What Manufacturers and Publishers Need To Do To Facilitate The Move to Electronic Delivery of Legal Books — Competing with Library Lending

(This is part of a series; the earlier posts are here.)

So, as I discussed earlier, e-textbooks have to compete with substantially discounted used textbooks. But scholarly books that are aimed largely at law professors and law students also have to compete with something even cheaper: library borrowing.

Law professors can generally get all the books they want for free, with minimal hassle and modest delay, just by asking their librarians. Law students can often do much the same, though with a bit more work. As a result, for instance, I never buy law-related e-books for my Kindle, though I do download free public domain items (such as Blackstone’s Commentaries), as well as draft articles and the like. Instead, I just borrow the paper books from the library.

Now of course borrowing these books isn’t really free for my employer. The library has to spend money on buying the books, as well as on maintenance, shelving and reshelving, and processing faculty delivery requests. Space that’s used for book stacks is also space that can’t be used for faculty and staff offices, classrooms, and the like. So libraries, their users, and publishers can all profit from making it possible to lend e-books on much the same terms as libraries can now lend books.

And fortunately, there’s ample precedent for this in the site licenses that many libraries already get for various online collections: HeinOnline’s collections of law journal articles, public domain legal classics, government documents, and some more recent treatises; Chadwyck’s Early English Books Online, Gale’s Eighteenth Century Collections Online, Making of Modern Law, and other databases; the Oxford English Dictionary; and the like. University libraries routinely have such subscriptions for all their users, but some public libraries do as well. Libraries and publishers would likewise be able to negotiate for library licenses to lend all new e-books coming from the publisher.

Libraries pay flat rates for each database, and the rates are often quite substantial. This will likely be the same as to, say, a license to lend all new Harvard University Press books. But the costs of buying books can be high, too, especially when coupled with the other costs I mentioned above. Eliminating those other costs means that there will generally be some price point at which authorizing the library-wide license will both increase profits for publishers and decrease costs for libraries.

Determining that price point might not be easy. Different libraries have different costs. Publishers may be reluctant to negotiate in detail with each library. And there’s always difficulty with any change to the way people have long done business. But on balance, and especially given the precedent of the other online databases, libraries and publishers should be able to create an e-book lending model that would replace the old First-Sale-Doctrine-driven paper book lending model.