Over a decade ago, someone told me that print legal texts only had about 5 more years to go. Even by that time, the e-book had a place in the information world. It continues to escape law library funders and governance boards why we haven’t converted entirely to this format. One gets the sense sometimes that they view the failure to do so reflects backwards thinking on the part of law librarians. At the risk of preaching to the choir, it’s not that simple.

This post was suggested, as so many are, by an interaction with another law librarian. It underscores the inter-connected relationship law libraries in a jurisdiction have. We make collection decisions to meet our own mandates but as we shift to digital formats that we no longer own, we are also diminishing access to information in many cases.

This is not the first time I’ve touched on e-books. I’ve got lots of thoughts about format and creation, impact on collection and perception, and on delivery. One thing to remind our governance boards is that not all legal information can be delivered as an e-book:

  • not all legal texts are available in a digital format, discrete or otherwise: there is no e-book;
  • not all legal texts are available in a discrete format that you have the technology platform and expertise to deliver them with (one-to-one app delivery, for example)
  • from a collection development perspective, not all e-books are as good as or better than their print format equivalent for usability, circulation, whatever service purpose you currently have.

What is an E-book? Simple, Right?

These discussions can be hard for any number of reasons. One is that there is not a universal agreement on what an e-book (or ebook) is. I will try not to retread this post from last year too much. When we talk about e-books in the broad sense, we’re talking about discrete digital objects. They are often distributed in a format that was designed for e-book reading applications, formats like epub or azw.

“Every e-book its e-book reader format.”

This individual quality is what our funders and governance board members experience when they borrow a book from a public library. Or buy (or perhaps only license) an e-book from an online marketplace. When I access an Overdrive or Cloudlibrary repository, I am interacting with discrete objects.

But that is not how law e-books work. There is not a universality of what a legal e-book is. In many cases, varying by legal publisher, the term “e-book” is applied to any digital object that was formerly a print text. If you purchase or license digital objects from Fastcase’s Full Court Press or CALI’s eLangdell or LexisNexis, you may be able to receive a discrete digital object.

It doesn’t help that legal publishers (this screenshot is from LexisNexis Canada’s online store) use both “PDF” and “eBook” (sic) to describe their digital objects.

It is not uncommon in the legal publishing world to take two other approaches. The first is to use discrete objects but secure them behind a proprietary app. The second is to merge digital text objects into databases. As soon as the publisher takes one of these paths, it can create insurmountable delivery problems for law libraries outside a law firm context.

License Over Content

If we owned the objects, we might not need to have these discussions with our funders. But, despite funders and governance boards being overwhelmingly being law school-educated, there seems a difficulty in grasping the nature of the law librarian’s role and copyright. When we purchase a collection object, our ownership gives us some options but the item is still licensed. That is why, when a lawyer calls up and asks us to photocopy large parts of a book, we decline.

It is complicated when purveyors of digital objects tell you they are “selling” you something when in fact they are “licensing” or “renting” it to you. Cases like these involving Amazon and Apple are interesting for that reason. It would be good for people to have clarity over when they are renting and when they are acquiring ownership in digital objects.

So, fundamentally, we can only give access that conforms with our license. And our ability to give access is inextricably tied to the digital format that the object takes. The more discrete, the more potential possibilities we have for access.

Let me pause to discuss a trend that will further complicate this issue. In the past, we have bought a text in print format for $X and received a digital version of that text for $0. Increasingly, as legal publishers are spinning up digital objects, they are trying to minimize their ongoing losses related to print. We are now buying that same text, but the print version is $0 while the digital version is $X. We get no reprieve on costs and are likely to get fewer access options.

RELX (sounds like “relics” or “relax” neither of which seems like good marketing) earnings call presentation from Q1 2021 discussing legal print format declines. (Source: Seeking Alpha) Both LexisNexis and Thomson Reuters appear to have experienced steep Q2 2020 losses that have entirely recovered by 2021. I always wonder how much of their annual growth is buoyed by the expectation that law libraries will always pay.

For now, print allows us to provide access in a multitude of ways. Even during a pandemic, it allows us to digitize parts of a text – within the confines of fair use (US) and fair dealing (UK and some of its former colonies like Canada) – and deliver it to researchers. Some law libraries are also able to disseminate the physical object by circulating it to other law libraries or individuals.

Not so digital objects.

Digital Hurdles

One truism of digital object access is this: the further the researcher is from a relationship with your organization, the harder access will be. A law firm librarian or a court librarian can license content for lawyers or judges and the license can blanket the organization. There is no concern about clients or litigants or others needing to access that licensed content.

An academic law library is probably the next step away. If the law library licenses content on its own, it may limit access to law students and faculty. Other students and faculty at the university might be excluded despite their proximity. There are control and budgeting issues but in that sort of environment, you could perceive some potential benefits from licensing across a campus. Cost may be the biggest challenge.

Our inter-connectedness raises its head here. If your academic law library relies on my membership law library collection and I go digital, you may now have a huge gap in your collection. Similarly, a public law school may license content only for its faculty and staff and exclude legal professionals and the public, people who would otherwise have a right to access the law library’s resources.

