owned *mostly*... some products we owned but some were already licensed back then... we either sent the print volume back or destroyed it... then with CD, that became more apparent when we only licensed the content. we felt we owned it because it was stored locally, but each CD updated and edited the database and we had no idea what content we had.

now with online, which has been for 10 years or more, we own nothing. database content appears or disappears and we are powerless. every time you remove a print volume because it's now online, you gave the publisher more control... because you threw away what you truly owned.

I say libraries should "backup" all their online content since they are paying for it, then argue later in court whether you own it now or ever owned it if you get sued...

the Netflix thing was always a violation, but it was one that was difficult to prove. the Netflix model is built for exploitation when the monthly fee is flat and the disk arrives with a prepaid return envelope.. there are no late fees. I can loan my disks to 20 other people and no one can stop me.

but libraries have been traveling down this path for some time and I don't know what it will take, maybe a nationwide consortium, to get back some control on exactly what we are paying for every year. but each little library, or system, doesn't stand a chance of making any change with their $100,000 contracts. this is big money and one library by itself is not going to anything.

Lawsuits cost $$$

"I say libraries should "backup" all their online content since they are paying for it, then argue later in court whether you own it now or ever owned it if you get sued..."

As the director of a cash-strapped public library, I can assure you that we have neither the appetite nor the financial resources for for a "so sue me," attitude toward intellectual property rights. Nor does any consortium to which we belong.

When a library licenses intellectual content, it does not "buy" it, it merely purchases specific rights for use for that content. Just because I pay money to rent a car and then put it in my garage overnight doesn't mean that I've bought it or own it.

Taking a collectively cavalier attitude toward our legal rights vis a vis vendor-supplied content will not accomplish anything positive for libraries. It will only expose us to legal action we can't afford and make it harder to work cooperatively with businesses in crafting mutually-beneficial business arrangements in the future.

We need to approach business and regulatory matters responsibly and negotiate arrangements that benefit both vendor and library. The best laws are those that are fair to all parties.

Consumerist is in on the hubbub

This should be interesting to watch. Public perception...savvy consumer perception, at that...

http://consumerist.com/2010/09/college-libraries-save-money-by-violating-netflix-terms-of-us...

Well I guess it depends

I would have said that the point is that we are moving towards people using systems which circumvent the Library totally.
In that with Netflix as an example you'd have a personal account and not need to deal with your Library atall.
I know what you mean about the possibilities of Libraries acting as an access point (very true and a good service making the most of the changes 'out there'), but really would the companies want that? Why bother having deals with Libraries, working out shared costs and having levels of administration to deal with etc when they could just have lots of new customers paying them directly, the sending/return system already works really well etc etc
I can see them wanting the publicity, the posters, even the links on webpages but I just think that it's a lot of effort which can be avoided if just more people become Netflix customers.

It does bring up the interesting point of cost though. With many av items people want the unit cost of borrowing it could be half the cost of actually buyingit outright. And also when it comes to music you can order it from Amazon or even, of course, get it as a download immediately, not have to wait for something to come in or be returned.

Syndicate content