This is the second part of a three part series on the First Sale Doctrine, e-books and the impact on libraries. Check out Part 1 here.
E-Books, the beginning of the end?
E-readers have been on the market for only five years; however, they are becoming ubiquitous with the Amazon Kindle perhaps being the most recognized format. The advent of e-readers and their impact on the dissemination of information is clearly profound, and of course, libraries in the pursuit of their core missions have readily adopted the format for their patrons. There is however, a potential serpent in this Garden of Eden of revolutionary information access.
On February 24, 2011, Overdrive Inc., the major provider of digital content for e-Books, as well as other media, sent out an update letter to their library customers on the status of the industry. Concealed within the usual glad-handing that is part and parcel of such documents was a hidden bomb that sent librarians into a frothing frenzy of indignation.
“OverDrive will communicate a licensing change from a publisher that, while still operating under the one-copy/one-user model, will include a checkout limit for each eBook licensed. Under this publisher’s requirement, for every new eBook licensed, the library (and the OverDrive platform) will make the eBook available to one customer at a time until the total number of permitted checkouts is reached. This eBook lending condition will be required of all eBook vendors or distributors offering this publisher’s titles for library lending (not just OverDrive).”
It was soon learned that the publisher was HarperCollins and the demand limit was 26 checkouts. Here was a publisher in essence attempting to make an end run around the First Sale Doctrine and dictating draconian measures that it could have never considered with traditional print. As we have seen with the case law that has been presented above, the First Sale Doctrine turns on the concept of who owns what. Copyright law has attempted to keep up with the rapid changes in technology but is sadly lagging in addressing these very complex issues. Publishers of digital media, of course, want to maximize their revenue stream. Sadly, the perception seems to be that the only way to do this is by destroying what has been the understood model for decades. Unfortunately, we probably have already reached the tipping point.
If digital publishers have their way, e-Books will be licensed property and, therefore, the rights that were enjoyed under traditional print will evaporate and the First Sale Doctrine will essentially become irrelevant. This has disconcerting ramifications not just for libraries, but for a wide host of legal understanding that has been the underpinning of Copyright Law.
One has to consider the irony that if a library purchased a physical copy of a title the publisher would not have the right to impose a 26 check out limit, as in the case of HarperCollins. What makes an e-Book any different from a printed book? In the eyes of libraries and librarians there is not a difference, other than one type of content is physical and the other digital. HarperCollins is trying to cast e-Books as the same thing as computer programs. You never own an e-Book if it is considered a service instead of a product.
Many owners of e-readers would probably be surprised that they did not own the content of their devices. However, every day as we log in to the internet we regularly give away our ownership whenever we click an “I agree” button. In 2009 there was a scandal over Amazon’s Kindle when Amazon remotely erased copies of George Orwell’s 1984 and Animal Farm from owners of the e-reader who had purchased the digital book. As it turned out, the digital publisher, MobileReference, who had provided the e-Books to Amazon had incorrectly believed that Orwell’s novels were in the public domain.
Regardless of the error on the part of MobileReference, Amazon’s solution was a chilling example of what may be in store if there is not a new balance struck legislatively with copyright law. Amazon did publicly apologize for the deletions and provided credit to the holders of Kindles that had the books removed. Of course the irony of having Orwell’s seminal works deleted was not lost on many a blogger and news journalist.
Given the conditions being set by digital publishers such as HarperCollins, the challenges to the First Sale Doctrine in the courts, and the controversy over the Amazon deletions with the Kindle, libraries face a daunting set of circumstances. Yet digital content is the future of information. Most scientific, legal, educational, and research journals, due to cost, but also because of the ease of access, have switched completely over to digital publishing. Libraries are already investing considerable resources to meet the demands of the digital age.
However, if libraries are forced to agree to restrictive licenses from digital publishers and no longer own the content of their collections, what will this do to the institution? The Copyright Act grants copyright owners the exclusive right to make and distribute copies of their works. Ann Bartow, Assistant Professor of Law at the University of South Carolina and expert on intellectual property and copyright law, stated that “In the digital world, … even routine access to information requires “making a copy” as the courts have decided that unfixed, ephemeral RAM use of digital work is copying.” (Bartow) Bartow was referring to the 9th Circuit case MAI Systems Corp. v. Peak Computers Inc., where the Court stated, “The law also supports the conclusion that Peak’s loading of copyrighted software into RAM creates a ‘copy’ of that software in violation of the Copyright Act.”
If the trend continues as presented, there is a genuine concern that digital publishers will in effect severely limit the scope of libraries to lend material and perhaps even force librarians into an unreasonable position to be watchdogs of digital copyrighted media. This would create privacy concerns, which libraries in the past have staunchly protected. It could also limit or end the ability of libraries to create digital archives and thus endanger another traditional role of the library to preserve and maintain knowledge.
To be continued in Part III
 Houghton, Sarah (February, 25 2011) Librarian in Black: Library e-Book Revolution, Begin http://librarianinblack.net/librarianinblack/2011/02/library-ebook-revolution-begin.html
 Stone, Brad, (July 18, 2009) New York Times, Amazon Erases Orwell Books from Kindles http://www.nytimes.com/2009/07/18/technology/companies/18amazon.html
 17 U.S.C. A. § 106 (1), (3) 208
 Bartow, Ann, Libraries in a Digital and Aggressively Copyrighted World: Retaining Patron Access though Changing Technologies, Ohio Law Journal, Volume 26, at 3, 2001
 MAI Systems Corp. v. Peak Computers Inc., 991 F 2d 511,518 (9th Cir. 1993)