First Sale doctrine in the age of licenses

One of the ways I keep up to date with news pertaining to the library world is through Library Link of the Day, which is exactly what it sounds like. The link is usually to an article or blog post, sometimes a video or a longer document. On February 5, the link was to an article from the February 2014 edition of College & Research Libraries News, “Last sale? Libraries’ rights in the digital age,” by Jennifer Jenkins.

For those who aren’t clear on what “first sale” means, or those who are familiar with it but haven’t kept up with some of the more recent cases (Capitol Records v. ReDigi, for example), this article gives an excellent explanation of the history of first sale, the problems with applying it to the digital realm (where much content is licensed rather than sold/owned), and the possibilities for the future.

Jenkins covers all the points I’ve seen in other articles and blog posts thus far (Copyfight is one good source to follow, if this is an issue that interests you, and it should). The only piece I have to add is a response to the Copyright Office’s statement that “[p]hysical copies degrade with time and use; digital information does not…” While this is true in some sense, it’s false in another: digital formats change so quickly that it takes a significant investment to keep digital information accessible. (Word Perfect, anyone? Floppy disks?)

Technology changes quickly; content creators (e.g. publishers, the music industry, etc.) will adopt new formats and abandon* old ones, and those who “own” (or license) information in those formats will be up a creek unless they have the ability (and time, and money) to upgrade or migrate old formats to new ones.

Digital Rights Management (DRM) throws an additional monkey wrench into the mix. DRM, Jenkins writes, “adds a layer of technological controls that further restrain libraries’ freedoms.” Currently, the first sale doctrine applies only to physical items; digital items aren’t covered by first sale (yet). Libraries, like consumers, pay to license these items (e-books, digital audiobooks) instead of buying and owning them. Jenkins explains, “These licenses restrict libraries’ uses of e-books. If a library has a physical book, it can loan it out as many times as it is requested. It can send the book to another institution via interlibrary loan. Licenses often limit these activities.”

Digital first sale is important to libraries. Demand for e-books is growing, yet restrictive licenses mean that libraries are not always allowed to purchase e-books and lend them out in the same way as physical books. Publishers are experimenting with different models: higher prices for libraries, or prices comparable to consumer prices but with some kind of catch (a 26-loan limit, or a one-year expiration date), or simultaneous use (in rare cases). Right now, the publishers have more power than the libraries (or the consumers, who click “I Agree” to any Terms of Service to get content). Jenkins writes, “Many librarians are concerned that digital technology has upset the balance between users’ and owners’ rights.”

In writing about the ReDigi case, Jenkins stated, “Studies have shown that the effective way to drive down rates of illicit copying is to provide cheap and legal alternatives. Digital first sale could lead would-be downloaders to turn to a legal second-hand market.” Libraries, too, should be able to offer a legal alternative. Jenkins suggests that Congress could grant libraries specific rights “allowing them to lend, preserve, and archive electronic materials.” Makes sense to me.

*As Adobe is about to do by introducing new EPUB DRM this summer.

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