Press: Why We Miss the First Sale Doctrine in Digital Libraries

This is the fourth in an occasional series of articles from John Palfrey that will explore issues surrounding the efforts to launch and expand the Digital Public Library of America. Below is an excerpt:

“Publishers, ebook vendors, and libraries are engaged in a “tug of war” over the lending of electronic books, according toLibrary Journal’s recent ebook survey. This clash inhibits most libraries from fulfilling their important institutional missions to provide access to knowledge and preserve our cultural heritage. In the best case, this tug of war will be a temporary struggle. The best outcome is not a winner who holds all the rope and another lying on the ground with rope-burned hands. If there must be a winner of any kind, it ought to be the reading public.

“In this article, the fourth installment in a series on the initiative to build a Digital Public Library of America, I examine the underlying role of law in the ebook lending debate, explore potential solutions to the problems, and consider how the DPLA can contribute to solutions for those we serve. At the core of this issue is the way the copyright law works–or doesn’t–when it comes to books, libraries, and readers in the United States today and into the future.

“A bit of background on the relevant law helps to set the scene for the tug-of-war. In the United States, copyright law grants to the creators of original works of authorship a bundle of exclusive rights–namely, the ability to legally exclude others from copying, adapting, distributing, displaying, and performing their creations. Should an individual (or a library, for that matter) make use of a copyrighted work in a manner that implicates one of these rights, an exception to the law must apply; otherwise, the copyright owner may be able to make a successful claim for infringement.

“Before e-readers and ebooks began their recent rise to popularity, libraries could acquire, lend, and preserve most in-copyright printed materials with relative ease–so long as they had the budget and space in their stacks. For instance, libraries could easily add print materials into their collections that came in as donations (though, as any acquisitions librarian knows, donations are most often a mixed bag). Libraries can also make a limited number of digital copies of printed texts for purposes of non-commercial lending and archiving, which helps to ensure books that are badly damaged or no longer sold commercially are not lost to the public. Limitations in the Copyright Act enable these acts by libraries. Some of the elements of the law are omnibus in nature–meaning they apply to everyone–and some of these provisions apply specifically to libraries.

“FIRST SALE

“One of the limitations within copyright law that makes book lending (and second-hand book sales) easy in the analog era is called the “first sale doctrine.”  Established in a landmark Supreme Court case in 1908 and formally codified in the Copyright Act in 1909, the first sale doctrine limits the copyright holder’s right to distribution in a way that applies to everyone, not just libraries. The first sale doctrinestates that the owner of a copy of a copyrighted work “is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy.”  In plain English: copyright law only affords to the creator control of the first sale or distribution of a material copy of a work. Once a copy has been sold, the copyright owner can no longer stop that copy from being resold, lent, rented, or otherwise transferred to others. (Other rights still attach; for instance, the new owner of the book does not have the right to make a movie based on the book, which would violate another of the exclusive rights still held by the copyright holder.)

“The first sale doctrine is the cornerstone that made possible secondary markets for copyrighted materials at video rental stores, used book and music stores, and libraries. In conjunction with other limitations in the Copyright Act, including fair use and other library-specific exceptions, first sale enables libraries to build collections through donations, lend works to patrons, participate in interlibrary loan arrangements, and archive and preserve works for the benefit of future generations–all at minimal cost and without requiring authorization from copyright owners. As the ALA website puts it, “Quite simply, first sale is what allows libraries to do what we do–lend books and materials to our patrons, the public.”

“The introduction of digital materials, particularly ebooks, has made things much more complex when it comes to libraries and lending. As we have seen in other content industries, the shift from print to digital has disrupted the publishing industry, forcing publishers to adapt to a host of new media quickly. This transition is no small feat, considering that this is an industry that has relied on the same basic models for centuries. The shift has highlighted the limitations of the Copyright Act in United States law, which was designed to apply in a world in which knowledge was recorded, and then “fixed” (a key term in the copyright statute) in tangible, physical media. Much to the consternation of libraries and those they serve, these changes have caused publishers to rethink business and legal structures regarding how, if at all, they make available works for library lending.

“DIGITAL DIFFERENCE

“Print works are conventionally sold or donated to libraries. Invoking the first sale doctrine and other provisions under the law, libraries could lend their legally-purchased print copies to patrons, to other libraries, and to the patrons of other libraries (think of the extremely effective interlibrary loan systems that link libraries, and their patrons, to one another). Digital works, in contrast, are typically licensed, not sold, to libraries and consumers. Licenses take the form of enforceable contracts, in which permissions are granted to do or use something that otherwise would be the exclusive right of a property owner. The licenses offered by publishers to readers (or libraries) often contain additional terms and conditions that govern the scope and nature of the permission being granted. Should the terms be violated, the licensee might not only lose the legal right to possess the work, but also the licensor can seek recourse in court for a breach of contract. These licenses add restrictions on what can be done with the works that do not exist under copyright law. This is not a new problem; those who worry about copyrights have been arguing over this issue for thirty years, in the context of software and other forms of intellectual property. Libraries are the most recent case of acquirers who are becoming renters, not owners, of digital materials.

“For libraries, the distinction between a license and a sale–the difference between renting and owning a copy–is critical. In the case of a digital book, the copyright holder maintains a stricter form of “ownership” of a licensed copy–and much more control over what can be done with it–than in the case of an old-fashioned, analog book. Put another way, there has been no transposition of the first sale doctrine into the digital sphere. As a result, the first sale doctrine does not apply to licensed copies. By definition, a digital book or sound recording or image is not owned by the licensee. Libraries do not own their copies of ebooks, at least not in the same sense they own their copies of printed books. The ability of libraries to provide their patrons with access to an ebook is conditional upon their ability to adhere to the license terms.

“Libraries are consistently encountering license terms that prohibit or restrict their ability to provide core services to patrons. These restrictions mean that libraries worry that they cannot make copies of works for archival and format preservation purposes. Librarians worry that they cannot participate in interlibrary loan programs using digital works, or even print pages under some licenses. Some ebook licenses expire after an ebook reaches a specified number of circulations, requiring the library to repurchase a costly license–plainly a less-good arrangement for a library than being able to buy a copy of a book outright. Where the license terms leave off, file formats can pick up with technological protections, which govern–in the technical sense–how a work may be accessed and used through software and hardware. Although it is technically possible to overcome these technological measures (known as Digital Rights Management), amendments to the Copyright Act in 1998 make unlawful the circumvention of such technological controls.”

READ THE FULL ARTICLE: From John Palfrey’s article for the Library Journal’s The Digital Shift, Why We Miss the First Sale Doctrine in Digital Libraries

Palfrey is President of the DPLA Board of Directors, and will be serving as a periodic columnist for Library Journal to discuss the “issues surrounding the efforts to launch and expand the Digital Public Library of America.”