HarperCollins staff attending were Virginia Stanley, Director of Marketing, Josh Marwell, President of Sales and Adam Silverman, Senior Business Manager.

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The meeting between the ALA OITP eBook Task Force and HarperCollins was a welcome and important opportunity to begin discussions between major trade publishers and libraries. We noted that while libraries have ridden out multiple format changes in other media, the transition to ebooks is meaningfully different, with broader ramifications, than those in the past.

The meeting was initiated by a comparison of estimated per circulation costs for different types of print books versus digital in different kinds of libraries, such as public or school. This discussion highlighted the pitfalls in assuming that every kind of published work could be suitably described in a common revenue model.

At that point, various ways of re-conceptualizing how the published catalog might be acquired and utilized were arrayed: this became the heart of our conversation, and while it discussed current service models and providers in the library market, it definitely did not assume a static position. Additionally, awareness of the growing number of self- and independently published works is alerting libraries to the need for new collection strategies and partnerships.

We discussed ways it might be possible to differentiate acquisition and circulation models for blockbluster or heavy selling titles from normal frontlist or midlist material; or whether it might be possible to acquire a complete set, or obtain a subscription to, all backlist titles from any given publisher by a library consortia. (Interestingly, there was no discussion of Google’s proposed GBS settlement-based Institutional Subscription; the low value proposition given both the academic source material and the holdings gaps resulting from publisher Partners Program opt-outs may have rendered it inconsequential to both the publisher and library parties at the table.)

The task force raised the possibility of libraries providing their own digital book services without relying on intermediaries by forming library-operated digital book consortia, loosely modeled on the recommendation of the COSLA report [pdf]; technically, a single national library-controlled service with a new governance model could be spawned. However, because most public library funding is community or State based, it may be more straightforward to create State-level consortia, or linked State consortia. Since it is inherently possible to split the service layer from the revenue vector, these new extra-local consortial models need not imply a diminution of income for publishers; it’s also conceivable they might streamline accounting for both parties in a cost-saving manner.

We also discussed the conundrum of digital ownership versus licensing. The challenge is how to ensure adequate compensation to rightsholders while endorsing the continuity of the key library function of retaining titles for preservation, and whether it was feasible to generate acquisition models that permitted libraries to own copies of digital books in a traditional sense while specifying business models for publishers, perhaps on a tbd per-circulation basis (or a capitated basis for a service area) with allowances for purchase price. Since ownership and revenue can be differentiated, this is another example of how traditional library services need not threaten essential publisher goals. It is also an example of how we can embrace copyright law without enervating it through licensing.

We closed with early-stage discussion of the ways that publishers and libraries, communicating more deeply, might be able to share with each other various types of high-level usage data that would augment both library and publisher positions, such as interest in certain types of titles, or geographic distributions of readership, and so forth. These new models of data sharing, while remaining cognizant of and protecting the critical value for libraries of reader privacy, are made possible by the digital transition and might indeed be best delivered by entirely new models of both acquisition and provision of digital books.

All sides of the table were very open to further discussion of these opportunities, and indeed we recognized that the process of clarifying the goals for each party – answering the question: “what do publishers (or libraries) want out of a digital world?” – is not an easy one, but it is one that we must answer together.

The Google Settlement issue did not seem as important as it did two years earlier. In part this is because the publishing and distribution landscapes have changed rapidly. Today there are more distribution channels for ebooks, the Hathi Trust continues to grow, various publishers have initiated their own ebook programs, etc. The ebook market—including access to out of print works—is becoming increasingly varied and competitive.

As the summer spins closer to the Google Book Search settlement status conference on July 19, a variety of nuanced speculations are beginning to emerge around the set of possible scenarios that might develop in the months ahead (solid answers are not expected to emerge as early as July).

At the 2010 February 18 hearing in the SDNY, Google clearly stated that an opt-in regime was not particularly appealing to them, yet the 2011 March 22 ruling that came from the court suggested that such a path was the only one favorable to a positive review. Much of the debate therefore has centered on the parameters around which an opt-in regime might emerge. It is widely expected that all or most non-display uses would be represented in a revised settlement under an opt-out basis; unfortunately for cultural sector organizations, these are the uses that are most likely to legitimately fall under a Fair Use exemption. It remains to be seen if an opt-out endorsement for snippet view would harm the ability of libraries to assert copyright exception for similar uses for their own digital collections.

