Cover of The Librarian's Legal Companion for Licensing Information Resources and Services, by Tomas A. Lipinski, available from the ALA Store.
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 Section 104 study. The Copyright Office said there is no such thing as digital first sale.
Interestingly, there is an upcoming Supreme Court case – Kirtsaeng v. John Wiley & Sons, Inc. – about first sale (not digital). Most people believe that, regardless of the Court’s decision, there will be a need to tweak the copyright law around first sale. It is possible that digital first sale may be discussed – I doubt it, but who knows.
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.
For general information on donations of more traditional materials, please see ALA Library Fact Sheet 12: Sending Books to Needy Libraries; Book Donations.