Amazon’s Refusal To Let Libraries Lend Ebooks Shows Why Controlled Digital Lending Is So Important | Techdirt

The Washington Post tech columnist Geoffrey Fowler recently had a very interesting article about how Amazon won’t allow the ebooks it publishes to be lent out from libraries. As someone who regularly borrows ebooks from my local libraries, I find this disappointing — especially since, as Fowler notes, Amazon really is the company that made ebooks popular. But, when it comes to libraries, Amazon won’t let libraries lend those ebooks out:

When authors sign up with a publisher, it decides how to distribute their work. With other big publishers, selling e-books and audiobooks to libraries is part of the mix — that’s why you’re able to digitally check out bestsellers like Barack Obama’s “A Promised Land.” Amazon is the only big publisher that flat-out blocks library digital collections. Search your local library’s website, and you won’t find recent e-books by Amazon authors Kaling, Dean Koontz or Dr. Ruth Westheimer. Nor will you find downloadable audiobooks for Trevor Noah’s “Born a Crime,” Andy Weir’s “The Martian” and Michael Pollan’s “Caffeine.”

I’ve seen a lot of people responding to this article with anger towards Amazon, which is understandable. I do hope Amazon changes this policy. But there’s a much bigger culprit here: our broken copyright laws. In the physical world, this kind of thing isn’t a problem. If a library wants to lend out a book, it doesn’t need the publisher’s permission. It can just buy a copy and start lending it out. Fowler’s correct that a publisher does get to decide how it wants to distribute a work, but with physical books, there’s the important first sale doctrine, which lets anyone who buys a book go on and resell it. And that meant that in the past, libraries have never needed “permission” to lend out a book. They just needed to buy it.

Unfortunately, courts seem to take a dim view of the first sale doctrine when it comes to digital goods.

Claremont School of Theology Donates 250,000 Books to the Open Library – Cal

“Claremont School of Theology has donated about 250,000 religious studies volumes to the Internet Archive to be placed in their Open Library for “controlled digital lending.” These volumes include many very important and very recent resources in the field. … Look for these books to begin appearing the Open Library beginning around Jan. 1. The digitization of the entire collection is scheduling to take place within the next two years. CST has made this donation as it relocates to Salem, OR to embed within Willamette University. The CST board approved this donation in large measure to increase global access to religious studies scholarship….

If libraries wish to be even more radical in their stand of solidarity with the Open Library and their commitment to Controlled Digital Lending, cease licensing ebooks altogether going forward. Despite the deceptive marketing of ebooks, libraries never actually buy or purchase them anyway. Licenses give a fraction of the rights available to libraries under First Sale. The more libraries have shifted to ebook licensing, the more voluminous the bleeding of paying more and more money for less and less rights. Going forward, only buy print books, and partner with the Open Library to ensure they are digitized and that the digital analogs of each print book are made available to the global public. Only in this way can libraries continue to obtain and exercise their full bundle of First Sale rights.”

Who’s Afraid of the National Emergency Library? – The Captured Economy

“Over the past month, we have seen considerable outrage and excitement over the Internet Archive’s National Emergency Library, an online source of 1.4 million books that are free to borrow with no waiting list.

Chairman of the Senate Intellectual Property Subcommittee Thom Tillis (R-NC) sent a letter to Brewster Khale, founder of the Internet Archive (IA), expressing his concern that the National Emergency Library (NEL) is acting outside the boundaries of copyright law, noting that he is unaware “of any measure…that permits a user of copyrighted works to unilaterally create an emergency copyright act.”

Given the legal, economic, and societal implications of the NEL, it’s worth taking the time to address some of the criticisms of this project. In general, while the NEL’s legal status is unclear (even more so than the open library that came before it), it is a necessary balance against the closure of brick-and-mortar libraries around the country, with uncertain costs to artists and clear public health benefits….

The strongest case against the NEL is that by providing books for free, it deprives rights holders (a group that includes publishers, not just authors) revenue they expected. This has been melodramatically equated with looting after a hurricane, but that just isn’t the case. The nonrivalrous nature of ideal objects makes it such that the consumption by one doesn’t prevent another from doing the same. This is a false equivalence, plain and simple, and those who use this analogy do not deserve the moral high ground they seek.

The category error in the treatment of ideal objects as property, however, does not invalidate the need for copyrights and patents. The potential for free-riding to deter investment in the production of creative works is real (though overstated), and requires some form of government intervention to address.

At the same time, not every act of infringement equates to a loss to the rights holder (who is in many cases not the author). If the goal of NEL’s critics is to protect the ability of artists to earn a livelihood, it is a noble one, but also does not require an unqualified condemnation of NEL….”


Libraries Do Not Need Permission To Lend Books: Fair Use, First Sale, and the Fallacy of Licensing Culture | Kyle K. Courtney

“Licensing culture is out of control. This has never been clearer than during this time when hundreds of millions of books and media that were purchased by libraries, archives, and other cultural intuitions have become inaccessible due to COVID-19 closures or, worse, are closed off further by restrictive licensing.

And, many of us have watched as librarians, educators, parents, and students have questioned (and battled) over to right to read books aloud online to schoolchildren or to stream movies or music for our new online “classroom” environment. We have also heard about resistance to emergency or temporary digital libraries to increase access to the materials needed for education and research during this pandemic….”

The Internet Archive’s Copyright Emergency | Copyright and Technology

“Sometime last year, I was chatting about digital first sale and e-lending with a highly respected copyright lawyer, someone who is deeply knowledgeable about those issues. We were talking about the library community’s longstanding attempts to get a lending right for digital files in law. We noted that those folks have apparently given up on the idea of getting such a right through legislation and are instead talking about the idea of pressing a fair use argument through litigation. This would require a long, expensive battle, potentially all the way to the Supreme Court. I expressed skepticism that anyone would have both the deep pockets and institutional motivation to pursue this strategy. The lawyer replied that there is one person who could and might do it: Brewster Kahle.

Brewster Kahle is, of course, the founder of the Internet Archive, and a pioneer in search engine technology. I am a big fan of the Internet Archive. It is indispensable to me in my work. It is a tribute to the ingenuity of engineers who have figured out how to build something like this on a system that was emphatically not designed to support it; it’s one of a very few technologies that I consider darn close to magic. I donate (modestly) to it every year. So it’s unfortunate that the Archive’s latest move, to loosen copyright law by establishing a “National Emergency Library” during the COVID-19 crisis, appears to be backfiring….”

EU High Court Rules Against Digital Resale; We’ll Talk About This at the Conference | Copyright and Technology

“This week the Court of Justice of the European Union (CJEU) issued a landmark ruling that digitally downloaded files are not subject to exhaustion (the EU equivalent of first sale in U.S. law). This means that consumers don’t have the right to resell (or give away, lend, or rent) ebooks and other digital files. This ruling brings EU law into line with the U.S. precedent established by the Second Circuit Appeals Court in the ReDigi case a year ago….”