Arguably, not just Google would see diminished benefit from an all-parties opt-in regime for commercial uses. For many publishers, the existing Google Partners Program permits a degree of control over terms of access and revenue distribution that is unavailable through the settlement. At the cost of some bright-line clarity over author-publisher distributions associated with older contracts, publishers lose only the availability of an institutional subscription database (ISD); a revenue model that is increasingly faulted for its coverage gaps as trade publishers pull out their more attractive titles, and academic publishers waver towards more open access principles under pressure from their host institutions and faculty authors. Additionally, academic catalog initiatives from Project Muse and JSTOR are likely to claim an ever-growing portion of university press backlists, and as trade backlist titles are digitized and enter markets at Amazon, Barnes & Noble, and Kobo, only smaller or niche publishers with fewer resources might benefit from settlement clauses. They are not the ones at the bargaining table.

It is conceivable that the participant publisher representative body, the Association of American Publishers (AAP) lacks the financial resources to participate in a resumption of costly litigation in a case where even the discovery process was never completed. Indeed, the scope of material available for discovery now is vastly greater, with millions more books scanned and many more agreements with international libraries in place. As the ALA report suggests, the AAP’s most vocal members, the trade publishers, are well aware that the world has moved on – a sentiment widely expressed to me off-hand as recently as the 2011 BookExpo America exposition. It seems entirely conceivable that the publishers might be willing to fold their cards, with only compensation for claims of past infringement as their ticket out of this increasingly dreary poker game.

This would leave the authors to negotiate with Google alone. It is not a far-fetched notion: the class action attorneys for the Authors Guild are operating under the premise that a settlement would fetch them their fair portion of an allocated $45.5 million in attorney fees; there’s a clear financial incentive to see some kind of settlement emerge. But if it is to be authors only, what would an opt-in settlement look like?

In the face of continuing litigation over the split of revenue between authors and publishers for books governed by older contracts which did not anticipate digital availability, it might be appealing for authors with strong rights claims to be able to commercialize their titles. There is no “Authors Program” of the same standing as the publishers program, and while individual authors could attempt to enter into contracts, the entry barrier is relatively high. For many authors, better to have the opportunity to opt-in to commercialization for business models that permit readers to buy individual books that would otherwise not likely be noticed in the market. Although authors can opt for rapidly-emerging self-publishing options that would permit entry in distribution channels, the prospective revenue of many older titles is modest. Inclusion in an Internet scale finding aid would be better than solitary competition against a mass of newly emerging titles and authors.

Calving off the publishers and leaving the authors in a much reduced settlement, while of some benefit to Google, would have other ramifications. For example, it would eliminate any remaining motivation to carry forward an ISD offering, leaving only individual title business models available for refinement.

A crucial unresolved question is whether an author class could be certified. The Court acknowledged that the objections of academic authors to the settlement held merit; party briefs for the settlement stated that the interests of these authors were “plainly inimical” to the interests of the class. There would be a challenge in re-binding academic authors to the goals of a new revision: a challenge, but one conceivably met if the lessened barrier for class representation of opt-in participation was stipulated.

This leaves perhaps the biggest conundrum: the disposition of the Books Rights Registry (BRR). An Authors Guild-only settlement would leave the current conception of the BRR severely under-funded, since it would be starved of significant publisher title revenue. It is conceivable that the BRR could be re-specified as a registry-only service, perhaps with court-appointed oversight to appease some of the private-party concerns expressed by settlement objectors. Excision from the settlement of some administrative burdens, such as author-publisher contract mediation, would permit the BRR to settle into a leaner operational model closer to the European ARROW project. Re-allocation or re-provisioning of licensing income might be another path towards financial stability, but this is an issue of concern for any settlement of reduced ambition. The BRR is the cobbler’s child that has no shoes (or perhaps only huaraches).

