or, The Hitchhiker’s Guide to Fear and Loathing at a Public Library Reference Desk

Update on Kirtsaeng v. Wiley

   November 7th, 2012 Brian Herzog

You've Been Owned: Stand Up For Digital First SaleEven though the election is over*, I wanted to keep things within the world of Government by providing an update on the Kirtsaeng v. Wiley Supreme Court case.

Oral arguments were heard last week, and things actually sound promising based on SCOTUSblog's recap of the arguments. Justice Breyer focused on the "parade of horribles" that could be the unintended consequences of Wiley's position - which Wiley's lawyer attempted to dismiss as not part of this case - to which Justice Kennedy responded

You’re aware of the fact that if we write an opinion with the . . . rule that you propose, that we should, as a matter of common sense, ask about the consequences of that rule.

And this is the entire issue for me - the state of the first sale doctrine after this decision. LISNews had a good, but frightening, characterization:

Notably, [Wiley's lawyer] didn't back away from the more extreme consequences of his client's win at the 2nd Circuit. If Wiley wins, he said, institutions like museums and libraries might need to get licenses from copyright owners for their activities.

More reading on this:

A ruling on the case is expected by June.

And a slight tangent: while I was looking for information on this case online, I came across Citizens for Ownership Rights - interesting.


*The 2016 campaign season starts today!

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Important Supreme Court Case: Kirtsaeng v. John Wiley & Sons

   October 10th, 2012 Brian Herzog

I like it when issues are so relevant to me that I couldn't miss them if I tried.

Early last week, I was coordinating with a speaker for the upcoming NELA conference, when he mentioned the Supreme Court Case of Kirtsaeng v. John Wiley & Sons, Inc.. It sounded vaguely familiar, but since I knew I could hear him talk about it next week, I didn't really pursue it.

A few days later, the same case showed up on BoingBoing, , nicely summarized:

Writing in MarketWatch, Jennifer Waters explains the implications of a Supreme Court case, Kirtsaeng v. John Wiley & Sons, which turns on the question of whether you have the right to re-sell things you buy out of the country, or whether the copyrights embodied by your phones, clothes, gadgets, books, music, DVDs, and other possessions mean that you can't sell your stuff without permission from the original manufacturer.

Following Wiley's theory, you don't really own most of your possessions. You share ownership in your goods with the companies that made the goods you "bought" from them, and they get a veto over your disposal of them, and can also demand a cut of the proceeds.

It seems like something this ridiculous-sounding couldn't possibly come to pass, but remember this is also the Court that said corporations are people, sometimes.

And more significantly, a major publisher is involved. Here's where things started:

Wiley & Sons, a U.S. based textbook publisher with foreign affiliates, originally filed suit in the Southern District Court of New York against a Thai individual studying in the United States who obtained cheaper foreign-made editions of Wiley textbooks, printed by Wiley Asia, that he then resold on eBay in the U.S. for a profit. The District Court held that the first sale doctrine applies only to works manufactured in the United States.

We've already kissed the First Sale Doctrine goodbye with ebooks, and now it looks like applying it to physical items is threatened too. It seems like this would mean, at the very least, libraries would need to check all our books for "Printed in the USA" before we could resell them at a booksale, or else we risk breaking the law. But taken to the ridiculous extreme, it also sounds like individuals would have difficulty reselling almost anything made overseas - cell phones, cars, clothes, DVDs, etc.

The FBI will have to create a new task force, which could be dubbed "The Garage Sale Police," to enforce this if it becomes new copyright law. And in my opinion, anything that sounds like a reality show has got to be a bad idea.

But seriously, this is definitely something to pay attention to. Read more on MarketWatch and the Harvard Journal of Law & Technology Digest.

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Tech Trends from MLA2010

   April 29th, 2010 Brian Herzog

Locked BikeI was at MLA2010 yesterday and participated in a panel discussion of Top Tech Trends (it was good, and if I find the other talks online I'll link to them). The two trends I chose aren't exactly new, but are two things I think will have an impact at the reference desk. They deal with ownership of the resources we offer to the public.

[note: this post might not be news to anyone, but the links from which I drew my information are worth reading]

Trend One: Subscription Databases
This has been a pretty happy segment of the library world for a long time, and libraries probably are familiar and comfortable with subscribing to and offering this kind of content. But in the last couple years, new exclusive deals signed between publishers and database vendors has limited access to many popular periodicals (this also happened last year with Consumer Reports).

