Caleb Crain

Notes on the NYPL’s press conference for the Central Library Plan

On 19 December 2012, at 11am, the New York Public Library presented in outline the architectural plans for its Central Library Plan (CLP), a proposal to close the Mid-Manhattan Library and the Science, Industry, and Business Library and replace the bookshelves that house the 42nd Street building’s research collection with a new circulating library. The library’s president Anthony Marx and its chosen architect Norman Foster spoke. In the weeks since this press conference, architecture critics have begun to weigh in—some positive, some negative. I took notes, and though I’ve already written up my first impression, Marx and Foster released a number of details that don’t seem to have made it into press accounts, and I thought I would share my notes here. (When I can’t resist editorializing, I’ll set off my comments with parentheses and italics, like this.)

“Our aim,” said Marx, in his remarks at the press conference, “is to provide to New Yorkers and to all comers the greatest library facility in the world.” The CLP, he said, aspires to “bring back to this building the two halves of this great library”—its circulating and its research missions. He described the new space, which is to be inserted in the space under the Rose reading room, where the bookshelves of the research library now stand, as “a brand-new state-of-the-art Mid-Manhattan Library and Science, Industry and Business Library,” adding that because the future of all libraries, including the New York Public, remains unclear, the new space will be flexible.

Marx insisted that the 42nd Street building would continue to be a “great space for exhibitions.” He said that the building’s research collection was “currently housed in stacks with almost no climate control or fire safety” and that under the new dispensation, the books would be much better cared for—in fact, five times better cared for. (Though he didn’t name it, Marx seems here to have been referring to the 42nd Street building’s rating on the Time-Weighted Preservation Index, a measurement scale devised by the Image Permanence Institute. As I explained in an earlier blog post, the 42nd Street stacks are currently rated 44.5, which means that a book held there suffers as much damage in 44.5 years as a book stored at 68 degrees Fahrenheit and 45 percent relative humidity would suffer in 50 years. Under the CLP, by comparison, books would be stored in conditions where it would take 163 to 244 years for them to suffer an equivalent amount of damage.) The books will get what they need, Marx said, and the people, what they need. Marx claimed that the administration expects the CLP to make available to the library an additional $15 million a year. (There’s a touch of spin here: The library’s chief operations officer has estimated that the savings from consolidating three buildings into one would amount to only $7 million a year. The difference between $7 million and $15 million is to come from interest that would accrue on new funds raised for the CLP.) Marx promised that the renovated building would stay open until 11pm most nights, “revitalizing the evening experience in this neighborhood.”

Marx acknowledged that the CLP had come in for criticism, and he asserted that “we heard concerns about the plans,… and we adjusted and improved them.” He said that no public spaces in the building were going to change. In fact, he said, spaces not previously open to the public were going to be made newly accessible. In closing, he remarked that in the days just after Hurricane Sandy, visits to the “aesthetically challenged” Mid-Manhattan Library had doubled, and as proof of the library administration’s commitment to serving the public, he pointed out that despite recent, unexpected budget cuts, the library hasn’t closed branches or cut hours.

The architect Norman Foster then presented a slideshow, which surveyed the changes to the 42nd Street building over time and his proposed alterations to the structure. Foster began by noting that the Rose reading room is 51 feet high and that a visitor has to climb 50 feet through the 42nd Street building in order to reach it. Returning to this symmetry, somewhat later in his remarks, Foster observed that the volume that contains the bookshelves under the Rose reading room is roughly the same size as the volume of the Rose reading room itself. Foster pointed out that there had been a circulating library inside the 42nd Street building once before, in the space now known as the Bartos Forum, and that there had previously been a children’s library in rooms on the ground floor currently used for administrative offices. At the moment, Foster said, 30 percent of the building is open to the public; the CLP would make 66 percent of the building publicly accessible. (It seems worth pointing out that the proportion of the 42nd Street building open to the public may not be the most pertinent statistic. The CLP calls for the closing of two other facilities: the Mid-Manhattan Library and the Science, Industry, and Business Library. I suspect that the total amount of floorspace open to the public will remain little changed. Also, it would be possible to open new writer’s spaces on the second floor of the 42nd Street building and a new children’s library on the ground floor without removing the building’s bookshelves.)

Foster noted that in the 1980s, a space for an underground parking lot had been excavated beneath Bryant Park, next-door to the library, and after the city intervened, one of two levels in this space was devoted to book storage instead of parking. The second level was left empty for years, but thanks to a gift from Abby and Howard Milstein announced in September, soon this second level, too, will be able to hold books. (This is a significant alteration to the CLP, and a major concession to critics like me who were concerned that the CLP would drastically reduce on-site book storage. I, for one, appreciate it greatly.) Thanks to the Milsteins’ gift, the capacity of the Bryant Park Stack Extension will grow from 1.5 million to 3 million volumes. The above-ground stacks in the 42nd Street building, meanwhile, hold 3 million books. In an animated diagram, Foster showed the books that used to be stored in the 42nd Street building flowing into the new facility under Bryant Park. (Foster was indulging in a little sleight of hand here. The 3 million books once stored in the 42nd Street stacks will indeed fit in the new Bryant Park storage facility—but only if the 1.5 million books that were formerly stored under Bryant Park are sent away to off-site storage in New Jersey. This is an improvement over the original plan—which was to send 3 million books to New Jersey and keep only 1.5 million under Bryant Park—and as I said, I appreciate the improvement greatly, but it remains true that the CLP will entail a loss of on-site storage.)

