(by Peter Hirtle)
A recent post at the Citizen Media Law Project about one’s First Sale rights with e-books got me thinking about libraries. CMLP noted that with e-books, one has no first sale rights because they are usually governed by licenses instead. First sale, however, is fundamental to the business of libraries. It allows us to loan to others copies of printed books we have purchased without violating the copyright owner’s rights to distribute the work. Some libraries have started lending e-book readers to faculty and students, including the Lewis Music Library at MIT and the NCSU Library, which are both loaning iPads. Is this legal?
An argument can be made that lending the physical device is also the loan of the software, which is prohibited by the license. This interpretation is supported by the only explicit exemption to the prohibition against redistribution: namely, your ability to transfer the software to someone else when you transfer ownership of the iPad.
It is not just the iPad that has a license, however. Every app on the platform and any purchased e-book is also likely to come with a license that would prevent lending of the content. The Kindle license agreement, for example, stipulates that you may “keep a permanent copy of the applicable Digital Content and to view, use, and display such Digital Content an unlimited number of times, solely on the Device or as authorized by Amazon as part of the Service and solely for your personal, non-commercial use.” (emphasis mine) A library purchasing a Kindle book for lending purposes is not making personal use of that title, even if the use is non-commercial.
Under the standard terms of the agreement, it would seem to this non-lawyer that a library could no more lend an iPad with a Kindle book on it than it could lend Netflix movies to patrons. Maybe one could argue that all the library is doing is lending computer programs, which is permitted under Section 102(2), provided that the proper warning notices are included on the device itself. But while this might apply to the iPad software, I am not sure that I would want to argue that an iBook or Kindle book is also a computer program: “a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.” Furthermore, licenses usually take precedence over any rights available in the law.
I hope, therefore, that libraries that are experimenting with lending e-book readers have thoroughly vetted their program with an attorney. Mostly, I hope they are working with Apple, Amazon, etc. to create new library-friendly licenses. We need licenses that will allow libraries to purchase e-books that can then either be copied directly onto patron-owned devices or copied onto library devices that are then lent to patrons. If e-books become as important as people predict and libraries do not have the legal right to lend those e-books, the traditional role of the library as a free source of reading matter will fade away.
Photo credit: “Library staff circulate iPads to students,” http://www.flickr.com/photos/surlygirly/4505485398/in/set-72157623814845910. © 2010 Mary Carmen6676. Used here under an assertion of fair use.