Penguin Week: When Licenses Attack!

November 23, 2011

[UPDATE: OverDrive announced this morning that Penguin has returned to the Kindle ebook lending program. Mostly.] Sharks are usually considered the scariest beasts in the sea, but this week penguins are giving their toothy water friends a run for their money. The E-Content blog covered the changes to Penguin’s ebook policies yesterday, but new information raises some critical questions about how and why this happened.

ALA President-Elect Maureen Sullivan released a timely and hard-hitting statement’s advocacy for readers stuck in this economic spat has won additional attention for the issue from tech-blog Engadget and the ever-popular Boing Boing. 

Cory Doctorows post on Boing Boing focused on the role of Amazon in this. “The fact that Amazon is capable of doing (or allowing) this—the fact that books can be revoked after theyre sold—is a vivid demonstration of the inevitably disastrous consequences of building censorship tools into devices.” This brought a quick response from Amazons Andrew Herdener, who wrote in to boing boing to say that the changes were as much a surprise to Amazon as they were to libraries that lost access to their ebooks. “This has nothing to do with terms between Amazon and Penguin. This decision was not ours, and we did not make any changes in our service. . . OverDrive chose to stop the service that lends the Penguin books to Kindle owners.”

I cannot help but wonder, however, just how accurate that statement is. Amazon has been very active thus far in OverDrive’s Get For Kindle program. In fact, their extreme level of involvement has raised red flags for privacy. If Amazon had simply provided OverDrive with Kindle formatted files to offer to libraries, then Amazon might be able to claim innocence. However, the program as it exists now makes full use of Amazon’s infrastructure, technology, and personal-information-gathering account system. Maybe Amazon didn’t know about these changes ahead of time, but I will still hold them at least partially accountable.

Real accountability, however, must come from OverDrive. While I find Penguin’s actions distasteful and naive (ebooks are coming, DRM is going. See also: Music Industry), OverDrive’s role in this could have more serious implications. Did OverDrive fail to secure a contract with Penguin that guaranteed access to Kindle lending rights before advertising that new benefit to libraries? Or did they have the rights and then give them away under pressure from Penguin? We may never know; OverDrive is a private company with no shareholders to ask tough questions about bad license terms.

But we can ask those questions. We can ask OverDrive to publish their contract with Penguin to let library customers see where the fault lies. Did Penguin back out of a deal when it pulled Kindle access? Or did OverDrive over-hype a deal that it never secured?