Foster then showed images, including a video “fly-through,” of the construction he proposes for the space under the Rose reading room currently occupied by bookshelves. In Foster’s fly-through, visible here, a viewer enters the building from Fifth Avenue, crosses the vestibule known as Astor Hall, walks through the exhibition space known as Gottesman Hall, and emerges on the third of five floors (or the second of four, depending on whether you count the lowest level) that Foster would like to insert into the space under the Rose reading room. These four (or five) levels looked to me a bit like loggias in an opera house. They’re hollowed out in the center, as if around an orchestra pit. The proscenium that they face is the western façade of the library, which looks out onto Bryant Park.

Foster acknowledged that the Rose reading room is currently supported structurally by the cast-iron “stacks,” or bookshelves, under it. He said that the engineers who would handle the removal of the stacks are those responsible for the recent creation of new spaces under Carnegie Hall and under City Hall, and that he was confident that they were up to the challenge. (Marx later identified the firm as Robert Silman Associates, and indeed they seem to have an excellent reputation.) Foster said that the delivery desk in the Rose reading room, the central point for receiving and distributing books, would remain unchanged. He said that it was still “early days” in terms of design choices, but that he expected the new space would be furnished in wood, bronze, and stone, materials “which age gracefully” and are used elsewhere in the building. He said that he hoped to recycle some of the existing book stacks as shelving in the new space. He asserted that the new space would be 65 feet high, and that as he planned for the ceiling, he was struck by the frosted-glass skylights elsewhere in the 42nd Street building—a hint that he was considering installing an artificially lit frosted-glass skylight.

During the question-and-answer period, Scott Sherman of The Nation asked Foster if he had any misgivings about the CLP in light of Ada Louise Huxtable’s recent strong critique in the Wall Street Journal. “No,” Foster replied. “The history of the building is one of change over time. The world today is not what it was in 1911,” when the 42nd Street structure was built. “I respect your question,” Foster continued; “I disagree with you.”

Someone else asked about the structural hazard that the demolition of the stacks posed to the Rose reading room, and Foster replied by shifting the question to a different danger: “The Rose reading room is currently at risk,” he said. “It’s the only public space in New York that sits on an un-fire-protected space…. If part of the story [of the renovation] is protecting the books, then another part is that we’re also protecting the Rose reading room. I cannot speak for the engineers, but they’re some of the best in the world.” In response to a second question about the logistics of renovating without endangering the Rose, Foster explained that in an initial phase, the engineers would create structural elements between the stacks that would hold up the Rose. Then, once this new supporting structure was in place, the engineers would remove the stacks. Foster said that he expected the new facility to open in 2018, and Marx promised that the 42nd Street building would stay open during construction.

I raised my hand and asked how books would reach the Rose reading room from the Bryant Park storage facility, since the plans suggested that the elevator that formerly raised books to the Rose delivery desk would soon be no more. I gave an account of the exchange in an earlier post, and to save time, I’ll repeat it here:

There’s currently a conveyor belt that brings books from the Bryant Park Stack Extension into the library building, and in reply to my question, Marx said that a second conveyor belt would be added to it, and a new elevator built somewhere on the south end of the building. The architectural historian Charles Warren followed up my question with a few others: Would the new elevator be put where the Art and Architecture reading room is now located? No, it was to be to one side, probably in the southeast corner of the Rose room. How would books get from the southeast corner of the Rose to the delivery desk? There might be room to build yet another conveyor belt in the crawl space between the floor of the Rose Reading Room and the drop ceiling of the new circulating library. Was this crawl space large enough for a person to walk in it? No. Then how would the conveyor be repaired if it broke?

Marx and Foster assured Warren that they would be able to come up with an answer.

Another questioner asked about the project’s funding, and Marx answered that the CLP was “self-funded.” He repeated the claim that the CLP will improve the library’s bottom line by $15 million a year, but he also said that financial gain was “not the driver of this project.” (The finances behind the CLP seem to be growing more obscure. Until this press conference, the library had consistently said that it estimated the cost of the renovation to be $300 million and that it had been promised $150 million from New York City and expected to raise about $200 million more by selling the properties that currently house the Mid-Manhattan Library and the Science, Industry, and Business Library. Indeed, in June, the library quietly sold five floors of the science library for $61 million. In a New York Times article published the morning of the December 19 press conference, however, the library gave a new explanation for the sources of the CLP’s funds. The library still says that $150 million is going to come from the city, but according to the Times, it now claims that $50 million is coming from the 2008 sale of the Donnell branch and $100 million from the sale of the Annex, an offsite storage space on West 43rd Street, as well as from the sale of several floors of SIBL. I can’t quickly find the date that the Annex was sold, but I think it was before 2008. (UPDATE, 7 January 2013: I guessed wrong. It turns out that the library sold its West 43rd Street annex for $45 million in August 2011.) At the bottom of an ink-on-paper press release, the library adds this sentence: “The Central Library Plan is a unique public-private partnership made possible with generous support from Mayor Michael R. Bloomberg, City Council Speaker Christine C. Quinn, the New York City Council, the Empire State Development Corporation, Manhattan Borough President Scott Stringer, Stephen A. Schwarzman, Abby S. Milstein and Howard P. Milstein, and an anonymous donor.” The allocation from the city explains the politicians’ names, and the Milsteins’ names are accounted for by their gift for the Bryant Park storage facility. By also listing Schwarzman and an anonymous donor, the library seems to be suggesting that it considers their gifts, too, to be sources of the CLP’s financing. If you add up all these sources of money, you get a sum twice as large as what the library claims that the CLP will cost. I doubt there’s anything very fishy here. I suspect that the conflicting accounts mean only that the library plans to spend down its endowment—to which the sale of the Annex, the sale of the Donnell, Schwarzman’s gift, and other gifts have contributed—in order to pay for the reconstruction, and then plan to replenish the endowment by selling the Mid-Manhattan and Science, Industry, and Business properties. One last financial note: In its press release, the library now concedes that “we expect the actual budget to be somewhat higher” than the previous estimate of $300 million.)

