Kansas State Librarian Can Transfer Thousands of Titles from OverDrive to 3M at No Charge
By Michael Kelley Oct 10, 2011The Kansas state librarian is making steady gains in her unprecedented year-long battle to wrest the statewide consortium ebook collection from OverDrive's platform and make it accessible, at no extra charge, on the new platform being offered by 3M.
To sweeten its offering, 3M has been negotiating with Amazon to make the 3M Cloud Library compatible with the Kindle ereader and is taking a position diametrically opposed to OverDrive's regarding the transfer of previously licensed digital content to a different vendor's platform.
At the same time, librarians across the state are worried about what percentage of the present consortial collection will ultimately be accessible via the new platform, which will be called EZ Library. They are also concerned that the new deal will not be in place by the time OverDrive's contract expires on December 5, creating a gap in service since access to the OverDrive collection is contingent on a contract being in place.
The prospect that service could be interrupted and the collection less than whole has prompted some of the larger public libraries in the state to begin negotiating independently with OverDrive and others to strike their own deals --- even as they remain committed to resource sharing via the consortium and support the state librarian, Jo Budler, in her tenacious battle.
The situation also raises fundamental questions about the place of libraries in the digital landscape, particularly when it comes to the building and preservation of local collections.
Kansas librarian hope service will not be interrupted
"I was at a meeting of directors in northeast Kansas recently and they are all concerned about this [potential gap in service]," said Gina Millsap, the director of Topeka & Shawnee County Public Library and a candidate for the 2013-14 presidency of the American Library Association. "We have a great state librarian and we support her, but we can't abdicate our responsibilities to serve our own communities. It was the major topic of discussion, as it must be, because we all know how important this is," she said.
Millsap and Cynthia Harris, the director of the Wichita Public Library, are both negotiating for a separate contract for their libraries, and they both said their communities have a high expectation that econtent will be available.
"We know that the state library is working on plans with other vendors to replace the service but the timelines are not meshing," Harris said. "We are looking at potential gaps in service which is always an issue because of the popularity of the service, especially going into a holiday season."
"We recognize, as one of the larger public libraries in the state, that other libraries look to us to be part of cooperative projects, but I think we have an equal responsibility to members of our local taxing district to represent their interests in those decisions as well," Harris said.
Linda Krupp, the director of the Manhattan Public Library, also said she is "exploring options with several vendors."
Millsap has a three-year contract offer from OverDrive on her desk, but she has not yet signed it because she has reservations about the length of the contract and changes to the contract clause which has played a big part in Budler's argument that her library owns, not leases, the digital content on OverDrive and has the right to move it to a new platform.
3M says it will not oppose transfer of content from its platform
3M supports Budler's reasoning that she has the right to maintain access to the ebooks for which she has already paid OverDrive a licensing fee, provided publishers have given their blessing to any transfer.
"We have had calls from a lot of publishers asking how this is going to work," said Tom Mercer, who leads the 3M Cloud Library project. "What we have said is that if the publisher agrees to work with Kansas then we will add those files to Kansas's instance of the software. It is a zero dollar purchase order."
3M, which is beta testing its platform with numerous libraries around the country including the Kansas State Library, already has all the files in its system because of its relationship with publishers. It is just a matter of making those files accessible to the state library's account. Libraries generally have to pay a fee to lease access to the titles they want to include as part of their beta test of 3M, and 3M manages the digital rights.
"It certainly is a benefit to Kansas to have that content already available," Mercer said.
3M also was critical of OverDrive's rewording of its contract to seemingly preclude such free transfers in the future.
"We really want to tell people that we want to be open and that OverDrive is taking a closed approach to content and people should think about that before they spend a lot of money with OverDrive," Mercer said. "We don't feel the need to hold people in because we have an elegant product that will keep improving over time."
Part of those improvements may soon include Kindle compatibility, which was a recent significant and much awaited improvement to OverDrive's service.
"We have had discussions with Amazon and we are excited," Mercer said. "We don't have anything definitive now, but we see it as a must-have feature and we are confident that we will be able to get Kindle compatibility."
OverDrive did not respond to a request for comment.
State librarian preserves at least half of the collection
Although 3M's willingness to contractually recognize and facilitate transfers is a boost for libraries, the process of obtaining publisher permissions presents an enormous task --- which Budler was, nevertheless, willing to take on.
She has written three times to 169 publishers, most recently on August 10, seeking their permission to have their titles accessible via the 3M platform without having to pay a new fee, and she has received a "yes" from 93 of them, including publishers such as HarperCollins and Random House (see list at end of story). Her campaign has been backed by Jeff Chanay, the deputy attorney general for the civil litigation division.
"He's been great. He looks over the letters. He's been coaching us. He's adamant that we own the content," Budler said of Chanay, who confirmed for LJ that that remains his office's position.
"The state consortium is going to be able to remain intact and all Kansans will enjoy downloading ebooks and audiobooks," Budler said. "We are going to be moving nearly 7000 of our titles so there will be content for our readers from the moment we move to the new platforms," she said.
This represents slightly more than 50 percent of the ebook collection now available with OverDrive and nearly 40 percent of the audio, which will be moving, also at no charge, to Recorded Books. "I wanted a lot more than that, but I'm happy we can move some of our content," Budler said, noting that responses from publishers are still coming in.
Budler said the 3M platform should be in place by November, but to help soften any gap, she has also posted a list on the state library's website of place where patrons can download public domain content (e.g. Project Gutenberg) along with directions on how to do this.
Holds and wish lists will not transfer to 3M and librarians will need to search for the title again and make sure it is available and then replace the hold.
Budler said she fully understands why some libraries may want to strike separate deals to bolster their positions, even as they remain members of the consortium.
