It’s been a few months since publishers last lost their composure over library ebooks, so I suppose it was just about time for them to start complaining again. Wired reports that publishers are starting to worry over the increasing popularity of library ebooks since the coronavirus outbreak in March. (Found via Slashdot.)

After many libraries had to close their physical branches for a time, Overdrive reports library ebook checkouts are up by 52% over the same period last year. Ebook and media checkout service Hoopla Digital says that 439 new libraries in the US and Canada have joined the service since March, boosting their membership by 20%.

And of course this worries publishers, who fear that these easy book checkouts are cutting into their book sales. Meanwhile, librarians are still unhappy that they’re having to pay several times cover price for ebooks that expire and must be bought again after a low number of checkouts.

It seems that even the government is starting to take an interest. Last year, the House Antitrust Subcommittee launched an investigation into competition in the digital marketplace, and in February subcommittee chair Representative David Cicilline (D–Rhode Island) met with library advocates at a community roundtable in East Providence.

“As the Chairman of the House Antitrust Subcommittee leading a bipartisan investigation into the state of competition in the digital marketplace, I’m particularly interested in potentially anticompetitive practices harming libraries and their users, especially in Rhode Island,” Cicilline said. “I’m grateful that the Rhode Island Library Association put together today’s roundtable so we could discuss these issues in detail. I look forward to continuing our work together as the investigation wraps up and legislative fixes are introduced later this year.”

Of course, that was before COVID-19 hit. The subcommittee has continued its work in other areas of the digital marketplace, such as when it interviewed big tech company CEOs in July, but I haven’t heard about any legislation aimed at library ebooks yet.

But a link from the Wired article did lead me to a very interesting eLending position paper (PDF) by Carmi Parker, ILS Administrator from Whatcom County Library System in Bellingham, WA, proposing a more fair model for library ebooks. (Parker is also on the Executive Advisory Committee of the Washington Anytime Library, a consortium of 45 public libraries that share an Overdrive catalog.)

The paper suggests that the most fair model would be to charge cover price for a library ebook that could be checked out for 30 to 35 times—as many times as the average hardcover book could be checked out before wearing out and needing replacement. Perpetual licenses, which would permit unlimited checkouts, could be purchased at a higher rate, modified by how popular the title is. For popular titles, the paper suggests a perpetual license price of four times the cover, or $60 in the case of a $15 ebook.

The paper notes that ebooks started out at cover price for unlimited checkouts, then changed to a higher price for unlimited checkouts, then a few years later changed to a higher price for limited checkouts. The paper contends that this is unfair to libraries, whose budgets are limited by law. It argues that pricing ebooks more fairly would have benefits to publishers in terms of increasing readership and allowing libraries to experiment by purchasing more unfamiliar titles.

It seems to me that this paper makes some compelling arguments, but I doubt they would reach the publishers. Ever since Amazon came along, publishers have always been a little paranoid about ebooks. Ebooks are so easy to distribute and obtain and read that they seem to endanger sales of the harder-to-deal-with paper books that the entire publishing industry was originally built around, and is still heavily invested in. Selling fewer paper books endangers paper bookstores like Barnes & Noble, potentially leading to the loss of retail shelf space to expose more readers to more new books, and makes it harder to meet the fixed upkeep costs of all the printing and shipping and storage equipment and facilities for those paper books.

The publishing industry is so paranoid about ebook sales harming print sales that it won’t allow stores to sell ebooks at the same discounts as they can offer on paper books, and publishers actually rejoice that they’ve reached a “stable equilibrium” in the market when they sell fewer ebooks. Why would they want to make it easier for libraries to lend ebooks for free?

Small wonder that some library advocates were happy about the Internet Archive’s questionably legal Open Library. It does an end run around the entire issue of stingy publisher licensing, by attempting to leverage generally accepted principles of space shifting and fair use on digital texts taken from paper books. It’s just that this method seems more than a little legally iffy.

If the courts did find in favor of the Internet Archive in the ongoing publisher lawsuit, it would mean a major shakeup for the way publishers deal with libraries. Perhaps publishers would have to lower their license prices if they didn’t want libraries going the Secured Digital Lending route. Personally, I think a victory for the Open Library is pretty unlikely, but you never know.

But perhaps the interest of House antitrust digital subcommittee members means that library lending of ebooks will receive more legal attention sooner or later. And if the upcoming election leads to fewer big-business-friendly Republicans and more socially minded Democrats in Congress, it can only bode well for the success of such legislation in the year to come. We can only hope.