Asked about modifications to the building, including the possibility of an entrance directly into Bryant Park, Marx said that the cloak room at the north entrance of the building, on 42nd Street, would be “opened up.” He said that four revisions to the building would require approval from the Landmarks Preservation Commission: replacing a stretch of wall on the south side of the building with a new loading dock, installing a new air conditioning unit on the roof, converting two windows on the west façade into emergency fire exits, and modifying several windows so that they could open during a fire if necessary. As for a Bryant Park entrance, Marx said he personally thought it would be a great idea, but that the library had decided against it, so as not to compromise the western façade and in order to be “mindful of the park’s interests.”

Someone asked what lessons the library had learned from Hurricane Sandy. Had the library taken sufficient precautions against flooding? Would it acquire a new emergency generator? Yes, Marx replied, the library will have a new emergency generator. As for flooding, he noted that the Bryant Park Stack Extension is built on the foundations of a 19th-century water reservoir, whose retaining walls are 16 or 17 inches thick. An inspection after Sandy discovered no leakage. Flooding from above is not a danger, either, he said; sea levels would have to rise 55 feet before they could reach Bryant Park.

A final questioner asked why the library couldn’t simply improve the air conditioning in the stacks. Marx asserted that it would cost $50 to $75 million to bring the air conditioning up to the level the library wants, and that the stacks would in that case remain vulnerable to fire.

Further impressions

I’m still thinking about my position in this debate. As I’ve said, I’m grateful that the library has agreed to store more books under Bryant Park. Nonetheless, I still wish that the library were leaving the 42nd Street building alone and instead doing a stand-alone renovation of the Mid-Manhattan Library, as I suggested in the spring. There’s a hint that such an alternative might be more feasible than ever. In October, the New York Times reported that Mayor Bloomberg is pushing to re-zone midtown so as to allow for more skyscrapers. The Mid-Manhattan Library is just outside the border of the proposed new zone, and if the city were to draw the new perimeter so as to include the MML, the library might be able to pull off on that site the sort of bold but money-making construction project that the Museum of Modern Art managed a few years ago. In any case, even if the CLP now has too much political momentum to be stopped, there’s something to be said for continuing to pay attention and for trying to hold the library to its promise to sustain its research mission.

I’m not terribly impressed with Foster’s architectural plans, but in his defense, it should be said that the constraints on his design are considerable. As Foster himself noted, the space of the Rose reading room is comparable to the space below it, so one way to imagine the new space is to stand in the Rose and consider how the space downstairs differs from it. The windows in the lower space are narrower than those in the Rose and admit less light. There are windows on two sides of the Rose reading room but only on one side of the space below. The windows in the Rose are raised well above the street, but those in the space below look out onto the backs of two restaurants that abut the library, blocking a considerable portion of the view, especially on the southern half of the western facade. The Rose has only one floor, but four levels will be sandwiched into the space below. The Rose is an echoey space, but visitors to it are asked to be quiet. Will noise be a problem in the space below?

Foster and Marx emphasized in their remarks that the new space will be built so as to be easily repurposed if the library’s needs change. That flexibility is prudent, but it’s disappointing that Foster’s design gives little sense of his vision of the library’s needs now. What function or functions is this form meant to serve? At the press conference, it seemed to me telling that Foster hadn’t considered the problem of how to bring books into the Rose reading room. More than a few people I’ve spoken with have likened the new space to an airport lobby, perhaps because it’s so little shaped by the purposes that people have when they come to a library. Where’s the check-out? Where do you return books? Where will visitors access the catalog? If catalogs are not going to be a first resort, will there be other ways for visitors to discover what the library has to offer? It’s been pointed out to me by several people that in the architectural renderings released by Foster, multiple copies of books are displayed on shelves face out, as they sometimes appear in bookstores, rather than single copies spine out, as they almost always appear in libraries. (See the image detail at the top of this post for an example, which displays a Norman Foster monograph next to one on the New York Public Library’s original architects, Carrère and Hastings.) Will music and film be lent, or only books? Will there be computers for people who don’t own one, and if so, where? Are there going to be places in the new library where book groups can meet, or where job applicants can learn how to shape a resume? Where’s the information desk? Which shelves will be for ready reference, and which for books to be checked out, and how close will the two kinds of shelves be to desks? Or will the library encourage visitors to use online reference sources? Where are the librarians, and how will the design shape their interaction with patrons? I understand that preliminary sketches can’t be expected to answer all these questions, but it seems fair to expect the general principles with which these problems will be approached.

First impression of Norman Foster’s NYPL plans

This morning, I attended a press event at the New York Public Library for the unveiling of Norman Foster’s architectural plans. The library administrators’ proposal to replace the bookshelves of the 42nd Street research branch with a new circulating library has been controversial, and I was curious to know what the proposed renovation actually looked like. I’m still mulling over my impressions, but I want to convey two things, quickly (and to post my photos of the architectural model, which doesn’t seem to be available on the library’s website).

The first is that I am deeply grateful to the administrators and trustees of the library for agreeing to double the library’s storage capacity under Bryant Park. Library trustee Abby Milstein and her husband Howard Milstein gave $8 million to the library in September, for the purpose of outfitting the second, currently unused level of the Bryant Park Stack Extension, soon to be renamed in the Milsteins’ honor. The library administrators’ original plans called for a reduction of onsite book storage from 4.5 million to 1.5 million volumes, but thanks to the Milsteins’ gift, the reduction will only be to 3 million. I appreciate the generosity of the Milsteins and the flexibility of the library’s trustees and administrators.

