LETTING PUBLIC LIBRARIES DOWN:
The Recent Copyright Office Report Misses A Chance To Support A Digital First Sale Doctrine For Libraries

By JULIE HILDEN


julhil@aol.com
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Thursday, Sep. 06, 2001

The federal government's Copyright Office recently released a report on several issues relating to the Digital Millenium Copyright Act, on which Congress had asked for its opinion. One of the most important questions the report addressed was, in the words of the Copyright Office, "whether to expand the first sale doctrine to permit digital transmissions of lawfully made copies of works."

The "first sale" doctrine is what allows a book purchaser to lend a book she has bought and enjoyed to family and friends, without fear of a lawsuit from the author or publisher. It also lets used bookstores, such as Amazon.com's Z-shops, capture all the gain from the sales of used books, without having to share it with authors or publishers. Finally, it enables libraries to freely lend out books to anyone with a library card, again without making any payment to the author or publisher beyond the price of the book's initial purchase.

The Copyright Office punted on this issue by refusing to opine as to whether there should be a digital equivalent of the first sale doctrine. Its decision was cowardly. Without a strong endorsement of some kind of a first sale doctrine for e-books, public libraries may be seriously hurt in the future.

The Need for "First Sale" for Libraries

For most people, it's far more convenient to visit a neighborhood Barnes & Noble or order a book from Amazon.com, than to visit a neighborhood library — which has limited hours and usually carries just a few copies of the most in-demand books, making it necessary for borrowers to place their names on long waiting lists. Yet many people use libraries anyway, suggesting that they would rather borrow books than spend the money to buy them — perhaps because they can't afford to. Libraries and the first sale doctrine make it possible for them to read the books for free.

Should the first sale doctrine be carried over to the digital world? To some extent, one's answer to this question depends on what one identifies as the basic purpose of the doctrine.

Some believe the doctrine is meant to allow book-sharing communities, and therefore, it should support software that allows a reader to forward an e-book to someone else, as long as he deletes it on his own computer at the same time. Yet others believe the doctrine should only apply to tangible property, such as a book; they believe that once such property is purchased, new owners should have sole control over how they dispose of it. Those who take this view see no reason, however, to extend the first sale doctrine to less tangible property, such as an e-book.

Ultimately, though, one point is beyond debate: The first sale doctrine has acted as an important, large subsidy for public libraries — a very worthwhile cause. Conversely, deciding not to apply the "first sale" doctrine in the e-book world is going to limit that important subsidy in the future, as more books are published in this format. Respecting the spirit of the first sale doctrine would require that subsidy to be preserved somehow.

If libraries do not benefit from some version of a digital "first sale" doctrine, and must pay full price each time a reader "borrows" an e-book, it will be those readers with less money who will suffer. Graduate students and other researchers who need to take notes on hundreds of volumes to complete their scholarly work will predictably be hurt. So will those children who are voracious readers, consuming the children's sections of their school and local libraries, but do not have wealthy parents who can easily support their reading hobby.

Conflating the Issue of E-Book Protection with the Issue of Library Use

One reason the library lending of e-books may seem particularly terrifying to copyright holders is that it appears to touch on a more fundamental question: Can e-books ever be protected from being converted into numerous, free copies?

This question is at the heart of the recent prosecution of Dmitry Sklyarov, a Russian programmer whose company sold software able to lift restrictions on Adobe's e-Book Reader. (I addressed the Sklyarov case in an earlier column; it has also been discussed on this site by Anupam Chander and Laura Hodes.) But the e-book protection question does not have to be at the heart of the controversy over whether libraries should benefit from some version of "first sale." Rather, these two issues can and should be neatly separated.

In truth, there is no conflict between e-book-protecting software and the spirit of "first sale" — at least as far as libraries are concerned. Assume, for example, that e-books can only be protected if they are distributed using self-destructing software that allows only one reading (and no forwarding to other readers) before the e-book disappears. Such software might seem to inherently conflict with the first sale doctrine — which contemplates a single, paid use followed not by self-destruction, but rather by multiple additional uses, free or paid at the book owner's discretion.

But for libraries, it is the subsidy that "first sale" gives their borrowers that is key. And that worthwhile subsidy could still be satisfied by a statutorily-mandated steep discount for library use when it comes to e-books. Libraries (like other e-book purchasers) could still be required to pay per each reading, but they would pay a lower rate, so that they could still afford to allow their borrowers to read the e-book for free.

Constraints on Libraries as the Price of E-Book "First Sale"

For this system to work fairly, with respect to e-books, the availability of the low rate would have to be conditioned on libraries' continuing to act in the way that they have traditionally acted with respect to regular books. For example, libraries might be required to refrain from Internet e-book distribution. Readers would still have to physically visit the library to benefit from the service of checking out e-books for free, just as they do with regular books.

Fairness to author and publishers would also require a system that prevents all and sundry from using library e-books as a free substitute for e-books sold at an online bookstore. Thus, to receive the benefit of the discounted rate for e-books, libraries might also have to be required to "lend" e-books, as they do regular books, to only a few users at a time — maintaining a limited number of "copies" of the e-books. That would preserve the "waiting list" aspect of libraries, ensuring that those who can afford to do so will buy books, rather than putting their name on the list and waiting, perhaps for months. Granted, if readers want to read the latest John Grisham e-book the day it appears, they will have to get it from Amazon.com, not the library, but that is no different from the current situation.

Of course, the details of how the "first sale" doctrine for libraries should work are debatable. The extent to which e-book protection should yield to "fair use" and "first sale" is debatable, too. But can it truly be debated that those who cannot afford to buy books should continue to have free access to them through our public libraries, whatever their format might be? On this question, at least, we should all agree.


FindLaw columnist Julie Hilden is a freelance writer. A graduate of Yale Law School, she practiced First Amendment law at the D.C. firm of Williams & Connolly from 1996-99. Her memoir, The Bad Daughter, was published by Algonquin Books in 1998, and she is currently working on a novel.

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