Kansas is a state that is still primarily rural with an estimated 33 people per square mile, compared to the U.S. average of 79.6. The Kansas State Library dates to 1863 and provides the typical educational, advocacy, and collaborative purchasing that marks other state libraries and multi-type networks. Kansas negotiated its first ebook state-wide contract 6 years ago and given the rural nature of the state and increasing availability of internet access, this became a popular service. That original contact—which included the provision of audio books—was signed with OverDrive in December 2005.

What happened next is the stuff of heroes and legends—or at least history books—what some reporters have called “unprecedented,” whose efforts are intended to “wrest” the budding ebook investment from the grip of today’s arcane (or even repressive) publisher-defined structure. And it happened in Kansas with the starring role played by State Librarian Jo Budler.

Kansas Draws the Line on Ebooks

With the need for a new state-wide ebook contract looming, Budler began negotiations with current vendor, OverDrive. The contract she received shocked her. “It was the price increase—700% over the last contract that floored me,” says Budler. “I explained that this wasn't acceptable. OverDrive came back with an offer of $600 per library per year. That would be hundreds of thousands of dollars. That, also wasn’t acceptable. We now pay $10,800 annually. Their last offer was for $25,000 for the first year, $50,000 in 2013 and $75,000 in the third and last year of the contract.”

However, Budler also looked at other aspects of the new contract. “I went through the new contracts against the old one line-by-line,” she relates. “Clause 11.4, that’s what really got to me. I noticed a compelling change in clause 11.4. The existing contact referred to the ebooks as ‘content purchased,’ which we interpret as OverDrive being required to cooperate in the transfer of content to another service provider if the contract were terminated. In the new contract, OverDrive instead pulled the clause, and the new terminology implied that rather than owning the ebook, we were only being granted the license to loan them to library users through the life of the contract.”

Budler then conferred with the state’s attorney general on meaning. The AG agreed with her understanding of the original contract terms, which would allow Kansas to take over content from OverDrive when their contract ended and move this to whatever other platform they desired.

The AG did not feel, on his reading of the contract, that it was necessary, but Budler decided to write letters to each of the publishers with ebook content in their system—all 169 of them. “We work with publishers all the time. They are really our partners in providing information to our users, so I wanted to get them to acknowledge what we were doing.” They haven’t heard from all but have only sent three letters out to each company so far. “This process takes a while because you don’t even know if you are sending the letter to the right person in these large publishing organizations,” so Budler isn’t concerned that they haven’t gotten 100% approval yet; however, over half of the publishers have agreed with their stated intentions.

With OverDrive out of consideration, Budler opened the process to look for other partners. “OverDrive isn't perfect—their platform is notoriously slow and buggy—but I've known Steve Potash for many years and I’m not happy that this has ended. They really aren’t bad people,” she continues. “OverDrive is really caught in a squeeze as a middleman—all of these ebook vendors are—with publishers on one side and libraries and their patrons on the other.”

OverDrive did offer Kansas public libraries the option to pay for its own individual contract with the company, but the libraries held firm. Budler did note that had it not been for the different contract terms and pricing, they probably would have stayed with OverDrive, despite the uneven reputation of the platform and the support that the state library had to make. The library has had 1 FTE assigned to provide state-wide support to users and libraries, an expensive proposition. “This is just sad,” Budler lamented. “Let’s all gain from this. Collaborate together, no one wins or loses.”

Budler worked hard to keep communication lines going with librarians across the state with emails and even state-wide live online sessions to discuss the situation. The winning provider for ebooks was 3M’s new cloud-based platform and the contract for audio books is going to Recorded Books. Recorded Books has no problem in getting Kansas libraries access to audio books without a gap.

Although media have reported that there will be a gap in ebook coverage in Kansas, Budler is happy to clarify that “there will be no gap. We are working with 3M on their beta platform, which will be ready for us before their official cloud launch in 2012. The only ‘gap’ we have is that many librarians throughout our state stopped buying ebooks while all this was going on.” This ‘buying freeze’ began as much as 9 months ago—why buy content that you might lose in as little as a year—and Budler believes that “the most important thing now is that we’re going to start buying content again.”

Moving to the Cloud

The development of cloud services is happening very quickly today. Some of the largest international retail giants are marking out their territory, signing on publishers and working to develop their own unique services to attract users.

The 3M Cloud Library will have ebooks accessible for PCs, iPads and Nooks as well as smart phones and other mobile devices upon launch in January 2012. Citing a 43% failure rate by patrons trying to check out ebooks for the first time—needing, in effect, two layers of authentication (at the library website and in the vendor site)—3M claims its Cloud-ID technology is “as simple and user-friendly as possible in order to live up to their potential for improving efficiency and ultimately the user experience.” 3M’s Tom Mercer would remind libraries of their long-term partnerships with libraries for products as well as information systems going back to CD-ROM in the 1980s: “3M continues to blaze the trail in improving the library patron’s experience.” The company is now signing up publishers and today has more than 100,000 titles for its Cloud system. For folks who don’t own these devices, 3M intends to lend out hardware through libraries as well.

OverDrive continues to hone its own services as well. Earlier this month it announced its WIN platform (“Want It Now”) with a network of 15,000 libraries worldwide, offering both discovery and the potential for sell-through profits to library website visitors who discover some title and link to a bookseller or publisher for purchase. This would align with efforts of giants like Amazon and Google, as well as put OverDrive on the same page as worldcat.org for discovery. This new venture has been applauded by libraries who “will have the ability to reference, browse, sample and provide a connecting point to entire catalogs of ebook titles, allowing us to serve our patrons and community in the best way possible,” notes New York Public Library’s Christopher Platt. Overdrive is also working with Amazon to allow an estimated 11,000 U.S. libraries to lend books directly to Kindle devices through their OverDrive eMediaLibrary (http://emedialibrary.lib.overdrive.com).