The second is that I remain a skeptic of the proposed renovation nonetheless (though out of a recognition of personal limits, probably a less vocal one than I was last spring). Books used to arrive in the Rose Reading Room via an elevator under the delivery desk in the center of the room. Squinting at the architectural model this morning, I saw that the space under the delivery desk is now empty, so during the question-and-answer period, I asked how books would arrive under the new plan. There’s currently a conveyor belt that brings books from the Bryant Park Stack Extension into the library building, and in reply to my question, Marx said that a second conveyor belt would be added to it, and a new elevator built somewhere on the south end of the building. The architectural historian Charles Warren followed up my question with a few others: Would the new elevator be put where the Art and Architecture reading room is now located? No, it was to be to one side, probably in the southeast corner of the Rose room. How would books get from the southeast corner of the Rose to the delivery desk? There might be room to build yet another conveyor belt in the crawl space between the floor of the Rose Reading Room and the drop ceiling of the new circulating library. Was this crawl space large enough for a person to walk in it? No. Then how would the conveyor be repaired if it broke?

Marx and Foster assured Warren that they would be able to come up with an answer, and I have no doubt that they can and will. But it seemed telling that getting the books into the reading room was an afterthought, a detail not yet worked through. In Carrère and Hastings’s original plans for the 42nd Street building, the concern was central. The whole structure was designed around it. I look forward to reading what others, especially architecture critics, make of Foster’s plans.

“Melville’s Secrets,” the published essay

My essay “Melville’s Secrets” has been published in volume 14, number 3, of Leviathan: A Journal of Melville Studies. If you’re a member of the Melville Society, your copy should be reaching your mailbox shortly. If your library subscribes to Leviathan, you can read my article at the publisher’s website. If your library doesn’t subscribe, please get in touch using the form at the bottom of my “About” page, and I’ll send you a digital offprint. Per the copyright agreement, I’m allowed to send the offprint to anyone, but I’m not allowed to post it on a public website—so you have to ask! The essay began life as a talk I gave at SUNY Geneseo on 23 September 2010, for the annual Walter Harding Lecture. I am allowed to post on this website the pre-peer-reviewed version of the article, and eventually I will, but really I’d rather have you read the original version, so please feel free to ask for it!

Those people were a kind of solution: the future of books and copyright, part 2

It’s bracing to spend time with people who know in their hearts that your way of life is going the way of the horse and buggy.

In an earlier post, I described a few legal concepts in vogue at In Re Books, a conference about law and the future of the book that I attended on 26 and 27 October, and I characterized the conference as haunted by the ghost of the late Google Books settlement. In this post, I’d like to relay what the conferencegoers had to say about the future of publishing, including the problem of how to price e-books.

Most of the conferencegoers seemed to be lawyers, law professors, or librarians. One of the exceptions, the author James Gleick, noted that everyone present was united by the love of books—and then added that the love sometimes took the form of a wish to have the books for free. But the lawyers themselves didn’t seem to think of their doomsaying as in any way volitional. Some of them even seemed to look upon the publishing industry with pity; they hoped it would soon be out of its misery.

Consider, for example, the battle being waged between Amazon and traditional publishers over the price of e-books. Most people in publishing see their side as waging a crusade in the name of literature. Their version of the story goes like this: A few years ago, Amazon had managed to establish a near-monopoly on e-books by offering low prices. Amazon in many cases sold e-books to customers for even less than the wholesale price that publishers demanded, losing money for the sake of market share. Publishers were alarmed. If customers came to expect such low prices habitually, and if Amazon’s monopoly remained unbroken, publishers would be forced in time to lower their wholesale prices radically. Editors, designers, publicists, and sales representatives would lose their jobs, and books would no longer be made with the same level of care—if publishers managed to remain in business at all. When Apple debuted the Ipad in 2010, publishers saw a chance to rebel. They agreed with Apple to sell e-books on what was called the “agency model”: publishers were to set the retail price, and Apple was to take a percentage, the way it did with the apps sold through its Itunes store. With many titles, the publishers were agreeing to sell e-books to Apple for a wholesale price lower than the one they had been getting from Amazon, but the power to control retail price seemed worth the sacrifice. The publishers gave Amazon a choice: accept the agency model or lose access to books. Amazon complained that the publishers were abusing their “monopoly” over books under copyright, and the retailer briefly tried to coerce publishers by erasing the “buy” buttons from the Amazon pages of the publishers’ print titles. In the end, though, Amazon gave in, and over the next couple of years, Amazon’s market share in e-books fell. Today the Nook and the I-Pad offer the Kindle stiff competition. In April 2012, however, the Department of Justice accused the publishers and Apple of antitrust violations. A few publishers settled, for terms that required them to allow Amazon to discount their e-books as before. Others are still fighting the charges. Amazon, meanwhile, has become a publisher itself—of serious books, as well as vanity titles. How, most people in publishing want to know, can the Department of Justice fail to see that Amazon is trying to drive traditional publishers out of business?

The lawyers at the In Re Books conference were able to see that, as it happens. They just didn’t see it the way people in publishing do. They saw, rather, a historical process of Hegelian implacability, and they saw the publishers as desperate characters who had resorted to possibly illegal maneuvers in a futile attempt to prevent it. “You know, the agency model,” said Christopher Sagers, a law professor at Cleveland State University who specializes in antitrust, “we used to just call it price-fixing.” Sagers allowed that a recent Supreme Court ruling, the Leegin case of 2007, was somewhat indulgent toward so-called “vertical” price-fixing, which consists of a series of contracts between a manufacturer and its distributors and retailers, along the vertical axis of the supply chain, that allows a manufacturer to determine retail prices of its goods. (Apple famously prohibits its retailers from discounting its products without permission, for example.) But “horizontal” price-fixing remains illegal, as do certain strains of “vertical” price-fixing, Sagers said, and the Department of Justice thought that the publishers and Apple were guilty along both axes. It was no defense, Sagers pointed out, to say that the publishers were choosing to lose money. The law didn’t care about that. Nor was it a defense to say that publishing is special. Throughout history, Sagers said, companies have responded to antitrust accusations by claiming to be special, and Sagers didn’t think publishing was any more special than, say, the horse-and-buggy-making industry had been. In Sagers’s opinion, publishing is suffering through the advent of a technological change that is going to make distribution cheaper and, through price competition, bring savings to consumers. Creative destruction is in the house, and there is no choice but to trust the market. “Someone will figure it out,” said Sagers, “it” being a new economic engine for literature, and he apologized for sounding like Robert Bork by saying so. As for the charge that Amazon was headed for a monopoly, Sagers’s reply was, in essence, Well, maybe, but the answer isn’t to let a cartel set prices.

