The law treats electronic books and their printed counterparts differently when it comes to what you can do with them. (article from New York Times, 10 May 2018)
From the ALA Library Blog
Q. Our local library, like so many others, now offers ebooks for loan. Their inventory is not as great as I would like. I’d like to be able donate ebooks I have purchased, just as I would donate paper copies of books I no longer wish to own, but I’m told this isn’t possible. Could you explain the difference to me and let me know if there is legislation in the works that can correct this seemingly unfair disparity?
A. This question, which came to us in several different forms this past week touches on a number of issues related to digital content management. We asked Carrie Russell, our colleague in ALA’s Washington Office, for assistance.
Here’s what she said:
Ebooks cannot be donated because their use is governed by contract rather than the copyright law. Under the copyright law, there are exceptions that allow a user to exercise a right of copyright under certain circumstances. One of the exclusive rights of copyright is the “right to distribute.” But first sale says that once a person lawfully acquires a work that person has the right to distribute that particular copy anyway that he wants. So libraries can lend the books that they purchase, and you can donate books to the library.
With ebooks, the contract defines what you can or cannot do with a work. In general, contracts for ebooks you acquire – from iBooks, for example –have a non-negotiable license linked to the work. This is when you click on an “I agree to these terms” button. You are bound by the contract. If you read the contract, generally you will see terms that restrict what you can do. “Non-commercial personal use only” is the kind of language that prevents you from donating. If you violate the contract terms, you violate the license agreement, not copyright law.
Sometimes the contract is enforced by digital rights management that prevents you from transferring the ebook file to another person or library. A tech savvy person can circumvent this technology, but it is generally effective.
As for legislation, there is none. The U.S. Copyright Office did a study on digital first sale some years ago – The Digital Millennium Copyright Act Study. The Copyright Office said there is no such thing as digital first sale.
Interestingly, there is a Supreme Court case – Kirtsaeng v. John Wiley & Sons, Inc. – about first sale (not digital). Most people believe that there will be a need to tweak the copyright law around first sale.
Since contract law is a state law, you could reach out to your state legislators. They will likely be unfamiliar with the entire issue but you could give it a shot.
Because of the importance of make digital content available in libraries of all types, ALA has appointed the Digital Content and Libraries Working Group. Its work, along with additional resources of all kinds, may be found on the Ebooks & Digital Content part of the ALA site.
On October 28, 1998, H.R. 2281, the Digital Millennium Copyright Act ("DMCA"), was enacted into law. Section 104 of the DMCA directs the Register of Copyrights and the Assistant Secretary of Commerce for Communications and Information to prepare a report for the Congress examining the effects of the amendments made by title 1 of the Digital Millennium Copyright Act, ("DMCA") and the development of electronic commerce on the operation of sections 109 and 117 of title 17, United States Code, and the relationship between existing and emerging technology and the operation of such sections.
As libraries struggle to meet the challenges of providing digital content in an environment characterized by significant uncertainty and changing on a daily basis, there is a need for an Association-wide group of experts, broadly representative of the many constituencies within the library community, that can proactively address these digital content opportunities and issues at the highest level and from both a policy and practical perspective.
Unglue.it is a place for individuals and institutions to join together to make ebooks free to the world. We work together to support authors, publishers, or other rights holders who want their ebooks to be free. We support Creative Commons licensing as an enabling tool to "unglue" the ebooks.