Whoever you're with, know what you have.
Librarians are knocking on wood when it comes to their electronic resources. The Penguin saga is just one more example that we need a course correction in how we're approaching this issue. The problem isn't Penguin. They are a for-profit company and are acting in their own best interest. The problem isn't Overdrive. They are also a for-profit company and also acting in their own best interest. The problem is we have jumped into this marketplace without knowledge and we keep expecting other companies to take care of us. We expect Overdrive (and Penguin, and Simon & Schuster, and Macmillan, and...) to be on our side, to make sure we are protected, when that is our job. It is our job to spend the money entrusted to us by our taxpayers. It is our job to make sure libraries and librarians are not cut out of the emerging digital marketplace. It is our job to make sure that the protections we have (First Sale Doctrine, Fair Use, etc) go forward and don't disappear.
Look, I get it. I'm a collection development librarian. Of course I want to offer as much to my community as we can physically order and pay for in a budget year. I'm a professional shopper, for crying out loud, and I love to buy stuff that patrons enjoy! But, as an information professional, it is also my job to make sure that libraries are at the table in this discussion. (If you're not at the table, you're on the menu. Remember?) We haven't been sidelined, we've put ourselves on the sidelines by waiting and expecting others to have our best interest at heart. Everything about our current electronic resources climate requires action by library professionals. Whether that is educating patrons on devices and content, on what we can and can't buy, on what we will and will not buy (and the reasons for it), or educating the politicians who debate and pass our budgets on these same issues.
It requires us to stop knocking on wood when it comes to the contracts we sign for digital content. This isn't just for Overdrive or 3M or any other ebook platform, but also for electronic database agreements. Do you know what is in the contract that you signed? Many of us, myself included, may have passed that up the chain of command, but more than one person in an organization should know what the contract says. If you know what it says, do you know what it means? What are you allowed to do? What are you responsible for? Are you on the hook for patrons' bad behavior with your electronic content? How is your pricing structured? If you're in a consortium, what additional rules apply because of it? If you don't like a term or two (or fifteen or twenty) in the contract you're given, can you negotiate? Is there some sort of non-disclosure agreement embedded in your contract? I was surprised the first time I heard that some vendors include this. They don't want you comparing price and/or services with other libraries. But if you have purchased a service with public funds, you should NOT be signing a non disclosure agreement! The terms of your contract should be open because that isn't YOUR money you're spending. It belongs to the public.
If there are lawyers in your area, and you need help deciphering a vendor contract, ask for help. Yes, it will cost you something. It is worth it. A good lawyer will not only untangle the boilerplate for you, they will EXPLAIN it in a way that you can understand. If you're in an area that has a library school, you may have a library legal expert near at hand. This is a hot academic research issue now, so maybe helping you would help them as well. Even if that isn't the case, they will almost certainly understand your mission, what you're trying to accomplish, and what pitfalls may lie in the contract you're about to sign. There are some great resources available without personally contacting a lawyer. The Library Law Blog is a great place to check for the latest issues and discussion on these topics. The Liblicense-L listserv, though it caters mostly to academic libraries, is also fantastic. Here are the archives from 1997-November 16, 2011; the current archives (Nov 17th, 2011 -) can be found here. Librarians discuss all things license related, including vendor terms and how they successfully negotiated them.
Yes, sometimes vendors offer a "take it or leave it" contract or terms, and that's when we have to decide if what they're offering is worth what we have to pay to get it. If it is worth it, sign the contract. Once the contract is signed, make sure that the vendor lives up to everything they've agreed to on paper. If it isn't worth it, walk away. If enough libraries walk away, the terms will change. Vendors need your business (and your money) just as much, if not more, as you need their product. As more vendors enter the marketplace, those contract terms will ease because they want your business. (Isn't it amazing how many "library edition" audiobook companies lowered their prices once Midwest Tapes entered the marketplace?)
It was just very disheartening to read so many tweets and posts that didn't realize (still) that we license material, we don't own it. The publisher (or vendor) can pull it, etc. etc. etc. This isn't just true for libraries, by the way, but also for consumers. Remember when Amazon deleted Orwell books (ha!) from Kindles? All of us who are spending the public's money owe it to them, and to our profession, to understand what we're paying for.
Whoever we're with, understand what we have.
Stop knocking on wood.