The legal question at issue is somewhat muddied by the fact that publishers are allowed to set the retail prices of books and even e-books in a number of other countries, where publishing is heralded as special. Germany, France, the Netherlands, Italy, and Spain allow the vertical price-fixing of books, as Nico van Eijk, of the University of Amsterdam, explained at the conference. The United Kingdom, Ireland, Sweden, and Finland, on the other hand, do not. Van Eijk thought he saw a pattern: The warm and emotional countries indulge their literary sector, while the cold and as it were remorseless ones subject it to the free market. The nations that allow for “resale price maintenance,” as it’s called, in publishing justify the legal exception for three reasons. They believe that it brings a bookstore to every village, that it makes possible a wide selection of books in those bookstores, and that it enables less-popular books to be subsidized by more-popular ones. In other words, the argument for resale price maintenance rests largely on the contribution that local, independent bookstores make to cultural life. And bookstores do thrive in countries where publishers may set retail prices. The trouble is that the same arguments don’t work as well with e-books, as Van Eijk pointed out. E-bookstores are virtually ubiquitous, thanks to widespread internet access, and every e-book available for sale is available in almost every e-bookstore. As for cross-subsidization, van Eijk dismissed it as already doubtful even as a justification for printed books. (In fact, though several people I spoke to at the conference seemed either unaware of it or not to believe in it, the current publishing system does allow for cross-subsidization. Most books of trade nonfiction wouldn’t get written without it. Publishers advance substantial sums to writers who propose books that sound promising, and publishers can afford the bets because they’re buying a diversified portfolio: if the biography of Henry VIII doesn’t make it big, maybe the cultural history of the Mona Lisa will. If publishers are driven out of business, only heirs and academics are likely to be able to put in the years of research necessary to write a book of history, unless the market comes up with a new funding mechanism.) Most European countries seem skeptical of allowing resale price maintenance for e-books, but “we’ll always have Paris,” van Eijk joked. French law, he explained, not only allows but requires fixed pricing for e-books. Moreover, France insists on extraterritoriality: even non-French booksellers must comply if they want to sell to French customers.

Niva Elkin-Koren, of the University of Haifa, predicted a “world of user-generated content,” where the tasks of editing and manufacturing books will be “unbundled,” and “gatekeeping,” which now occurs when Manhattan editors turn down manuscripts, will take place through online reviews after the fact. She seemed to see the “declining role of publishers,” as she put it, as a liberation, but I’m afraid I found her vision bleak. In the future, will we all be reading the slushpile? Jessica Litman, of the University of Michigan, also thought little of publishers, accusing them of angering libraries and gouging authors. As a bellwether, Litman pointed to the example of a genre author whom she likes who now sells her books online. I found myself wondering if Litman was extrapolating from an experience with academic and textbook publishers, some of whom do bully authors and have resorted to extorting the captive markets of university libraries and text-book-buying students. In my experience, trade publishers go to great pains to keep prices low and authors happy.

In the last panel session, a masterful analysis of the economics of publishing in America and Britain was presented by John Thompson, of the University of Cambridge, author of Merchants of Culture. Thompson began by surveying the forces of change in the last couple of decades. In the 1990s, the rise of bookstore chains killed off independent bookstores. The introduction of computerized stocking systems brought greater control over when and where books appeared in stores. Once upon a time, paperbacks were publishing’s bread and butter, but mass-marketing strategies originally devised for paperbacks were applied to hardcovers, and in time hardcovers became the moneymakers. Literary agents grew more powerful. A handful of corporate owners consolidated control.

Thanks to these changes, said Thompson, today there are large publishers and many tiny ones, but very few that are middling in size. That’s because a midsize publisher misses out on the economies of scale available to a large one, and misses out on the barter-circle of favors that indie presses are willing to exchange with one another. Large publishers are preoccupied with “big books,” which Thompson defined as “hoped-for best-sellers,” because their corporate owners demand annual growth of 8 to 10 percent, even though the overall market for books is stagnant. At a large publisher, the only way to keep your job is to pursue big books, however mathematically doomed the pursuit may be in the larger scheme of things. Big-book status depends, in Thompson’s formulation, not so much on fact as on “a web of collective belief”; big books are identified by the “expressed enthusiasm of trusted others.” Certain people—often, literary agents—become brokers in this economy of belief, enabling them to extract higher prices. Thompson called the result “extreme publishing.” Every year, the reasonable sales predictions aren’t good enough, and editors are forced to try to “close the gap,” that is, to come closer to the sales figures that their corporate overlords are demanding—a task for which only big books are big enough even to be plausible. Meanwhile, as bookstores are shuttered, it’s becoming harder and harder to bring new titles to customers’ attention. In hopes of making a big book, publishers pay to feature their books in store windows, where a new book has about six weeks to prove itself. If it shows signs of doing well, publishers have become adept at “pouring fuel on a flame,” as Thompson put it. But they’ve also become ruthless at killing off the weak. About 30 percent of books are returned from bookstores to publishers, and most are pulped.

In the United States, said Thompson, publishers face agents who are able to demand higher advances for their authors. In the United Kingdom, where the Net Book Agreement, which allowed publishers to set retail prices, collapsed in the 1990s, publishers face powerful retailers like Tesco who not only sell at a discount but demand cuts on wholesale prices.

