When I was a kid, I used to play with the girl who lived across the street. But I never got to choose the game. When we were at her house, she would say “It’s my house, so I get to pick.” When we were at my house, she’d say, “I’m the guest, so I get to pick.” I would’ve been fine with either of these rules, but I was not fine with her choosing whichever was to her advantage at that moment.

Visiting BookExpo America (BEA) last week, it occurred to me that, on the question of whether an ebook is “sold” or “licensed,” many publishers are dead ringers for that little girl across the street.

I attended several of the panels on ebooks and libraries, including E-books From Libraries: Good For Authors?  and How The Douglas County Libraries Model Bypasses The Vendor System & Benefits Everyone. Overall they were positive, informative, progressing past many of the logjams of years past in search of data to drive decision making, and full of praise for OverDrive’s Big Library Read, the Big 6 pilots with NYPL and others, the Douglas County Model, and anything else that might provide that data.

But when it came to questions from librarians about things like interlibrary loan and/or resale of used ebooks, it was very clear from the responses that publishers consider this transaction a license—whether or not they used the word. They felt very comfortable saying that when libraries pay for an ebook, it doesn’t come with the right to do those things. But if it were a sale, libraries would have those rights, under the first sale doctrine. There might be, as per the ReDigi case, some hoops to jump through as to which technical mechanisms to accomplish them are permitted and which ones are not, but those would be matters for the courts to settle, not publishers. (For more on first sale, licensing, and ebooks, see “Licensed to Sell? IDPF Panel Tackles Tough Questions on Digital Content.”)

Yet when Paul Aiken, executive director of the Authors Guild, referred to the transaction as a license, not a sale, publishers demurred. And Aiken supplied the reason, which had not previously been clear to my library-centric viewpoint. I knew that publishers were afraid that libraries would only buy one copy and loan it to everyone in the world, and that the sale of used ebooks weeded from library collections would erode the sale of new ones. But what I did not know is that publishers, according to Aiken, have to pay authors 50 percent for a license, and only 25 percent for a sale.

While obviously the specifics may vary from contract to contract, if Aiken’s example is even close to representative, that provides a giant financial incentive for publishers to classify a transaction which sends ebooks to libraries in exchange for money to publishers as a “sale” when facing authors, and the exact same transaction as a “license” when facing libraries.

And that’s not okay in my book. I don’t really have a strong opinion on whether this transaction should be considered a sale or a license. But I strongly believe that it needs to be one or the other, not some kind of weird hybrid that offers publishers all the advantages and none of the costs of both, to the disadvantage of other parts of the publishing ecosystem.

I don’t want to derail this new, better détente we’ve got going lately. Publishers have finally decided to play with us, and that’s great. But they still need to play fair.