EBSCO was the focus of much criticism, but Library Journal reports that the publishers are also interested in exclusive contracts. I don't mean to vilify them, because businesses will always act in their own self-interest. But I couldn't tell what bothered me more: loss of access to these periodicals, or corporate press releases [pdf] saying these contracts were in libraries' best interest - there is a difference between "all libraries" and "libraries that are our customers," which is a distinction database vendors don't seem to make.

We non-customers can't afford to keep buying more and more subscriptions because these exclusive deals demand it, so our patrons lose out. The bottom line is that it took resources away from many libraries, and I'm sure this isn't the end of it.

Trend Two: Ebooks
People might be sick of hearing about ebooks* already. However, since it contains the word "books," there is a natural expectation for libraries to offer them, so you can either jump or be dragged into this discussion.

The problematic trend is that the "e" part of ebooks makes them an entirely different animal from print books. Lots of people are trying to figure out how libraries can offer them to patrons, but ebooks have the potential to drastically change the publishing industry (including a power struggle within the distribution chain), and there's no nice model right now that seems to include libraries.

Another problem (for libraries) is that the two most talk-about ebooks readers (the Kindle and the iPad) are also the most restrictive. Like publishers and database vendors, Amazon and Apple are companies acting in their own self-interest, and what they're interested in is sales. Their tactic to maximize their sales is to control where the customers can get ebooks - which excludes libraries.

At least right now: the same thing was true with the iPod and Overdrive audiobooks - when we initially signed up with Overdrive, they did not work on the iPod (which is what all of our patrons had). Eventually Apple relented, so I'm hopeful they'll also eventually open up the iPad to outside ebook sources.

However, there is a case to be made that the iPad is not designed for reading anyway.

Statistics for the Future
Ebooks are popular, but right now they only account for 2-5% of overall book sales. That seems small, but library sales are about 4%. Ebook sales will definitely grow, whereas library sales probably will not. Since the future of ebooks will hinge on decisions made by businesses, libraries will need to speak up to make sure we have a role in this market.

Bonus Trend: HTML5
Something I forgot to mention in my talk also related to the iPad: watching videos online using Flash might be a thing of the past, because the iPad does not support Flash (per Steve Jobs). Instead, the iPad is looking to HTML5, and so is Google. The most obvious impact will be in Flash-based like Youtube and Hulu, but it's worth reading about HTML5 to get an idea of what the web might look like in the next few years.


*I don't know if there is an official style guide for these things, but I decided to always spell "ebooks" the same way I spell "email." If it starts a sentence the first letter gets capitalized, but otherwise it's always all in lowercase, as opposed to eBooks, e-books, etc.

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Kindles, Orwell, Libraries, and Ownership

   July 21st, 2009 Brian Herzog

Kindle, burningHopefully by now everyone has read David Pogue's NYT article about Amazon deleting Orwell's books from its customers' Kindles. Even though it's been covered elsewhere, I wanted to throw in my two cents.

First, yes, it was shocking Amazon did this. Not that they could do it, but that, 1) they felt it was necessary, and 2) they just went ahead and did it. @librarythingtim linked to a good explanation of the whys and wherefores.

Hopefully libraries considering adding Kindles to their collections will take note. I'm not against ebooks, but I think too many people equate them physical books - and they are not that.

They are information, and libraries are right to pay attention to them. But customers, obviously, don't own them in the same sense they own a physical book. Ebook vendors have gone out of their way to convince us of this, but DRM technology is simply designed to the contrary.

In the library world, ebooks are more akin to databases than real books. We have access, not ownership. Database contents and interfaces change beyond our control (although usually we're notified first), but we're okay with that, because we understand that. Overdrive downloadable audiobooks are very similar - Overdrive says we "own" the books we buy from them, but if we ended our contract and lost access to their interface (or they went out of business), how useful would those ebooks be?

So I think it's the same with the Kindle. It's a technology not at all designed for libraries anyway, but lots of patrons are asking about it. However, what would library staff say to the patron who brought in their on-loan Kindle to complain that 1984 is just gone?

Or worse, what if down the road Amazon decides it doesn't like libraries loaning Kindles loaded with books, and just shuts down libraries' accounts and deletes their books? It might credit the money to their accounts, but is that only good towards the Kindle Store? And what could the library do with their expensive, empty gadgets?

But I do think libraries need to try to make this work. We just need to recognize that we have very little control in this arena. And then, we can develop policies and procedures around it, or we can work to change it. I vote for change.

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