From Library Journal:
The 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.
More info in the article – including the contract language in question.
The clause the librarian is basing ownership on doesn’t grant ownership and I’m surprised that the state’s attorney general agrees with the librarian. OverDrive cannot grant something it doesn’t have itself. If the contracts between OD and the publishers are license agreements, then all the libraries got were licenses regardless of how they want to interpret “purchased.” The whole argument revolves around the interpretation of the word “purchased.” However, one can purchase a license just as one can purchase ownership. Well, it will be interesting to see what the final result is.
I feel for the Kansas library system, but they have no chance of winning this. The only person who owns those digital books is the person who owns the copyright– not the publisher, Overdrive, or the library system. American copyright law is very clear on this point.
If they argue that they, not Overdrive, own the license, they may stand a chance of winning.
When I was looking to go with Overdrive when I worked for a library consortium in Massachusetts I was told that we would own the content by the salesperson. Overdrive (using his term) was just a vending machine. We could purchase whatever we wanted. I asked him specifically if we decide to go with a different vendor or host the material ourselves, would we still own it? And he said yes. Kansas may have been sold the same bill of goods. And in an older contract it may state that. When I made the decision to go with Overdrive it was with the assurance that we owned the content and could do with it what we wanted. The library directors in the consortium never would have agreed otherwise. I am very curious to see how this plays out.
Erin