Libraries and Copyright: Why can we check out library books?

Given the huge controversy about our archaic and convoluted copyright system in the United States, why can we still check out books in our local public and private libraries? First of all, we need to understand that U.S. Copyright Law is mired in 18th Century technology. The concept of imposing limitations on the reproduction of an original work and reserving those rights to the "author" is contained in the U.S. Constitution, however, the Constitutional law has now been extended to a degree never imagined by its originators. The main factor that was well beyond the scope of the original copyright law is the involvement of publishers who essentially control the distribution and sale of authored works and thereby benefit from the publication and only share a relatively small portion of the benefits with the author. Copyrights are property interests and are bought, sold, and rented just like any other item of personal property.

So why can I go to my local public library and check out a book that is still covered by the provisions of copyright law? Further, why are only some "libraries" covered by this exception, if there is one?

The "exception" is called "The First Sale Doctrine." Here is a short explanation of the Doctrine from the American Library Association article, "Copyright for Libraries: First Sale Doctrine."

The “first sale” doctrine (17 U.S.C. § 109(a)) gives the owners of copyrighted works the rights to sell, lend, or share their copies without having to obtain permission or pay fees. The copy becomes like any piece of physical property; you’ve purchased it, you own it. You cannot make copies and sell them—the copyright owner retains those rights. But the physical book is yours. First sale has long been important for libraries, as it allows them to lend books without legal hurdles. (Jenkins, Jennifer. 2014. "Last Sale? Libraries’ Rights In The Digital Age". College & Research Libraries News 75 (2): 69-75.)

Quite simply, first sale is what allows libraries to do what we do – lend books and materials to our patrons, the public.

So, what about digital copies of books or ebooks? Why are there some "libraries" that allow you to borrow an ebook and others do not or can not or will not? First, we need to understand digital rights management. Here is a short explanation from the Textbook and Academic Authors Association article entitled, "E-books, digital rights management, and the first-sale doctrine."

As for the technical strategy to prevent the unauthorized use of e-books, many publishers use what is broadly known as Digital Rights Management (DRM). DRM refers to any technological measure that limits the use of a copyrighted electronic media. The most familiar form of DRM is copy protection, which limits the user’s ability to copy, transfer, or otherwise duplicate protected data files. DRM is not limited to preventing unauthorized copying and distribution. Indeed, DRM can be used to enforce essentially any restriction the copyright owner can think of. For example, a free e-book may include DRM that allows copying, but prevents alteration of the data file so that the e-book can only be copied and distributed in its original unaltered form. DRM may permit copies of a protected e-book to reside on a limited number of devices at the same time, or it may restrict use of the e-book to one copy on one device. DRM can also block the user from printing or cutting and pasting from an e-book.

 The First Sale Doctrine is codified in Section 109 of the U.S. Copyright Law which states in part:

109. Limitations on exclusive rights: Effect of transfer of particular copy or phonorecord
(a) Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.

The rest of the section is quite complicated. Does the First Sale Doctrine apply to ebooks online? What about other digital content?

As content was developed online including computer programs, the developers of this content sought to protect their rights. Traditional copyright law did not extend to many of the online circumstances. So, the developers, authors, creators etc. began to develop the concept of a "license." You can click on almost any major website today and you will see a long section of "Terms and Conditions." Many of these licenses blatantly modify and extend the law as it existed before copyright. Suffice it to say, it takes a legal specialist to understand the scope of these software licenses. Most of the restrictions online are now viewed as restrictions on copying and distributing and arise from automatically applied licensing provisions and have little or nothing to do with copyright. It is not unusual for a website to claim "copyright" protection when there actually is none and the only claim that has any legal basis is that of a license. You are asked to affirm your adherence to these licenses when you log in or register on a website.

However, if the "copyright" holder agrees, any content can be made available either for free or behind a paywall. If a copyright holder releases an item to the general public, in most cases, they cannot recapture the more limited rights.

One of the largest online sources for digital information is OverDrive, Inc. Here is a description of the company from Wikipedia:

Rakuten OverDrive, Inc. is an American digital distributor of eBooks, audiobooks, music, and video titles. The company provides secure management, digital rights management and download fulfillment services for publishers, libraries, schools, and retailers. OverDrive's catalog includes more than 2 million digital titles from more than 5,000 publishers. The company's global network includes more than 27,000 libraries and schools. OverDrive was founded in 1986 and is in Cleveland, Ohio.

This is all accomplished through negotiated licensing. At the core of the process is the concept of "One Title-One User" and a Subscription Service.  Here is a further explanation from the OverDrive website:

1. One-Title, One-User
Most closely resembling the model in place for circulation of physical books, under the one-title, one-user model, when a library purchases a single unit of a title to add to its digital collection, a single patron at a time can check out the ebook title for the lending period. If the library purchases two or multiple units of a title, the corresponding number of patrons would be able to check out the title. If a patron seeks to check out a title that is currently checked out by another user, the patron can join a waiting list, and is notified by email when the title has become available (i.e. after the lending period has expired). During the term of your agreement with OverDrive, the library will have access to your ebook materials for as long as the library has an effective agreement with OverDrive for the digital collection platform. OverDrive’s agreements with its library customers for the platform are typically multiyear, auto-renewing agreements. OverDrive will pay you a wholesale cost for every unit sold to the library. 

2. Subscription
OverDrive provides additional sales models for eBook titles under a subscription model which allows for concurrent use of digital content, eliminating wait lists or holds. OverDrive offers an annual subscription plan to library partners called Maximum Access (“MaxAccess”) as well as the Single-Title Simultaneous Use ("STSU") program. The MaxAccess model offers supplier’s digital content under a 12 month subscription; pricing is custom to each supplier based on tiers related to library circulation metrics. MaxAccess subscriptions are publisher specific and are generally
offered in groups of 25, 50, 100, etc. titles with the library selecting the digital content for their subscription. The STSU program offers a single title from supplier's digital content catalog for concurrent use under varying terms (e.g. 3 month, 6 month, 1 year). Similar to MaxAccess pricing is based on tiers related to the size of the library however it is specific to each title as it is based on the sale price for the title. For both MaxAccess and STSU the library pays OverDrive the license fee for concurrent access to their chosen collection of eBook titles or specific eBook titles. OverDrive pays you a wholesale cost based on the price of the collection/title licensed by the library.  

My wife and I have been using OverDrive for years to check out book electronically and read them on our devices.

Over time, the process of providing online resources will likely become ubiquitous but right now, it is extremely complicated. There are large collections of online genealogically important resources but unfortunately, most of these are limited in some way either through a paywall or through other limitations.

A Last Note

Many genealogically important documents and books are available in the "public domain" or have less restrictive licensing arrangements. The collections of these books and other items should continue to increase as time passes, but presently we are embedded in our over restrictive system of distribution.