Fair Use meant that we could quote it in reviews, use parts of it in other works (academic papers), and so on. We couldn't claim that we wrote it, or make whole copies.
Patron confidentiality meant that what you read was your own business. The library was only interested in what you currently had checked out, so we could remind you to bring it back, or charge you to replace it.
Upon these three pillars rested the public library. They worked. Library use has grown steadily over the years, and we have been a significant force for literacy. And as the data show, we contribute to the success of publishers and writers both.
When ebooks came along, suddenly all of these principles were up for grabs. Abruptly, instead of owning books, we were buying licenses just to access them. All kinds of new restrictions were experimented with, based on database licensing models: no discounts, no ILL, no reselling, no copying or printing parts of it, and now, a keen interest in patron statistics, down to the level of how many pages a patron may have gotten into a book before she lost interest.
I get the idea of restricting use to one person at a time; authors deserve to get paid, although the physical restriction no longer applies. That's an acceptable limit to me.
But here's my modest proposal. Let's take First Sale, Fair Use, and patron confidentiality as our baseline. Rather than meekly accepting each new encroachment on the public good, let's counter it with a request for offsetting rights that bring us back to the base.
For instance, there are now three constraints placed on library purchasing by Big Six publishers: repurchase (wherein HarperCollins requires us to "buy" again a book that has checked out 26 times; massive price increase (Random House's tripling of the cost of a new title); and the delayed release or "embargo" of Penguin. (Incidentally, I understand that publishers prefer the term "windowing" -- which is an excellent reason to continue to use the term "embargo." A fundamental rule of politics -- or let's call it the marketplace of ideas -- is not to cede the defining frame to your adversary, and in this case, the relationship does border on adversarial.)
Each of these deserves a response. So for instance:
* repurchase requirement. As I've written elsewhere, this redefines a purchase as a rental. And if that's the case, publishers shouldn't be able to require libraries to pick up both sides of the risk. We buy a lot of books that check out only a few times, or not at all. We assume that risk. So if we're now paying 70 cents per checkout, then it should apply to everything, not just what's popular. Alternatively, if we have to buy again things we've already bought, then we should have the freedom to sell the duds, at discount, to the community that paid for them in the first place. It's failed inventory at the library, although it might find another reader in another venue.
* tripling of the price. If the price of an item goes up by three times and adds no other value, then we should get a tripling of use. If I spend three times the retail cost of an item, then why not offer it to three patrons at a time?
* embargo. The bottom line is this: getting a book six months after street date makes it less valuable. So if there's a six month embargo, it should come with a 60% discount. Or, to get really creative, if we enable our patrons to buy things we cannot (through a "click to buy" option in our catalogs), every two consumer sales from the library should give us at least one copy of embargoed titles. This makes us publishing partners, not marginalized second-tier buyers.
* access to patron use data. First, let's just make it clear that we're talking about aggregate data only. Giving patrons a "click to buy" option is a convenience to them. But handing over individual reading histories to commercial entities is a betrayal of the trusted relationship between reader and library. On the other hand, the aggregate data could be genuinely useful to all parties. My point, though, is this: if publishers are now asking us to gather and provide new sources of information, that's work for us, a new cost. What do we get in exchange, other than the right to buy what should already be available in the marketplace? How about advance copies in exchange for patron reviews?
I have the distinct sense that the Big Six are trying, in rotation, a variety of new restrictions and demands to see which makes libraries squawk the least, and so will become the new normal. But every one of these restrictions not only erodes the purchasing power of libraries, but also restricts the flow of new stories and ideas to our communities.
I think we should let the Big Six know that we know that, and redouble our efforts to work with publishers who are still eager to connect their books with eager readers, instead of creating new barriers and costs.