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Old 07-04-2011, 10:53 AM   #1
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Kansas State Librarian Argues Consortium Owns Content from OverDrive

Kansas State Librarian Argues Consortium Owns, Not Licenses, Content from OverDrive
"The state librarian of Kansas, with the backing of state attorney general's office, is planning to terminate the Kansas Digital Library Consortium's contract with ebook vendor OverDrive and is asserting the bold argument that the consortium has purchased, not licensed, its ebook content from OverDrive and, therefore, has the right to transfer the content to a new service provider."


Background
Kansas State Librarian Goes Eyeball to Eyeball with OverDrive in Contract Talks
"The state librarian of Kansas is playing country hardball with ebook vendor OverDrive, rejecting contract renewal proposals that, in one case, would have increased administrative fees nearly 700 percent by 2014."

Interesting times.
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Old 07-04-2011, 01:55 PM   #2
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I find it really interesting that Overdrive has had that clause in their contracts about the portability of content for all this time, but apparently no guideline or procedure for exercising it. And now that they actually have a viable competitor in 3M, they're trying to remove it.

It will be really interesting to see if the major Publishers who allow digital lending will be on board with this. I know I've heard concern from our librarians here about increasing investment in digital content (Overdrive) with no protection against unreasonable fee increasing and weak protection in regards to permanency of access.
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Old 07-04-2011, 02:44 PM   #3
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At the time of the original transaction, was it specified to be a lease, or a sale?

In US law, Overdive and the publishers are stuck in the concrete of that wording.
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Old 07-04-2011, 03:09 PM   #4
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Based on the contract bits cited in the article, it looks like the librarian may be right. However, I wonder what the consequences will be. Is 3M's new services as good as OD's? Will it be able to provide the same number of new books as OD? Does (or will, or can) 3M have an agreement with Kindle like OD?
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Old 07-04-2011, 04:07 PM   #5
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Who thinks it's ok to use the word "consortium" in an organization name? Unless you're a group of comic book villains.
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Old 07-04-2011, 09:04 PM   #6
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"The state librarian of Kansas, with the backing of state attorney general's office, "

I would be better at doing brain surgery with a hammer than trying to make any attempt at understanding the law. But I would guess that if their attorney general's office is going ahead with it they must think that there is some possibility of winning.


When I first bought software I bought my copy of the software and could sell it so long as I didn't keep a copy. (Yes, it was a long time ago.)

Nowadays people purchase a right to use the software for a time on one (or with multiple licenses, more than one) computer under certain restrictions. I don't even want to use the word "buy".

If they win, it might mean that they actually own their copy of the material (ebooks, emusic, etc). This'll probably go on for years. The industries involved can't let people (or even governments) actually own what they pay for. (And, yes, I am being sarcastic.)
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Old 07-05-2011, 12:28 PM   #7
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Quote:
Originally Posted by Phogg View Post
At the time of the original transaction, was it specified to be a lease, or a sale?

In US law, Overdive and the publishers are stuck in the concrete of that wording.
That isn't necessarily true. Adobe argued in Softman v. Adobe that software bundled with a new computer was licensed, not bought, and the terms backed them up. But under California law, a one time payment for indefinite use makes it a sale of goods, regardless of what the contract says, and copyrights are governed by copyright law, not contract law. And copyright law explicitly protects rights for both sides of the deal. Once it's a sale of goods, the first sale doctrine comes in to play.

Be interesting to see how this plays out.
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Old 07-05-2011, 12:50 PM   #8
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"Consortium shall obtain permissions and consent from the owners of the Digital Product authorizing DLR to transfer the Content."
This is the critical point. All the clause really stipulates is that Overdrive will transfer content to the new service provider. It is not clear that Overdrive ever had the authorization to sell the content in the sense of more than a license to lend.
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Old 07-05-2011, 01:29 PM   #9
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This could all get pretty interesting.
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Old 07-05-2011, 08:37 PM   #10
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I am impressed that a public servant picked up on the change in contract and acted upon it.

Helen
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Old 07-05-2011, 09:01 PM   #11
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I am impressed that a public servant picked up on the change in contract and acted upon it.

Helen

This is not just ANY public servant, this is a LIBRARIAN!
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Old 07-05-2011, 09:57 PM   #12
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This is not just ANY public servant, this is a LIBRARIAN!
Even more impressive. Has someone informed Ripley's?
Kudos to the librarian.
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Old 07-05-2011, 10:24 PM   #13
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This is not just ANY public servant, this is a LIBRARIAN!

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Old 07-05-2011, 10:28 PM   #14
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Yeah, like that!
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Old 07-06-2011, 06:42 AM   #15
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None of us have seen the actual contracts. Overdrive isn't saying anything (wisely, since the AG's office is involved), so you're basically getting one side of the story. And, of course, the librarians don't have a contract with 3M or anyone else yet to which they would transfer management of the content.

The Kansas libraries got a sweetheart deal in 2006, and their fees have remained a flat $10,000 per year despite a 10x increase in usage (or any expected future increases). The increase, by the way, apparently ends up as an average of $200 in admin fees per library, per year.

The libraries are justified in knowing whether they're licensing or purchasing content, and I do agree that it's legitimate to choose a service based on whether you purchase or license content. But it sounds like they are also not willing to pay what the service really costs. As such, my sympathy for them is somewhat limited.
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