Kansas State Librarian Argues Consortium Owns Content from OverDrive

SameOldStory · 07-04-2011, 10:53 AM

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.

abookreader · 07-04-2011, 01:55 PM

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.

Phogg · 07-04-2011, 02:44 PM

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.

Andrew H. · 07-04-2011, 03:09 PM

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?

OtterBooks · 07-04-2011, 04:07 PM

Who thinks it's ok to use the word "consortium" in an organization name? Unless you're a group of comic book villains.

SameOldStory · 07-04-2011, 09:04 PM

"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.)

taustin · 07-05-2011, 12:28 PM

Quote:

Originally Posted by Phogg

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.

Hamlet53 · 07-05-2011, 12:50 PM

Quote:

"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.

RainingLemur · 07-05-2011, 01:29 PM

This could all get pretty interesting.

speakingtohe · 07-05-2011, 08:37 PM

I am impressed that a public servant picked up on the change in contract and acted upon it.

Helen

kennyc · 07-05-2011, 09:01 PM

Quote:

Originally Posted by speakingtohe

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!

speakingtohe · 07-05-2011, 09:57 PM

Quote:

This is not just ANY public servant, this is a LIBRARIAN!

Even more impressive. Has someone informed Ripley's?
Kudos to the librarian.
Helen

Dulin's Books · 07-05-2011, 10:24 PM

Quote:

Originally Posted by kennyc

This is not just ANY public servant, this is a LIBRARIAN!

kennyc · 07-05-2011, 10:28 PM

Yeah, like that!

Kali Yuga · 07-06-2011, 06:42 AM

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.

07-04-2011, 10:53 AM	#1
SameOldStory My True Self Posts: 3,126 Karma: 66242098 Join Date: Apr 2010 Location: Trantor, Galactic Center Device: Galaxy Tab 2 7.0	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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07-04-2011, 01:55 PM	#2
abookreader Wizard Posts: 1,516 Karma: 2567610 Join Date: Oct 2009 Device: Kindles - Keyboard, Fire, 2-US, iPhone, iPAD	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.

07-04-2011, 02:44 PM	#3
Phogg PHD in Horribleness Posts: 2,320 Karma: 23599604 Join Date: Dec 2008 Location: In the ironbound section, near avenue L Device: Just a whole bunch. I guess I am a collector now.	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.

07-04-2011, 03:09 PM	#4
Andrew H. Grand Master of Flowers Posts: 2,201 Karma: 8389072 Join Date: Oct 2010 Location: Naptown Device: Kindle PW, Kindle 3 (aka Keyboard), iPhone, iPad 3 (not for reading)	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?

07-04-2011, 04:07 PM	#5
OtterBooks Wizard Posts: 1,262 Karma: 2979086 Join Date: Nov 2010 Device: Kindle 4, iPad Mini/Retina	Who thinks it's ok to use the word "consortium" in an organization name? Unless you're a group of comic book villains.

07-04-2011, 09:04 PM	#6
SameOldStory My True Self Posts: 3,126 Karma: 66242098 Join Date: Apr 2010 Location: Trantor, Galactic Center Device: Galaxy Tab 2 7.0	"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.)

07-05-2011, 01:29 PM	#9
RainingLemur Spork Connoisseur Posts: 2,355 Karma: 16780603 Join Date: Mar 2011 Device: Nook Color	This could all get pretty interesting.

07-05-2011, 08:37 PM	#10
speakingtohe Wizard Posts: 4,812 Karma: 26912940 Join Date: Apr 2010 Device: sony PRS-T1 and T3, Kobo Mini and Aura HD, Tablet	I am impressed that a public servant picked up on the change in contract and acted upon it. Helen

07-05-2011, 10:28 PM	#14
kennyc The Dank Side of the Moon Posts: 35,930 Karma: 119747553 Join Date: Sep 2009 Location: Denver, CO Device: Kindle2 & PW, Onyx Boox Go6	Yeah, like that!

07-06-2011, 06:42 AM	#15
Kali Yuga Professional Contrarian Posts: 2,045 Karma: 3289631 Join Date: Mar 2009 Device: Kindle 4 No Touchie	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.