As for e-books, Thompson stressed that the market is changing fast enough to make a fool out of anyone claiming to know what it will do next. He noted that when e-books were introduced, most analysts expected business titles to be the pioneers, but instead genre fiction led the way. Forty to fifty percent of romances, science fiction novels, and thrillers are now sold in digital form. (I thought I saw a hint of an explanation for the divergence in a talk given by Stuart M. Shieber, a professor of computational linguistics at Harvard. After analyzing the pros and cons of print books and e-books—including such factors as resolution, weight per reading unit, capacity for random access, and pride of ownership—Shieber predicted that when display technology has been perfected, “E-book readers will be preferable to books” but “Books will still be preferable to e-books.” If Shieber is right, then perhaps what differentiates is where a reader’s attachment lies. If your attachment is to the experience of reading rather than to a particular set of titles, you’re more likely to prefer an e-reader. But if your attachment is to particular books, you’ll prefer to read them in print. After all, at the extreme, if all you want to do is re-read a single text, you probably won’t bother with an electronic device.) But even literary fiction is shifting, Thompson noted. Twenty-five percent of the sales of Jonathan Franzen’s Freedom were e-books, and fifty percent of Jeffrey Eugenides’s The Marriage Plot.

Though he stressed the hazards of guessing, Thompson concluded by making a number of short-term predictions. He thought Amazon would continue to grow and bookstore chains to wither. He foresaw more consolidation, as weak publishers fold and impatient corporate owners decide to get out of the publishing business. As bookstores vanish, they will be taking their windows and display tables with them, and it will become harder and harder to introduce new books to readers, a battle that will have to fought online. Thompson expected that different kinds of books will continue to shift from print to digital formats at different speeds. Price deflation for e-books will be perhaps publishers’ greatest challenge, and publishers will very likely be forced to reduce costs in order to remain profitable—shedding staff and limiting themselves even more rigidly to big books than they do now. Nipping at their heels, all the while, will be an army of small presses and start-ups, many of whom will be trying to come up with new kinds of “disintermediation”—new ways to abridge a book’s journey from writer to reader.

What does it all mean? In looking over these notes, I find myself wondering if copyright is meaningful in the digital world without some power to set retail prices. The rigorous application of free-market logic to issues of copyright sounds slightly off-key to me. It is nowhere written that the law has to defer to macroeconomics, which copyright, by its very nature, defies. No market left to its own devices would come up with copyright. The whole point of it is that society has decided that the written word is special, and has recognized that perfect competition in the literary sphere quickly leads to prices so low that no writer can make a living. (An important subsidiary point is that society demands, in exchange for granting this exceptional economic protection, a temporal limit to a copyright’s term, but we’re not litigating that aspect of the case today.) Amazon’s publicists had a point when they lamented that copyright is a monopoly. In the market for a particular work of literature, it is one, a legal one. It is authorization to sell a work of literature at a higher per-unit price than the market would support if everyone were free to print it. Authorization alone would be meaningless, however. The government also has to prevent a publisher’s competitors from selling the same work at a lower price. In her remarks at the conference, Elkin-Koren predicted that as books turn into e-books, they will move from being commodities to being services, and publishing will merge with retailing. “There is no difference between a bookseller, a publisher, and a library,” she said. But if she’s right, then if copyright is to have any force, shouldn’t the power to set a book’s price at its “first sale” be extended to the price of the license sold to the reader-consumer? The extension might be necessary to preserve the spirit of copyright. And given the ease with which digital copies can be made and shared, it might also be necessary to retain beyond the “first sale” of an e-book the copyright controls that are exhausted upon the first sale of a printed book. That may sound inelegant, but there’s no reason to think that the best way for law to foster literature is going to be natural-looking. Copyright never has been natural, and it never will be. The challenge is to find the least amount of legal protection adequate to retaining publishing as a viable business.

The Future of books and copyright

This past weekend, just before the hurricane, I attended In Re Books, a conference about law and the future of the book convened by James Grimmelmann at the New York Law School. Playing the role of Luddite intruder among the futurologists, I gave a talk about the hazard that digitization may pose to research and preservation. Though there were a few librarians, leaders of nonprofits, and even writers present, most of my fellow conference attendees were lawyers who specialize in copyright, and I discovered that copyright lawyers see the world rather differently than do the writer-editor types with whom I usually rub shoulders. They don’t expect publishing as I know it to be around much longer, for one thing. I thought I’d try to write up my impressions of the time I spent in their company. Please keep in mind that I’m not a lawyer myself. I’m just a visitor who went to the fair.

A specter was haunting the conference: the ghost of the settlement that Google Books tried to make with the Authors Guild several years ago. That settlement, slain by Judge Denny Chin in late 2011, had attempted to obtain digital rights to what are known as orphan works, books that are protected by copyright even though the author or publisher who holds the copyright can no longer be found. The settlement had proposed to set up a collective licensing system that would charge for digital access to all books under copyright, parented and ophaned. Proceeds from orphan works, it was suggested, might be shared with findable authors, if no actual rightsholder could be found and if anything was left over after the rights management organization was done paying for itself. The proposal was far from perfect. Why should Google get to sell orphan works and nobody else? Why should the profits from orphan works go to people who didn’t write them? It turns out that the death of the agreement is not much lamented by the copyright lawyers. When Minda Zeitlin, president of the American Society of Journalists and Authors, asked, “Is there anyone better to represent dead and unfindable authors than living and findable ones?” the retort from Pamela Samuelson, a copyright law professor at the University of California at Berkeley, was sharp: “I’m a better representative of an author like me,” Samuelson said, her implication being that an academic author aims in publishing to further knowledge and build a reputation, not make money. Roy Kaufman, who works at the Copyright Clearance Center, a collective licensing agency founded in 1978 in response to the disruptive technology known as the photocopier, was at pains to distinguish his employer’s system from the one advanced by Google Books and the Authors Guild. The Copyright Clearance Center is opt-in and nonexclusive, he assured the audience. His message was studiously non-threatening: mass digitization could involve rightsholders. Maybe it could take the form of collective licenses arranged between social-media networks and publishers. Facebook, for example, could pay the New York Times for articles and photos that its users posted.