As you get to membership law libraries, which have a quasi-restricted researcher audience, it gets more complicated. In reality, membership law libraries usually have a public access component. In this way, they are like their public law library counterparts. The only connection these law libraries have to their researchers may be dues or a statutory obligation created by receiving public funds (filing fees, traffic fines, etc.).

We can deliver discrete digital objects … discretely. In theory, we can create a method so that we can email an object or allow access to a repository of objects. The latter is the Overdrive (and LexisNexis Overdrive) model. The singular benefit of Overdrive is that it handles the digital rights management and delivery. Otherwise, it’s just another proprietary app obscuring access to a digital object in a standardized e-book format.

An alternative is to load the e-books not into a repository but onto a device and provide access to the device instead. If we can loan laptops, we could load them with e-books. The same goes for Android or iOS tablets. The difficulty with those is multi-fold. Do we have the technical ability to do it? Can we afford the devices and maintaining them? Does this solution secure the content so that it can’t just be copied off the device? Once again, we have to know what our license requires us to do to comply and determine whether we can.

Legal publishers have attempted to provide a middle road here. They have created proprietary e-book apps so that we can deliver e-books discretely. But these are designed for law firms, with an individual tied to the app. That becomes difficult when you try to scale it. The largest law firms may only have a few thousand lawyers. Our law library serves over 60,000 professionals and public law libraries can be serving millions of people.

I fully expect this delivery option to disappear. The legal publishers are best at licensing large so-called “comprehensive” resources. It is a preferred approach because it eliminates the discrete that goes into discretionary. We pay for content we don’t need because it is bundled with content we do. And, as they spin up digital objects, they are likely to be increasingly located in these online resources.

As we have seen during the pandemic, there is demand for remote access to legal information. The remote access issue poses the fewest challenges to the law firm or court library. The challenges increase as you get to academic law libraries and are practically insurmountable for public and membership law libraries.

Not Insurmountable But …

The challenges are not insurmountable. I think they probably require at least two of these three things:

  • financial resources to select them
  • technical resources to enable known access to them (to meet licensing user obligations or circulation policies)
  • licensing changes to enable ownership or long-term retention without cost

The initial hurdle tends to be the cost. A governance board may be unwilling to pay the costs related to the access that is desired. When law libraries are forced to cut costs, it can widen that expectation gap. One approach we may want to institutionalize – and that we’ve done with print – is to purchase only those texts that meet our collection needs: we can own them, we can distribute them, they’re discrete objects. This may mean choosing collection objects that are not “preferred” or “leading”. There may be additional collection assessment as to what’s good enough to meet both your mandate and your budget.

We can use identity management tools like OCLC’s EZProxy to deal with access accounts (and knowing who has access to what). Ironically, the law libraries most likely to have public integrated library systems (catalogs), and have the biggest access issues, may have circulation modules they can leverage for remote access.

One area we may not have spent enough focus on is the e-book licenses themselves. We need to revert from money for access to money for ownership. Some legal publishers are already selling discrete digital objects. Our preference should be to own these objects just as we have with the print objects in the past. This may be tricky. Take this Thomson Reuters’ title, which you can acquire access to for a one-time cost:

Thomson Reuters’ has the Proview e-book software for its discrete objects (those not embedded in Westlaw). It comes with a license for the software, not for the books. So the “purchase” of an e-book (I’m not sure what that means in this case) may be limited by the long-term access to the software. But the software specifically allows for negotiations:

eBook Content within Subscriber’s Library may not be distributed, transferred, sold, resold, rented, leased, lent, published, transmitted, retransmitted, disseminated, broadcasted, circulated, or sublicensed or otherwise assigned without written authorization from TRP

1.3 Access to eBook Content in Subscriber Library and Other TRP Products and Services, [Proview] License agreement – all other countries, thomson reuters

So perhaps we need to have that conversation and see where it goes. And, if we’re successful, share that knowledge with our colleagues. And don’t sign anything that includes a confidentiality or non-disclosure clause.

Can you negotiate an escrow or archival copy (in case there is a Proview or device upgrade that strands your digital objects)? Can you negotiate different terms that may relate to circulation (and rent? lease? lent? transmitted?)? I don’t know. It would seem possible depending on the risk of loss of market to the legal publisher.

I was talking to someone recently and posed this question: you have three audiences and $1. Who gets it?

In the past, we might have tried to split the $1 three ways. Or we might have used all or most of it to buy a resource that could serve all three audiences. I think, increasingly, we’ll need to focus on an audience. If there is spillover of benefits – a lawyer who can use content developed for self-represented parties – then that’s great.

Like so many other legal information or content hopes that are posed as predictions (“print law reporters will cease in 5 years”), legal e-books have not landed where we might have expected. The publishers themselves have been unable to deliver a coherent product. Operational impacts like cost and technology have impeded our ability to get that subset of products out to our researchers. Whatever solutions we have landed on individually, I think there are ways to improve if e-books are a format you want to deliver.