Kansas State Librarian Argues Consortium Owns, Not Licenses, Content from OverDrive
By Michael Kelley Jun 20, 2011The 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.
Jo Budler, the state librarian, said she is in negotiations with other platform providers, and that the state consortium will become a beta tester of 3M's new Cloud Library eBook lending service, which will debut this week at the American Library Association's annual conference in New Orleans. (3M announced today several other beta testers as well.).
Budler is asserting ownership of all the consortium's content on OverDrive's platform, which represents a $568,000 investment from December 2005 to June 2010, with one exception: the MaxAccess subscription it has with OverDrive for audiobooks. Budler refused to sign a renewal contract with OverDrive not only because it would have raised fees nearly 700 percent by 2014 but also would have rewritten the clause upon which Budler is basing her right to transfer content.
Jeff Chanay, the deputy attoney general for the civil litigation division, whose aid Budler enlisted, said it was his department's position that the consortium owns the content and has the right to move it.
"We are making every attempt to comply with contract provisions regarding transfer of content," he said.
The contract section in question, clause 11.4, reads in part as follows:
"... (i)n the event of termination, DLR [OverDrive] will cooperate with the Consortium to transfer any and all Digital Products and content purchased from DLR or independently owned by Consortium to another service provider to permit Library to continue to serve its Patrons with Digital Products. For Digital Products that Consortium has purchased from DLR, Consortium shall obtain permissions and consent from the owners of the Digital Product authorizing DLR to transfer the Content."
Jeff Hickson, the state library director of statewide resource sharing, said that because the contract uses the phrase "content purchased" from OverDrive (DLR refers to OverDrive and stands for Digital Library Reserve, Inc.) that the state library has a basis for claiming ownership of the content.
"And the contract with OverDrive says they would assist us in moving content to another provider," he said.
OverDrive declined to answer specific questions, but released this statement:
"It is our goal to provide continued access and continuity of service for all of our Kansas library partners and their readers. However, we will cooperate with the State Library of Kansas and our publisher partners in the event of contract termination."
Rewriting the contract
In a contract renewal proposal from OverDrive that Budler rejected, OverDrive rewrote clause 11.4, which Kansas is basing its argument on, and deleted any references to purchase, instead limiting the relevant section to "Consortium shall make no further use of all or any part of the Application Services (including any and all Content) ...."
"I think what it is with OverDrive is that they gave us that clause of moving it and they did it at the time when no one was around, but now that they have competitors they are putting in that if you walk away from OverDrive you don't take your content with you," Budler said.
Budler said the current contract, which expires in December, required the state library to obtain permission from the publishers to transfer the content. As a result, she has sent two rounds of letters to 168 publishers (on May 16 and June 10) seeking their consent "to transfer this digital content from the current platform supplied by OverDrive to a new platform provider. It is understood that the same Digital Rights Management and the same user restrictions (one copy, one user) will be enforced by the new platform provider," the June 10 letter reads.
"I'm not sure [publishers' permission] is absolutely required but certainly we are making a good faith effort to comply with the contract's terms," said Chanay, who assisted Budler in writing the letters.
Chanay said that at some point "it may become a bigger deal" if some publisher decided to take issue with the transfer of content.
"Right now we are waiting for responses to come back, as they have been steadily, but at some point we might have to step in and have direct communications with those publishers [who might object]," he said. "But at least we haven't had to do that so far."
"We've gotten over 45 responses," Budler said. "Every day I have somebody report back to me. The big guys haven't responded yet. The quickest ones to respond were the smallest publishers. Now I think we'll hear from others to," she said.
"But we shouldn't have to hop through all these hoops to move from one platform to another," Budler said. "They [OverDrive] never said we can't move that content. What I'm doing is just reading the contract and trying to follow it. They don't make it easy to move it. They just won't really talk with us at all," she said.
Joining 3M beta phase
The situation has provided an opening for 3M, which had been putting the word out through its sales representatives that it was looking for beta testers for its new platform. Budler heard about it and reached out to Tom Mercer, who works in digital business development for 3M and leads the 3M Cloud Library effort.
"I think we both saw it as a really good fit, and if Kansas secures the rights to transfer content we can help facilitate the transfer," Mercer said.
The other 3M beta testers are the Saint Paul Public Library, MN; the Bergen County Cooperative Library System, NJ; Maricopa County Library District, AZ; Douglas County Libraries, CO; Darien Library, CT; and Richland County Public Library, SC.
"We see it is a growing market space as libraries shift to digital titles, and we see a great opportunity to expand our footprint," Mercer said. "It is a really interesting space and a chance for an elegant technology product to satisfy libraries and their patrons," he said. The cloud-based system will be "just like a retail experience," he said.
Budler said that it was good to have alternatives.
"Before the emergence of 3M I was a little worried about what we were going to do," Budler said. "There are other possibilities out there. We're excited about that and we are pretty sure that we are going to end up with a service that is easier for users to download," she said.
