An American Tragedy: E-Books, Licenses, and the End of Public Lending Libraries?

Article excerpt

I. CATCH-22: INTRODUCTION .......... 616

II. THE AGE OF INNOCENCE: BACKGROUND ON LIBRARIES, FIRST SALE, AND E-BOOKS .......... 618

A. The Heart of the Matter: First Sale as the Basis for Library Lending .......... 618

1. The First Sale Doctrine as a Limit on Copyright .......... 619

2. Library Use of The First Sale Doctrine to Provide "Free" Lending .......... 620

B. Brave New World: The Rise of E-Books .......... 622

1. History of E-Books and E-Readers .......... 622

2. Legal Interpretations of E-Books .......... 625

III. PARADE'S END: APPLYING THE FIRST SALE DOCTRINE TO E-BOOK LENDING .......... 626

IV. THE SOUND AND THE FURY: PROPOSED SOLUTIONS .......... 629

A. Animal Farm: Digital First Sale Legislation .......... 629

B. The Good Soldier: The Librarian of Congress and DMCA Anticircumvention Rulemaking .......... 634

C. All the King's Men: Proposed Judicial Solutions .......... 636

1. Judicial License Preemption .......... 636

2. Copyright Exhaustion in the Digital Age .... 638

V. DELIVERANCE: ALLOWING THE PARTIES TO SUCCEED .......... 640

VI. FROM HERE TO ETERNITY: CONCLUSION .......... 644

I. CATCH-221: INTRODUCTION

A Wired magazine blog declared e-books2 "killed by DRM" in April 2007.3 In May 2011, Amazon announced that e-book sales had overtaken physical-book sales on their retail website.4 Digital rights management ("DRM') notwithstanding, trends show that the e-book revolution is underway, and adoption and use of this technology is only increasing.5

The ascent of e-books raises many copyright issues both old and new, and the role of libraries in e-book lending is an important one for many librarians and readers. Libraries are an important part of a democratic society, and changes to the publishing and copyright landscape invariably affect the functions and use of libraries. Libraries have traditionally relied on the doctrine of first sale to lend physical books.6 The first sale doctrine allows the owner of a copyrighted work to sell, lend, or otherwise dispose of the owned copy of that work without authorization of the copyright holder.7 Libraries own physical copies of books and lend them without violating U.S. copyright law. However, the limitations of the first sale doctrine require ownership,8 and as contractual license agreements between publishers, distributors, and customers replace ownership as the dominant distribution model in the e-book realm,9 the continued viability of the first sale model for libraries - and therefore public lending libraries themselves - could be in jeopardy. This Note addresses how public lending libraries can retain their traditional role in a literary world dominated by e-books.

Legal and library scholars as well as lawyers and librarians have proposed several possible solutions to the problem of applying the first sale doctrine to e-books. Libraries do not exist in a vacuum and must rely on other entities in order to fulfill their societal role. Interested parties include authors, publishers, distributors, consumers, and government. Many inherently look to the source of copyright to answer how to apply the first sale doctrine to e-books. In the United States, modern copyright is almost entirely a creation of federal statute, with courts playing an important role in interpreting the statute. Because of this, many proposed solutions rely on intervention from Congress, the courts, or the regulatory system. Proposals that have been made include congressional amendment of copyright law to allow library e-book lending by eliminating copyrightor contract-based restrictions, library exemptions from what would otherwise be copyright infringement through regulatory rulemaking, and the intervention of courts through rulings that interpret copyright law in a manner more favorable to library e-book lending.

Unfortunately, these proposals are flawed and either fail to fully address the problem of library e-book lending or threaten to shift the balance of copyright too far toward libraries and consumers at the expense of authors and publishers. …