Digital Content: Who May Publish? Who May Sell? Who May Access?

This originally appeared on the ACRL TechConnect blog.

No matter whether a small university press focusing on niche markets to the Big Six giants looking for the next massive bestseller, the publishing industry has been struggling to come to terms with the reality of new distribution models. Those models tends to favor cheaper and faster production with a much lower threshold for access, which generally has been good news for consumers. Several recent rulings and  statements have brought the issues to the forefront of conversation and perhaps indicated some common themes in publishing which are relevant to all libraries and their ability to purchase and/or provide digital content.

Academic Publishing: Dissertation == Monograph?

On July 22 the American Historical Association issued a “Statement on Policies Regarding the Embargoing of Completed History PhD Dissertations”. In this statement, the American Historical Association recommended that all libraries and graduate programs allow dissertations to be embargoed for up to six years. This is, in theory, to allow junior scholars enough time to publish a monograph based on the dissertation in order to receive tenure. This would be under the assumption that academic publishers would not publish a book based on a dissertation freely available online. Reactions to this statement prompted the AHA to release a Q & A page to clarify and support their position, including pointing out that publishers’ positions are too unclear to be sure there is no risk to an open access dissertation, and “like it or not”, junior faculty must produce a monograph to get tenure. They claim that in some cases that this benefits junior scholars to give them more time to revise their work before publication–while this is true, it indicates that a dissertation is not equivalent to a published scholarly monograph. The argument from the publisher’s side appears to be that libraries (who are the main purchasers of scholarly monographs) will not purchase books based on revised dissertations freely available online, the truth of which has been debated widely. Libraries do purchase print copies of titles (both monographs and serials) which are freely available online.

From my personal experience as an institutional repository manager, I know the attitude to embargoing dissertations varies widely by advisor and department. Like most people making an argument about this topic, I do not have much more than anecdotes to provide. I checked the most commonly downloaded dissertations from the past year, and it appeared the most frequently downloaded title (over 2000 over 2012-2013) is also the only one that has been published as a book that has been purchased by at least one library. Clearly this does not control for all variables and warrants further study, but it is a useful clue that open access availability does not always affect publication and later purchase. Further, from the point of view of open access creating more equal access to resources across the world, Google Analytics for that dissertation indicates that the sessions over the past year with the most engaged users came from, in order, the UK, the United States, Mauritius, and Sri Lanka.

What Should a Digital Book Cost?

In mid-July Denise Cote, the judge in the Apple e-book price fixing case, issued an opinion stating that Apple did collude with the publishers to set prices on ebooks. Reading the story of the negotiations in the opinion is a thrilling behind the scenes look at companies trying to get a handle on a fairly new market and trying to understand how they will make money. Below I summarize the 160 page opinion, which is well worth reading in its entirety.

The  problem with ebook pricing started with Amazon, which set a price of $9.99 for new releases that normally would have had list prices of $25-$30. This was frustrating to the major publishing houses, who worried (probably rightly so) that consumers would be unwilling to pay more than $10 for books after getting used to this low price point. Amazon would effectively price everyone else out of the market. Even after publishers raised the wholesale price of new releases, Amazon would sell them at loss to preserve the $9.99 price. The publishers spent 2009 developing strategies to combat Amazon, but it wasn’t until late 2009 with the entry of Apple into the ebook market that they saw a real opportunity.

Apple agreed with the Big Six publishers that setting all books at $9.99 was too low, but was unwilling to enter into a market in which they could not compete with Amazon. To accomplish this, they wanted the publishers to agree to the same terms, which included lower wholesale prices for ebooks. The negotiations that followed over late 2009 and early 2010 started positively, but ended in dissatisfaction. Because Apple was unwilling to sell anything as a loss leader, they felt that a wholesale model would leave them too vulnerable to Amazon. To address that, they proposed to sell books with an agency model (which several publishers had suggested). With an agency model, Apple would collect a 30% commission on sales just as they did with the App Store. To ensure that publishers did not set unrealistically high prices, Apple would set pricing caps. The other crucial move that Apple made was to insist that publishers move all retailers of ebooks to the agency model in order to ensure Apple would be able to compete on price across the board. Amazon  had no interest in the agency model, and in early 2010 had a series of meeting with the publishers that made this clear. After all the agreements were signed with Apple (the only Big Six publisher who did not participate was Random House), the publishers needed to move Amazon to an agency model to fulfill the terms of their contract. Macmillan was the first publisher to set up a meeting with Amazon to discuss this requirement. The response to the meeting was for Amazon to remove the “buy” button from all Macmillan books, both print and Kindle editions. Amazon eventually had to capitulate to the publishers to move to an agency model, which was complete by mid-2010, but submitted a complaint to the Federal Trade Commission. Random House finally agreed to an agency model with Apple in early 2011, thanks to a spot of blackmail on Apple’s part (it wouldn’t allow any Random House apps without a agency deal).

Ultimately the court determined that Apple violated the Sherman Act by conspiring with the publishers to force all their retailers to sell books at the same prices and thus removing competition. A glance at Amazon’s Kindle store bestsellers today shows books priced from $1.99 to $13.99 for the newest Stephanie Plum mystery (the same price as it is in the Apple bookstore). For all titles priced higher than $9.99, Amazon notes that the “price is set by the publisher.” Whether this means anything to the average consumer is debatable. Compare these negotiations to the on-going struggle libraries have had with availability of ebooks for lending–publishers have a lot to learn about libraries in addition to new models for digital sales, some of which was covered at the series of talks with the Big Six publishers that Maureen Sullivan held in early 2012. Over recent months publishers have made more ebooks available to libraries. But some libraries, most notably the Douglas County, Colorado libraries, are setting their own terms for purchasing and lending ebooks.

What Can You Do With a Digital File?

The last ruling I want to address is about the music resale service ReDigi, about which Kevin Smith goes into detail. This was was a service that provided a way for people to re-sell purchased MP3s, but ultimately the judge ruled that it was impossible to transfer the original file and so this did not fit under the first sale doctrine. The first sale doctrine (17 USC § 109) holds that “the owner of a particular copy or phonorecord lawfully made … is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.” Another case that was decided in April by the Supreme Court, Kirtsaeng v. Wiley, upheld this in the case of international sales of physical items, which was an important decision for libraries. But digital materials are more complicated. First sale applies to computer programs on physical media (except in certain circumstances), but does not cover material that has been licensed rather than sold, which is how most digital files are distributed. (For how the US Attorney’s Office approaches this in criminal investigations, see this document.) So when you “buy” that Kindle book from Amazon or load a book onto your iPad you are licensing the product for limited use on a limited number of devices and no legal recourse for lending or getting rid of the content, even if you try hard to follow the law as ReDigi did. Librarians are well aware of this and its implications, and license quite a bit of content that we can loan and/or distribute under limited circumstances. Libraries are safest in the long term if they can own the content outright rather than licensing, as are consumers. But it will be a long time before there is clarity about the legal way to transfer owner of a digital file at the consumer level.

Conclusion

Librarians and publishers have a complicated relationship. We need each other if either is to succeed, but even if our ends are the ultimately the same, our means are very different. These recent events indicate that there is still much in flux and plenty of room for constructive dialog with content creators and publishers.