Kaufman’s support for collective licensing, however cautious, was atypical. Most at the conference were against it. Samuelson thought it inadvisable in general, as did Matthew Sag, of Loyola University Chicago, who justified his dislike by pointing to the failures and subsequent reboots of a compulsory licensing system recently set up in the United States for the webcasting of music.

What, if anything, will take the ghost’s place? At the conference, a leading contender was the idea that fair use might solve the orphan works problem—an idea recently advanced by Jennifer Urban of the University of California at Berkely. Fair use, as I wrote in a review-essay for The Nation earlier this year, is an exception to copyright written into American law in 1976. It’s because of fair use that a reviewer doesn’t need to ask permission before he quotes from a book, and it’s because of fair use that an Obama campaign commercial can quote a Romney speech, or vice versa, without paying for it. In the last few years, courts have been more and more generous in how they define fair use, perhaps because Congress seems so unlikely to help sort out the tangles in copyright. In a recent case between the Authors Guild and a digital books repository called Hathi Trust, for example, a court found that three of the four things that Hathi wanted to do with digital texts were fair use: data-mining, indexing, and providing access to the blind. America’s 1976 copyright law specifies four factors to consider in determining fair use—the nature and purpose of the new use, the nature and purpose of the original work, the amount taken, and the impact on the original creator’s income—but in the last couple of decades, judges have focused on whether a new use is “transformative” of the old content it borrows from. Whatever purpose Thomas Pynchon had in mind when he wrote Gravity’s Rainbow, for example, he probably didn’t imagine computerized search of his novel along with a myriad of others in order to find patterns of word usage. That’s a completely new use, a transformation of the purpose of his words unlikely to interfere with the money he expected to make from his novel, so the judge in the Hathi Trust case found it fair.

Sag and Samuelson favored Urban’s idea, which was also mentioned by Doron Weber of the Alfred P. Sloan Foundation, which funds the Digital Public Library of America. Since I hadn’t read Urban’s paper, I asked Sag what kind of transformation lay behind her deployment of fair use. There wasn’t any, he explained, to my surprise, and now that I look at the paper, I see what he means. Urban thinks libraries and universities should be able to provide digital facsimiles for their patrons to read—exactly the same use for which the books were originally published. She also frankly admits to wanting the right to reproduce entire works, not just samples or snippets of them. But she argues that such use would be fair nonetheless, based on the four factors conventional in fair-use analysis. She maintains that libraries and universities are nonprofit institutions, who would be offering access to the texts as a noncommercial service for such public-spirited purposes as research and preservation. (For this part of her argument to hold water, would a university library need to open itself to the public in a general way? Right now the services of a university library, however worthy, are for the most part bestowed only on its own students and faculty, and their character is not purely altruistic.) And she argues that the orphanhood of an orphaned work is more important than previous analysts have seen: “Orphan works,” she writes,

represent a clear market failure: there is no realistic possibility of completing a rights clearance transaction, no matter how high the costs of that transaction, because one party to the transaction is missing.

Therefore market harm, the fourth factor of fair-use analysis, is nugatory, in Urban’s opinion. The trouble with her argument here, I think, is that it’s impossible to know whether a so-called orphan work is really an orphan or merely a work whose parents haven’t shown up yet. If the parents do exist, the market harm to them is real, and it would be as wrong for a court to give the value of their work to Urban’s university library as to give it to Google or a third-party author. Urban seems to be transferring the copyright rather than carving out an exception to it, and I’m afraid that only Congress, in its capacity as the sovereign power of the United States, has the authority to dispose of someone else’s copyright, in an act of eminent domain. Without any claim of a transformation, it seems unlikely to me that Urban will convince a court to define fair use so broadly that it includes reproducing whole works for much the same purpose that they were originally published. But this is just my opinion. The copyright lawyers seem excited by her idea, and as yet no one knows how far it will go. It’s up to the courts. As Jule Sigal, of Microsoft, noted in his presentation, the orphan-works problem has passed through the Age of Legislation (2005-2008) and the Age of Class Action (2008-2011), and we are now living in the Age of Litigation.

The other big new idea at the conference was that the first-sale doctrine might be extended to e-books. That sentence will sound like gibberish to the uninitiated, so let me back up and explain. The first-sale doctrine is a legal concept that limits the control that copyright affords. Specifically, it limits copyright control to the period before an item under copyright is first sold. Once you buy an ink-on-paper book, for example, you’re free to re-sell the book on Ebay at a fraction of the cost. Or give it to your boyfriend. Or take an X-acto blade to it and confuse people by calling the result art. You don’t have the right to sell new copies of the book, but you’re free to do almost anything else you like with the specific copy of the book that you bought. Without the first-sale doctrine, used bookstores would be in constant peril of lawsuits.