This discussion has attempted to illuminate one possible path forward; I present no assertion that this must be the road taken, and while directions such as this are being debated, the complex mix of factors and interests dictates hard against definitive analysis. Still, it is likely to be some form of reduced, hybrid model that emerges from the on-going discussions of the parties in the GBSS in the summer months ahead.

I was intrigued when I saw an announcement for an ARL-CNI meeting, “Achieving Strategic Change in Research Libraries”, to be held in mid October, because Lord knows this is a good time for strategic change. Yet when I clicked through to the program, I was sorely disappointed. The program is oriented toward library directors talking amongst themselves. In the growing string of strategy meetings and whitepaper collections coming from research library organizations, I see many familiar names. While I find these individuals to be brilliant, thoughtful people, I don’t believe much will come out of their talking amongst each other for another day. Library leadership has been discussing emergent roles for libraries for over a decade.

(N.B.: In libraries, the senior executive usually has the title “University Librarian”, and their immediate junior staff, “Associate University Librarian”; these are abbreviated as UL and AUL respectively.)

The current leadership of many of the leading research libraries belongs to a cohort that has held senior management positions for several decades; they have exceeded, or are near, retirement age. The generation beneath them, the late boomers and the Gen X’ers, have often been unable to fully advance in their careers because of the overhanging cliff edge above them. In libraries, archives, and museums – all organizations with astounding levels of commitment and loyalty – theirs will be a Lost Generation. They are not likely to steer these institutions for any long length of time. Instead, Gen X has led – is leading – a Long March.

Even in conversations with the existing leadership, there is wide acknowledgment that the greatest sea change of vision and perspective among librarians, museum and archive staff, rests primarily among those (more or less) in their 20s, into their early to mid 30s. This generation has completely different expectations for information management, privacy, direct access to data and people, interaction with services, and organizational behavior.

It is perhaps in the expectations for organizational conduct that the need for change is greatest, and most immediately wanting. Libraries are supremely hierarchical organizations, not given to matrix management or effective team based project management. Many young librarians do not have any effective means to make substantive comment on change in their institutions; even when their voices are heard, no engagement is offered.

I have heard ULs say that they are all for new initiatives, but their librarian unions are preventing them from making deep structural change. Well, you know what? Unions don’t want to be the last one to turn out the lights either. Don’t blame labor.

When I tweeted my attendee concerns about the program agenda of the ARL-CNI meeting, @ARLnews responded with:

We strive to ID timely topics & speakers based on the forum theme. We have begun talking about how to recruit new ideas & faces… including the “new library generation” so your input is timely & well taken. Thanks again for taking the time to give us feedback.

That’s not what I am talking about. Revolutionary councils don’t form around the existing leadership. Existing leadership has spent its credibility. The changes they led long ago were bold in their time, but this is a new time, with new dangers, and new people must address them.

Here’s what I would like to see:

It’s time for the youngest generation of librarians to gather amongst themselves to discuss change in libraries. This definitely needs to happen in RL, but it can also happen online. This would be a gathering of people that I would denote as “< A/UL” – in other words, lower than (less than) AUL. Not <= AUL. There should be no directors present, no associate directors present. This is not about them. It is about those who will truly redefine the future of libraries. And there will be libraries in the future. And they will kick ass.

This is also not a Taiga-like recitation of calls for change or 5-year predictions for libraries, delivered by AUL level staff. It is not likely that a “community of AUL’s and AD’s challenging the traditional boundaries in libraries” is somehow going to make change happen. I applaud their manifest: “[w]e must develop cross-functional vision that makes internal organizational structures more flexible, agile, and effective. We must move beyond the borders and transcend the traditional library organization.” Yada yada yada.

That’s not enough. There is tremendous skepticism about Taiga in the rank and file. Let Taiga deal with their shifting boundaries, I want to plow under the farmland and gather with those who are madly tossing seeds for wild grasses on the prairies, provoking the native spirits into spring rains. Strategy is for young people.

