May a library lend e-book readers?

(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?

While a library can buy an iPad device, it is not much use without software, and that software comes with a license.  According to the iPad Software Agreement posted at ScribD, Apple owns the software on the iPad you purchased.  You are allowed to install that software on a single Apple-branded iPad.  You cannot, however, “rent, lease, lend, sell, redistribute, or sublicense the iPad Software.” (emphasis mine) 

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.

Comments

[Peter Hirtle]

Thanks for the comment! I appreciate the reference to your article, and I look forward to reading it.

Peter

[Gregory K. Laughlin]

I wrote a law review article on the topic of the Amazon license agreement and its impact on library lending of the ebooks. See Digitization and Democracy: The Conflict Between the Amazon Kindle License Agreement and the Role of Libraries in a Free Society, 40 U. Balt. L.Rev. 3 (2010). Amazon has not, the last I checked, partnered with Overdrive or any similar venture to allow lending of ebooks by libraries and has been very opaque on library ebook lending. It seems clear to me that the "purchaser" of Kindle ebooks is not the owner of the content, but merely a licensee. As such, the first sale rights do not apply. By the explicit terms of the standard Kindle license agreement, lending is prohibited.

Ereaders are another matter. While I haven't researched the issue, I can see no legal basis for preventing a library from lending an empty ereader which a patron could then use to load ebooks on or, for that matter, an ereader loaded with public domain ebooks or ebooks for which a license to lend is granted.

[joe grobelny]

Peter, I'm afraid you let fear rule you, and librarians have been called out on this issue hardcore by faculty:

http://mollykleinman.com/2010/11/16/when-librarians-are-obstacles/

[Brent Hanenr]

The lending of actual devises is not likely to become an issue because they exist under the first sale doctrine. Unless you specifically agreed not to lend them then you can.
As for the books or texts themselves I don't think we have legally decided if they are legally like books and therefore would fall under first sale doctrine or are they like software and would fall under the COMPUTER SOFTWARE RENTAL AMENDMENTS ACT OF 1990. Even if they are like software the act creates an explicit exception for non-profit libraries to lend them.

So while you are right that libraries should be aware of such issues they should not be afraid to go forward as their are reasonable protections for them and the public outrage if a publisher went after a public library would be immense.

Libraries should probably go with the Sony readers as the Adobe format capabilities are much more in keeping with library needs and is the file format used by the two main lending services used by libraries, netLibrary and overdrive.

[Ebook]

Ebooks are allowed to be shared but lending them doesn't seem to be a good idea without the actual authorization. This may lead to several issues. The actual content may be altered by lending the article in some cases.

[ffxiv gil]

Just because the book-reading software is open source does not necessarily mean that its license would allow that software to be lent (though I agree that the likelihood that open source software will have user-friendly licenses is much higher). Public domain books may have licenses that prohibit lending them to others. Remember a few years ago how the license would not allow you to read an electronic version of Alice in Wonderland aloud? And if you want to view a license as DRM, then we can say that DRM is at fault.

[Peter Hirtle]

I find it interesting that two of the comments on this posting are about what constitutes fair use of the photo I found on Flickr rather than the substance of the posting itself. I am comfortable with my fair use analysis. Use for news reporting and in the context of analysis is one of the paradigmatic fair uses, and so I think I am fine on the Purpose factor. As for Nature, this is a photo freely available to view on the Internet. If there is copyright in it, I believe it would be at best a "thin" copyright, since the photographer did none of the things that, according to the Supreme Court in the Burrow-Giles case, warranted copyright protection. I would call this factor a tie. As for Amount, I only took a small, thumbnail-like version of the image. The Market Impact of my decision is nil. The only thing the photographer lost was possible licensing revenue (if she was due it, if my use was not fair). If the photograph was from a commercial photo site such as AP runs, my fair use might be less certain. There is no indication that the photographer licenses her photos, however, and an effort to contact her to learn whether she objected to my use has been unsuccessful (which also therefore makes it hard to license).