Amazon’s Kindle Cloud Reader, announced Aug. 10, also expands its services, features, and device line-up. This month, these have been joined by Apple’s iCloud service, which carries the slogan of “your documents/music/mail/calendars/contracts/etc. on all your devices.” Netflix, Walmart, and other distributors are also reportedly planning moves into other entertainment/content areas.

The 21^st century entertainment and media infrastructure seems to be evolving with little concern for the rights or long-term interests of individuals or the involvement of regulators such as the FCC and FTC. Recent research has found that, today, there are more mobile subscribers in the U.S. than people—no wonder this area is getting such massive industry attention.

Enormous Potential Yet Lingering Problems

The Kansas case brings up a variety of important issues and problems with ebooks today: The issues of platform, buyers rights, and the very structure of the ebook industry. In a letter to “Library Partners” in February 2011, OverDrive’s Potash noted that they had been “required to accept and accommodate new terms for ebook lending as established by certain publishers.” This included the infamous HarperCollins decision to limit circulation/lending of each of their titles to 26 before the library would need to re-pay for added access. Under conditions such as these, any vendor has little room or authority to truly negotiate terms.

OverDrive isn’t the only platform with a notoriously bad interface—in fact, few of the ebook-specific interfaces are particularly elegant in appearance, easy or quick to use. Not that all ebooks suffer from this. Publisher sites (such as SAGE, Wiley, and Springer) are very functional, fast, and full-featured. Device-based systems make at least the casual reading of ebooks virtually transparent to the user.

“I really think that the current ebook model is very poor,” explains Budler. “It’s like buying bookcases with books already on them. I’d much rather buy them separately—getting the platform that’s best for our users and then the content that we need and want.”

Ebooks vendors are truly caught in a lose-lose situation today. They need to cooperate and support publishers in order to get their business—and without a full stable of publishers, their businesses won’t last. On the other hand, they need to offer libraries and their users a solid catalog with a usable interface at a reasonable price in bad economic times. On top of this, they have their own self-interests at stake, to maintain profitability and the viability of their companies.

The publishing industry carries much of the blame for today’s confusing ebook landscape. Until publishers figure out how to model their 21^st century publishing businesses, we will continue to see klunky, ill-conceived platforms (built to control, not easy to use—which they apparently see as enabling copyright violations and ‘stealing’ content), bizarre cost structures, questionable copyright and use agreements, and pricing that just doesn’t match the value of these materials.

“Proprietary standards, lack of portability and lack of trusted third party archives are major problems that must be solved for the ebook to become the standard bearer the printed book has been,” explains Charles Hamaker, associate university librarian collection development and electronic resources at the University of North Carolina, Charlotte. “License terms for what the individual library needs from the vendor have to be discussed and open upfront, or no one will know what rights transfer with a 'purchase.' Sometimes the language of contracts for e-products is so dense, only a lawyer can understand what is being agreed to, and more and more libraries need legal expertise to handle the complexity of licensing.”

Libraries Are Not Without Fault

San Rafael Public Library’s Sarah Houghton believes that the entire licensing era has been a failure: “Nearly all ebooks in libraries today are licensed, not owned. If this had been a conscious mass decision by libraries worldwide, that would be one thing. But we fell into this and simply accepted this radical shift in our greedy eagerness to offer digital content, any digital content, to our communities. This was a huge mistake and one that we’re trying to back-pedal on now. I think that licensing could work, but it will destroy libraries’ role as the cultural record preservation entities in our communities.”

Houghton, who blogs as Librarian in Black about library issues, believes that lack of technology strategy has hindered libraries’ developments of innovative 21^st century technology-based services: “We need a functional and self-sustaining non-profit model to distribute digital content. Why provide millions in profits to a company to do something a well-organized and trim non-profit could do instead? There are organizations moving toward this goal, including the Internet Archive’s OpenLibrary project, Library Renewal, and others.” Perhaps the Digital Public Library model will also rise to meet the challenge.

Seeking Partners, Not Enemies

“We really aren’t the enemy,” Budler implores. “I believe when people use libraries they also go out and buy more books. We need to collaborate as partners—libraries and publishers. Let’s all gain from this.”

One idea that Budler intends to propose to publishers is one that would “meld ownership and leasing of ebooks. Often with new titles, we have waiting lists of 100 people. Maybe we could buy-to-own a couple of copies while temporarily leasing more accesses to cover the initial bump in interest.”

“The public libraries have been prominent in the move towards the ebook implementation in libraries, so they are sort of the proverbial canary in this area,” Hamaker concedes. For the time being, given Budler’s persistence and gumption, we have an interesting line being drawn in the sand in favor of our users and our institutions. The next move in this chess match would appear to be up to publishers and their representatives.

“I know that the press has called this a crisis, which I don’t think it really is. This has been some process, but we always had the support of our Attorney General and the knowledge of what our contract guaranteed us,” Budler asserts. “A larger issue for us right now is our broadband crisis—our state’s vendor is in jeopardy and it is uncertain now what will happen, but we may be facing a disruption in service, which would be serious for not just ebook access but virtually all of our online services and products.” But that’s another story.....