As a friend observed to me, “v cool. in add’n to younger library staff, I’d also like to see non-librarian library professionals in lib strategy discussions.” Right on. Because the future is not contained within the neat walls of existing research libraries, but among all libraries, and archives and records keeping museums, attempting to redefine their role and purpose in a digital world. We live in a flattened world.

I am not suggesting that out of new conversations will emerge fully formed a blue print for a new class of library. But what I would suggest is: without energetic conversations, without more awareness of the things already being discussed in the hallways, libraries will have a future too long delayed. And that’s more than a problem for libraries. It’s a problem for everyone. By speaking together, we can break the deadlock and move the mountain. Talking about the world we want will help to build that world.

Right now, the best possible thing that ALA could do to reboot the future is to fund support for these meetings and gatherings, encouraging spontaneous leadership. If they cannot do that, then some other vehicle needs to step in and provide the platform where change can be not merely discussed, but architected. Realistically, I suspect that ARL is not the right institution to do this. William Faulkner said it best in Go Down, Moses: “Them that’s going,” he said, “get in the goddamn wagon. Them that aint, get out of the goddamn way.”

It’s too easy to proclaim the knock down – the traditional call out for the terrain-effacing transformation that is eroding the ground underneath us. Today, there is incredible optimism, energy, and enthusiasm in libraries –- at no other point in history has there been such opportunity to reach people with information using such a variety of tools, across such a range of means.

When mobile phones are held in the hands of farmers in the remotest villages across the planet –- the reach of every single library on this planet is now global. As our responsibility, let’s forge that vision.

As we build new digital book infrastructures, it makes sense to imagine what we can recapitulate by building in freedoms and privacy, and how we might ultimately engineer even better environments than we have had in the past. Below is a list of desirable features, grossly incomplete due to my own inability to imagine alternatives to the world we are leaving behind. Please leave better in comments.

1. Reader privacy is a user controlled option, not a whimsical gift from the bookseller. I should be able to choose how much information is obtained and utilized by a book vendor, either directly on my behalf (e.g., on profile based recommending) or to enrich the experience of other readers (collaborative recommending).
2. I own the books that I buy. Books are not munitions, nor they should they ever be subject to an end user license.
3. A bookseller should never ever be able to remove a book from my account , or otherwise render a book unavailable, without my express permission. Never, never, never, ever. ( The 1984 clause.)
4. Digital first sale. I should be able to associate any other reader account with my own for gifting and lending books, on a book by book basis, and at no additional cost, as long as the recipient agrees. These associations might be ephemeral, e.g. the duration of a loan, or persistent, e.g., my partner and I might choose to link our accounts. (One book, one loan).
5. No DRM on purchased books. Readers should not be restricted in their ability to move their owned books among their devices, nor should any barriers be placed in the way of adding or removing devices to their account.
6. Virtual bookshelves should be portable. Readers should be able to create bookshelves in an open format, such as OPDS, and be able to move them from one book platform to another. Over my reading lifetime, I may acquire books from different vendors, and the network-based associations for these titles should be portable. Book platforms should compete on services.
7. I should be able to “mask” books. I should be able to selectively make private my purchases of books from other users or the vendor’s social systems. For reasons of personal health, sexual preferences, or other privacy matters, I should be able to cloak any otherwise permissible data harvesting for whichever books I choose.
8. Book culling is a right. Readers should be able to permanently remove their purchased books from their bookshelves. Readers can throw or give away books they no longer want to own; it should be possible to delete books from a virtual bookshelf.
9. Accounts should be cloud-resident. Readers should be able to manage multiple authorized accounts from any given device.
10. Books are inviolate. I have a right to expect that the books that I buy will not have been maliciously altered, expurgated, or censored without explicit warning.

Add your suggestions!

[A]t the invitation of the AAP and Google I moderated a panel discussion with John Sargent from Macmillan and Richard Sarnoff from Bertelsmann that had the … goal of illuminating for publishers some of the basics of the proposed settlement of the Google Book Search lawsuits. The session was strictly limited to publishers only … .