Two speakers at the conference told the story of Bobbs-Merrill v. Straus, the 1908 case that established the first-sale doctrine. On the copyright page of the novel The Castaway, the publisher Bobbs-Merrill set the retail price at one dollar and threatened to sue discounters for breach of copyright. Macy’s sold the book for eighty-nine cents anyway, triggering a lawsuit, and the court ruled that copyright afforded Bobbs-Merrill control over the book’s price only up to the moment when Bobbs-Merrill, as a wholesaler, sold copies to Macy’s, which then became free to set whatever retail price it wanted. Ariel Katz, of the University of Toronto, noted that the story is usually told as if the case involved an attempt at what’s known as “vertical” price-fixing—that is, an attempt by a wholesaler to fix the prices charged by independent retailers further down the supply chain. But Katz maintains that it was actually a story of “horizontal” price-fixing—that is, an attempt at collusion in price-fixing by companies that are supposed to be in competition with one another, wholesalers in collusion with wholesalers, and retailers with retailers. The Straus brothers who ran the Macy’s department store were “retail innovators,” Katz explained, who sold a wide variety of goods, including books, at steep discounts, thereby angering publishers and traditional booksellers. The members of the American Publishers Association publicly swore to refuse to supply retailers who discounted the retail price of books, and the American Booksellers Association publicly swore to boycott any publishers who didn’t toe the American Publishers Association’s line. It was the Straus brothers who first went to court, accusing the publishers and booksellers of antitrust violations, but the outcome of this first case was ambiguous: the court ruled that publishers could only set the prices of books that were under copyright. It wasn’t until the 1908 case that the court limited price-setting even of copyrighted books to the period before their first sale.

(As Katz pointed out, it isn’t obvious why publishers and booksellers should have been willing to collude in fixing prices, and he proposed an economic explanation that I wasn’t quite able to follow. He suggested that the price-fixing was an attempt to solve a challenge first discovered by Ronald Coase: if you sell a durable good and you’re a monopolist, you soon find that your monopoly isn’t as profitable to you as you’d like it to be, because you’re in competition with yourself—that is, you’re in competition with all the durable goods you’ve already sold, which suppress demand. The only way to keep prices from falling is to convince consumers that you’ll never let them fall. Katz argues that the limit to booksellers’ shelf space helped publishers make credible their promise never to lower prices, and that in the digital world, where shelf space is unlimited, no similar promise will be as credible. He ran out of time before explaining in detail how this mechanism would work, and as I say, I didn’t quite follow. I also wasn’t quite certain that books qualify as durable goods. Most people, once they’ve read a book, prefer to read a new one instead of re-reading the one they just finished, a fact that suggests that books are more like loaves of bread than refrigerators. But I may be missing something.)

Aaron Perzanowski, of Wayne State University, framed the story of Bobbs-Merrill v. Straus in the context of a common-law tradition of rights exhaustion—the word exhaustion here having the sense of a thing coming to its natural end. In Perzanowski’s opinion, the right to control price is not the only aspect of copyright that expires when an item under copyright is sold. The owner of a work has purchased the use and enjoyment of it, Perzanowski argued, including perhaps the rights to reproduce the work and to make derivative works. Perzanowski made explicit a further leap that remained mostly implicit in Katz’s talk: Shouldn’t the first-sale doctrine apply to e-books, too? As a contractual matter, e-books are rarely sold, in order to prevent exactly this eventuality. In the fine print, it transpires that what distributors purchase from publishers, and what readers purchase from distributors, are mere licenses. But if courts were to recognize readers of e-books as owners, the courts could grant readers the right to re-sell and a limited right to reproduce what they had purchased. Jonathan Band, of Policy Bandwidth, in his assessment of recent legal victories won by university libraries on the strength of fair-use arguments, noted that he saw the first-sale doctrine as likely to be important in future disputes over digital rights. Libraries, he said, felt that they had already purchased the books in their collection and ought to be able to convey them digitally to their patrons.

Extending the first-sale doctrine to e-books might make libraries happy, but it would horrify publishers. Right now, only two of the six largest American publishers allow libraries to lend all of their e-books, and one of those two sells licenses that expire after twenty-six check-outs. Librarians sometimes become quite indignant over the limitations and refusals. “Are publishers ethically justified in not selling to libraries?” one asked at the conference. A recent Berkman Center report, E-Books in Libraries, offered some insight into publishers’ reluctance:

Many publishers believe that the online medium does not offer the same market segmentation between book consumers (i.e., people who purchase books from a retailer) and library patrons (i.e., people who check out books from a public library) that the physical medium affords.

When was the last time you checked out a printed book from the library? My own impression is that gainfully employed adults rather rarely do. (At least for pleasure reading. Research is a different beast.) Maybe they prefer to buy their own books for the sake of convenience, which ready spending money enables them to afford. Or maybe it’s to signal their economic fitness to romantic partners, or to broadcast their social status more generally. But whatever the reason, the fact is that publishers don’t sacrifice many potential sales when they sell printed books to libraries, because library patrons by and large aren’t the sort who purchase copies of books for themselves. The case seems to be different with e-books, though, especially if patrons are able to check them out from home. E-book consumers signal their economic status by reading off of an I-pad XII instead of a Kindle Écru; the particular e-book that they’re reading is invisible to the person on the other side of the subway car, so it might as well be a free one from the library. That means that e-book sales to libraries cannibalize sales to individual consumers. Publishers have tried charging libraries higher prices for e-books. They’ve tried introducing technologically unnecessary “friction,” such as a ban on simultaneous loans of a title, or a requirement that library patrons come in person to the library to load their reading devices. The friction frustrates library patrons and enrages librarians, and even so, it hasn’t been substantial enough to reassure the publishers who are abstaining from the library market altogether. If the future of reading is digital, the market-segmentation problem raises a serious question about the mission of libraries. In his remarks at the conference, the writer James Gleick, a member of the Authors Guild who helped to negotiate its late settlement with Google Books, said that he doubted that every lending library needed to be universal and free, and that he wished the Digital Public Library of America, which is still in its planning stages, were trying to build into its structure a way for borrowers to pay for texts under copyright. The challenge of bringing e-books into public libraries turns out to be inextricable from the larger problem of how authors will be paid in the digital age.

I’ll try to report what the lawyers think of that larger problem in a later post.

UPDATE: Part two here.