The Bodleian Library declaration to which all readers must subscribe states that they must not “kindle therein.” When the regulation was first written the concern was fire and its prevention. Kindles and other ebook readers in libraries are today just as hot a topic, and potentially as dangerous.
| 
| Kindle in my library, by MARUYAMA Takahirofrom. From Flickr. CC-BY-NC-SA |
Thanks to a welcome comment on an earlier post, my attention was drawn to the latest statement of the problem. Gregory K. Laughlin has made an important contribution to the debate with his article entitled “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. (Unfortunately, I can’t find a freely-accessible version of the article in SSRN or in an institutional repository, and the University of Baltimore Law Review’s home page does not have the contents of volume 40 posted yet.)
In the essay, Laughlin extols the historical importance of libraries in American democracy, notes the growing importance of ebooks in publishing, and observes that the restrictions in the Kindle license conflict with the long-established practice of libraries lending books to patrons. He reviews much of the recent case law concerning what constitutes ownership of digital data, and concludes that courts are likely “to conclude that ‘purchasers’ of e-books from Amazon are not the owners of the content and, therefore, cannot rely on Section 109 of the Copyright Act to convey ownership or even possession of such content to a third party without Amazon’s consent.” This is in spite of the fact that Amazon frequently indicates that one is purchasing Kindle content with labels such as “buy now.” Laughlin surmises that “one would expect courts to hold professional librarians to a higher level of sophistication and not permit them to claim that the ‘buy’ and ‘sell’ language on the site represented a change in ownership when the license agreement itself gives ample evidence to the contrary.” Laughlin concludes that “The only way to guarantee that libraries will be permitted to lend e-books to their patrons is for Congress to amend the Copyright Act to explicitly provide such a right and to make it inalienable (that is, one which cannot be contracted away).”
There is a lot to think about in Laughlin’s essay, but I have two immediate reactions;
1. I do not see legislative change as being a practical option. The Section 108 Task Force could not come to agreement over whether the library and archive exceptions should be able to trump contrary terms in non-negotiated license agreements, which are currently enforced through Section 108(f)(4); I don’t see Congress as being less respectful of corporate interests. The example of Overdrive may be particularly problematic. Overdrive is proving that libraries can license and deliver books to patrons without acquiring the titles and without using Section 109 (the “first sale” doctrine). If Amazon were to offer its titles through Overdrive or a similar service, the need for libraries to own digital books that could be lent is greatly reduced. The problem, of course, is that there are other reasons than just circulation for libraries to “own” digital books, as Laughlin points out. It may be that libraries’ ready acceptance of the Overdrive model may end up hurting them in the long run.
2. Laughlin’s piece made me think about what libraries really mean when they say the want to lend Kindles and other ebook readers. I see at least four options, with various risks associated with each approach:
A. One approach would be to purchase an ebook reading device (say a Kindle) and an ebook to go on that device and then lend the package to patrons. While a technical violation of the purchase agreement for the ebook and possibly a violation of the license terms for the software on the device, it is hard to believe that Amazon or a publisher would bring an action against a library for this behavior. It is, however, an expensive way for a library to acquire content!
B. A second approach would be to purchase one ebook and load it on multiple devices. Currently Amazon allows 6 Kindles to be registered to one account, so in theory a library could purchase a single book and load it on 6 devices for loaning. However, this clear violation of the license terms is more likely to lead to a lawsuit of complaint. And buying multiple Kindles would still be more expensive than buying hardcover printed books.
C. A library could “buy” (in reality, license) a book that could be loaded onto a patron’s device for a limited period of time. This is the Overdrive model; it also seems to be what Laughlin would like to see Congress authorize. While legal, it does not take advantage of the trivial cost of reproducing digital content. With this model, one digital file can be used by one patron. If you want a second patron to be able to read the book, you have to “purchase” a second copy, often at full-price.
D. What I suspect most libraries would like is to be able to actually purchase an ebook, have a copy of it on a local server (the equivalent of a shelf in the local library), and then allow an unlimited number of patrons to check out the title. I don’t see this ever happening.