Both Sargent and Sarnoff were extensively involved in the negotiations of the Google Book Search settlement, and the interview is revealing for the attitudes of the large trade publishers who negotiated the proposed agreement with Google. The attitudes expressed toward libraries, e.g., while sadly not atypical of NY publishers, are striking to those of us who care about the public services that libraries provide.

Cader’s post on the discussion is long; I’ve merely excerpted portions below, attempting to retain the parts most newsworthy. The report originally appeared in Publisher’s Lunch Deluxe, Michael’s superb subscription based news service for the publishing industry. Although little known outside of publishing, I would encourage anyone following publishing and its transformations to subscribe to the free Lunch, and consider the paid version.

Following are some of the highlights of Cader’s reportage. Clarifications in [...] are Cader’s.

Sargent’s opening statement addressed head-on the question of what will happen if the settlement is not approved by the judge. “We will proceed to have litigation for a long time period, perhaps up to five years, during which Google will continue to scan and libraries will continue” to use files in ways that publishers might not like. “The libraries then get to do what they want to do with the scans” and since the law does not allow obtaining monetary awards from state institutions, “there’s a very real danger those files go the way that files do.” … Google’s Tom Turvey agreed with Sargent’s assessment that scanning (and litigation) would proceed in the absence of an approved agreement.

Among the many advantages of the settlement that Sargent forsees are “an agreement that IP is something to be paid for when it is dispersed” and “a way to control those scans [as they are given back to libraries] that is clearly defined.”

Speaking to concerns about Google’s apparently exclusive franchise over orphan works–whatever body that winds up constituting after books are claimed–Sargent acknowledged that “in a plain fact they have a lot of power over those works,” but “anybody has the right to follow in Google’s footsteps if so desired.” Both men anticipate that the financial incentives will lead to the claiming of many works. “If checks start to go out,” Sargent said, “everybody will be claiming.”

Though foreign publishers have objected to what appears to be sweeping authority from the US over their books, Sargent noted that “the advantage…is that you get protection on your works” that would not exist without the settlement.

…

A concern from abroad has been the lack of international representation on the board of the Book Rights Registry, even though works in foreign language have been estimated in the past to potentially comprise half of all the material in academic libraries. Here Sargent disclosed that “we are looking at a two-tier structure for the registry board” and said “we do expect to satisy the concerns of foreign publishers for representation.” He added that they “realize there are lot of constituents that need a voice,” also including an array of scholarly and educational publishers.

Sarnoff would not speak to the revenue that they estimate would be generated from institutional subscriptions under the settlement agreement. But he noted that “just by the level of concern” over potential pricing it’s clear “the library community feels that this product will be enormously attractive.” On the contrary concern–that pricing might not be competitive and that agreements with parties other than Google might not emerge, Sargent noted, “think of all the players who would like to use some of these books now.”

Since I have many Google friends, I am inviting them to respond here to these questions from the ALA, which I am reproducing below.

On the topic of equitable access to information, and more specifically pricing, the proposed settlement allows for differential pricing for different categories of institutions for subscriptions, why? The settlement states institutional subscription pricing will be “based on comparable products and services.” Since no other comparable product or service currently exists, how will Google keep from disparities in access to its product if subscription prices are, or become, too expensive? Finally, the Book Rights Registry established by the proposed settlement (and comprised of equal numbers of representatives for the authors and publishers), has been granted the oversight to settle disputes over pricing. What, if any, mechanism would be available to libraries (as primary customers of the product), and individual consumers to dispute pricing?

With respect to patron privacy — what assurances, aside from a verbal commitment, does the library community, library patrons and the public interest have that their privacy rights will be protected? The proposed settlement itself is silent on the topic of patron privacy rights, why? Were the three private entities unable to reach agreement, in their closed deliberations, on a privacy policy?

Finally, with regard to intellectual freedom, the proposed settlement allows Google to omit up to 15% of in-copyright, not commercially available books it has scanned from libraries. What criteria will Google use to determine which books are omitted from the product? Will Google identify the books omitted and provide any explanation as to why? How will Google keep from engaging in censorship as it is conceivable and even likely that both domestic and international pressure will be exerted upon them to censor books?

Hopefully, Google will provide answers to these questions. Of course, there are many more than these.