My cousin Katie asked if libraries could loan loaded ebook readers. For example, one device could have romances, another could have science fiction. Here are my thoughts. I'd appreciate any coments.
Let's divide the question into four scenarios. Let's start with an unloaded device and work our way up.
1 - The device is empty. The only copyrighted content is the code itself that the device uses to display ebooks.
The First Sale doctrine, at 17 U.S.C. Sect. 109 allows the library to lend this empty ereader. Even if the ereader company has software license terms that restrict loans, the First Sale doctrine should override such restrictions.
Fine print: Software is treated as a special case under First Sale. That is, although First Sale allows an individual who has an authorized copy of copyrighted content to lend, sell, or otherwise dispose of the copies, the law makes an exception that makes it possible to license computer programs. 17 U.S.C. 109(b)(1)(A). See also Vernor v Autodesk. Fortunately, 109(b)(1)(B) clarifies that if the computer program is embodied in a machine and cannot be copied during the ordinary operation of the machine, it is still governed by First Sale.
2- The device is loaded with public domain content and/or content with permission to lend (such as creative commons licensed content).
The First Sale allows the library to lend this ereader with public domain content and/or creative commons (or similar) content. There are no additional copyright restrictions that reach beyond Scenario 1. It is possible that the library has agreed to more restrictive licensing terms that someone may have placed on such content, although that is unlikely. The library should be sure to use a source that has not required the library to agree to any additional restrictions.
3- The device is loaded with ebooks licensed from a vendor such as Amazon. The license may allow a limited number of copies such as five or six.
The library may loan the ereader loaded with ebooks by following the terms of the license.
4- The device has unauthorized content.
The library should not loan an ereader under these circumstances, and should delete the content in question. Even if the library is not responsible for the unauthorized content, it could be responsible for the distribution of that content. See Hotaling v Church of Jesus Christ of Latter Day Saints (4th Cir. 1997) at http://caselaw.findlaw.com/us-4th-circuit/1057784.html