As I said, I am comfortable with my fair use decision. One can never be sure about fair use, however, so I have decided to follow a safer course. I have replaced the image on the blog with a link to the image in Flickr. It means I lose the ability to caption the image immediately below it, but I am no longer reproducing or distributing the image: Flickr is.

[SouthernLaw]

You are republishing an all-rights-reserved photograph without any effort to contact the owner and ask permission, even though Flickr makes it terribly easy to contact image owners? I believe you are abusing the legal notion of fair use.

[Peter Hirtle]

Scott, I should have included the rest of the section of the iPad agreement relating to transfer because I think that it reinforces my possible interpretation. The full transfer section reads as follows:

3. Transfer. You may not rent, lease, lend, sell, redistribute, or sublicense the iPad Software. You may, however, make a one-time permanent transfer of all of your license rights to the iPad Software to another party in connection with the transfer of ownership of your iPad, provided that: (a) the transfer must include your iPad and all of the iPad Software, including all its component parts, original media, printed materials and this License; (b) you do not retain any copies of the iPad Software, full or partial, including copies stored on a computer or other storage device; and (c) the party receiving the iPad Software reads and agrees to accept the terms and conditions of this License.

So you can give the iPad as a Christmas present. And if a library wanted to give away iPads, it might be able to do that.

I don't really imagine that an individual (or a library) is going to be prosecuted, however, for loaning an iPad with operating software on it. I am more concerned about the standard use restrictions in the books and other apps that can be installed on an iPad - which is why libraries that experimented with lending Kindles by and large negotiated different licenses with Amazon.

[Scott Hanley]

You cannot, however, “rent, lease, lend, sell, *redistribute*, or sublicense the iPad Software.”

If you want to get that particular, then any iPads given as Christmas gifts would seem to violate those terms. Implications like that are why I don't expect a court to ever hold that loaning a device is the same as redistributing its software.

[Peter Hirtle]

The solution for a library that wants to lend e-book readers is to use a device that has an license that would allow it to do so. Just because the book-reading software is open source does not necessarily mean that its license would allow that software to be lent (though I agree that the likelihood that open source software will have user-friendly licenses is much higher). Public domain books may have licenses that prohibit lending them to others. Remember a few years ago how the license would not allow you to read an electronic version of Alice in Wonderland aloud? And if you want to view a license as DRM, then we can say that DRM is at fault. But just getting a reader without technological protection measures (TPMs) is not enough - the license is the key issue.

I focused on the Kindle and iPad because they are driving many library experiments. Most of the libraries that lent Kindles realized that the standard Kindle agreement wouldn't work and negotiated new agreements with Amazon and the publishers. The same will need to happen with iPads - unless libraries limit themselves to unlicensed applications and content.

[Robert Quentin Hyde]

What about Ebooks that are out of copyright or issued with a Creative commons licence? Why not use an Ebook reader that uses "open source" software or permits lending of devices freely amongst library patrons? I have a BeBook reader whist I bought from Belgium that can read many different formats which are not restricted by digital rights management. As a librarian I feel that the rights implied under Fair use and the concept of first sale rights for libraries should be broadly interpreted.

[Peter Hirtle]

Prof. Crockerberry illustrates why I recommended that anyone interested in lending e-book readers check with their legal counsel as to whether the standard license terms need to be negotiated. Perhaps counsel would argue that a library is a "person" (though I have my doubts). Of course, I would never have believed that corporations are people for the purposes of the 1st Amendment, either.

And Colleen, the neat thing about fair use rights is that an author cannot trump them even with an "all rights reserved" assertion. If authors could stipulate that fair uses of their works could not be made, then fair use would not be very useful. All the author can reserve are the rights that he or she owns, and forbidding fair uses is not one of the author's rights.

[Colleen]

In the spirit of discussion of use and the rules regarding use, I find it interesting that you just "fair use"-d a clearly noted all-rights-reserved photo. :)

[Prof. Crockerberry]

You say, "a library purchasing a Kindle book for lending purposes is not making personal use of that title." I would say, if a corporation is a person for purposes of First Amendment protections, then why isn't a library a person for purposes of making personal use, when lending is its core purpose?