"I told librarians they need to do what's right for their customers. Some are looking at OverDrive and that's fine," Budler said. But we couldn't do business with them because they wanted to raise prices 700 percent. I don't like what OverDrive did to us, but it's a business decision. I wish we could have worked something out but there's was no talking to them," she said.
She recently explained her actions in an Open Letter to Kansas Librarians.
"She's definitely charting new territory," said Scarlett Fisher-Herreman, the technical services and collection development supervisor, at Topeka & Shawnee County Public Library. "I haven't heard of anyone else who actually went to the work of asking the publishers, and she's done it on a scale unheard of in the public library world."
Nevertheless, Fisher-Herreman said the situation was worrisome.
"I don't even know specifically what titles we will get. I am not only worried I have woken up in the middle of the night thinking about it," she said. "We really want our customers first and it's been very challenging to us."
The state library's expiring contract with OverDrive allows the 330 public libraries in the state to gain access to the state-run consortial platform (academic and school libraries can also participate). From 2006 through June 2010 (end of the fiscal year), the consortium's members paid OverDrive $568,000 in content licensing fees, with $182,000 coming from the state and the balance from the consortium members. If a member licenses access to a title, it becomes available to all members.
But the collection building has been suspended for most of this year while Budler sought a new vendor after deciding to terminate the OverDrive contract because she was facing a 700 percent increase in the platform fee to $75,000 by 2013 (Budler would not comment on details of her deal as a beta tester for 3M, but said the platform fee was "nowhere near $75,000 --- I can assure you of that.")
Mission to maintain collections
Typically, OverDrive charges a fee to utilize their platform, then the library builds its collection by paying OverDrive a licensing fee for each title it adds. The library maintains access to the collection as long as it has a contract with OverDrive. If the contract lapses, however, so does access to the collection, which was something Budler could not accept considering how much the state's libraries had invested in the content.
She pinned her hopes on clause 11.4 of the OverDrive contract which referred to "content purchased," not licensed, from OverDrive and which said OverDrive would help transfer the content to a new provider if proper permissions from publishers were obtained. (hence, Budler's writing campaign).
The contract on Millsap's desk in Topeka has been reworded to eliminate any references to "purchased" content or transfers. Millsap isn't comfortable with the change, even though the contract includes a $5000 credit to start the collection off.
"If my library spends $300,000 on ebooks over the next few years, how do we justify ending up with nothing if/when the agreement ends?" she said. "That is the key question. Is it a dealbreaker?" she said.
The Topeka-Shawnee library has a materials budget of $1.5 million for FY12, and a minimum of ten percent is dedicated to digital content (which includes about $30,000 for the Freegal music service).
Millsap said the situation in Kansas raises difficult questions about the mission of libraries and their position in the digital landscape.
"The technology allows the publishers and third party providers to control that content in ways they can't with hard copy, but does that make it right? What about our mission to build and maintain collections of stories and literature that serve our communities and customers beyond the moment?" she said.
"I'm willing to pay fair market value for use, whatever that is, but the model in which we're the pass-through for consumables just isn't working for me because it doesn't work for libraries. I'm all for taking advantage of what the technology can do, but what about creating a true marketplace, where we can actually negotiate this stuff?"
At smaller, rural libraries, the negotiating is being left to Budler.
"There may be a gap in service and that is a little bit of a concern for us, but we are a large rural area and we don't have the huge demand so there's not so much pressure," said Judith Cremer, the director of the Pottawatomie Wabaunsee Regional Library. "What the state library does is what we are going to have to deal with," she said.
Here is the list of publishers cooperating with the Kansas state library:
1st World Library
ABC-CLIO
Alligator
ASCD
Ascendant Audio
Audio Bookshelf, LLC
Audio Realms
August House Inc
Baker Publishing Group
Barron's Educational Series, Inc.
Beacon Press
Bearport Publishing Company, Inc.
Books in Motion
Brilliance Audio
Buzzy Multimedia
C&T Publishing, Inc
Canongate Books
Capstone Publishers
Carson-Dellosa Publishing
Chalice Press
Chautauqua Institution
Chicago Review Press
christianaudio
Classical Comics
CoolBeat Audiobooks
eBooksLib
Effective Learning Systems, Inc.
Emereo
ereads.com
Falcon Picture Group, LLC
Fast Lane Learning
Findaway World
Firebringer Press
Full Cast Audio
Galaxy Press, L.L.C.
HarperCollins Publishers Inc.
Hunter Publishing
Island Press
Janson Media
Kinsley Public Library, Kinsley, Kansas and supported by the Kansas Humanities Council
Kogan Page Publishers
Legacy Audio Books, Inc.
Lerner Publishing Group, Inc
Listen & Live Audio, Inc.
Magnatune
Milken Family Foundation
More Than Sound
Multi-Media Publications Inc.
Musics Sales Corp.
M-Y Books
New World Library
New World Music
NOLO
Nomad Press
NuVision Publications
O Books
One Voice Recordings
Orca Book Publishers
Osho International, New York
Out Loud Audiobooks
Oxford University Press
Para Publishing
Patria Press, Inc
Quayside Publishing Group
Random House (currently ebooks only)
Razor & Tie Direct LLC
Reagent Press LLC
Rooftop Media, Inc.
RosettaBooks
Rowmark
Seven Stories Press
Sheldon Press
Shell Education
Sounds True
Spinifex Press
Springer
Starz Media
Sterling Publishing Co., Inc.
Tai Seng Entertainment
The Colonial Radio Theater On The Air
The Floating Press
The New Press
The University of California Press
Tyndale House Publishers, Inc.
Unbridled Books
University of Chicago Press
Vanguard Cinema
White Rose Publishing
Wildside Press LLC
Wizards of the Coast Publishing
World Wisdom, Inc
Writer's AudioShop
Yale University Press
