The question of first-sale doctrine and ebooks
by Ariel Bogle
Last week, the New York Law School hosted the In Re Books conference, which dealt with the future of books and the law.
Writer Caleb Crain attended, and wrote about what he considered to be the biggest themes of the conference on his blog, Steamboats are Ruining Everything.
Crain reflected that one of the overarching concerns of the conference was how and if s109, the First Sale doctrine, applies to ebooks as it does to print books.
As Crain explains, “the first-sale doctrine is a legal concept that limits the control that copyright affords. Specifically, it limits copyright control to the period before an item under copyright is first sold.” It’s what allows you to lend, re-sell or gift your purchased items.
A vital factor in determining whether the First Sale doctrine may or may not apply to ebooks, is whether you consider a legitimate and paid-for download to be a “purchase”, as required by s109.
At present, the manner in which ebooks are sold online suggests that contract law takes precedence over the doctrine.
“As a contractual matter, e-books are rarely sold…In the fine print, it transpires that what distributors purchase from publishers, and what readers purchase from distributors, are mere licenses. But if courts were to recognize readers of e-books as owners, the courts could grant readers the right to re-sell and a limited right to reproduce what they had purchased.”
The First Sale doctrine emerged in a print-only era, and was confirmed in the United States by the case of Bobbs-Merrill v. Straus (which is further elucidated on Crain’s blog), but has been somewhat untested in a time of digital readers.
The issue was particularly discussed at the conference in relation to libraries — the way that they procure books, and the manner in which they convey them to their customers. As has been much hashed over here on MobyLives, librarians are extremely frustrated with the difficultly of supplying ebooks to their customers, mostly due to the strictures placed on them by publishers. These barriers have been diverse and plentiful — for example, limited number of lends, and “friction”, in that an ebook is artificially kept from being borrowed more than once at a time.
As Crain notes, some academics believe that the First Sale doctrine in fact gives libraries free rein to lend any ebook in any manner, that they’ve rightfully purchased.
Recently, the right of libraries to scan books already in their collection, and digitize them for search purposes, has been confirmed in The Authors Guild v Hathi Trust. The turning point of that case was Fair Use, however, and it did not fully address the First Sale doctrine and its bearing on the facts.
Nevertheless, the judges in that case firmly quashed the Author’s Guild’s argument that the library’s Fair Use exemption prevented them from asserting other potential rights and defenses, including First Sale, which gives libraries an extra route in future law suits.
What is only tangentially mentioned in the article, is the way that Digital Rights Management (DRM), and the manner in which it enforces the aforementioned ebook “licensing” norm, has already undermined the First Sale doctrine. (If you’re a First Sale absolutist, that is.) For the average consumer, if one regards an ebook download as a full purchase, and not simply a “license”, reading on an ereader undermines your legal rights. These devices, and their DRM, prevent you from exercising your right to lend or re-sell.
It is difficult to come down on one side or the other within the industry. Many publishers and writers do sympathize with the overarching theme of copyright law — to reward creators for a limited time, in order to perpetuate knowledge for the public good. But naturally, as Crain concludes, publishers, authors and agents are also worried. As we all know,
“the challenge of bringing e-books into public libraries turns out to be inextricable from the larger problem of how authors will be paid in the digital age. “
Ariel Bogle is a publicist at Melville House.