College & Research Libraries News; Last sale?: Libraries’ rights in the digital age, February 2014

Jennifer Jenkins, College & Research Libraries News; Last sale?: Libraries’ rights in the digital age:

"In July 2013, the Department of Commerce released a “Green Paper”8 on copyright that solicited comments on digital first sale. In response, the Library Copyright Alliance expressed concern about the “proliferation of licensing” and advocated “restrictions on the enforcement of contractual terms that attempt to limit exceptions to the Copyright Act such as first sale or fair use.”9 Why? Because copyright’s exceptions are as important to its scheme as the exclusive rights themselves. Many librarians are concerned that digital technology has upset the balance between users’ and owners’ rights. In effect, we are back to 1908, except that now the notice that the publisher inserted in that book would have legal force, and would be accompanied by more restrictions.

What would legal reform look like? A farreaching option would be the introduction of a digital first sale right that cannot be waived by contract. Short of this, Congress could grant libraries specific rights allowing them to lend, preserve, and archive electronic materials. Courts might continue to allow fair use to shelter beneficial activities. Finally, private initiatives, such as the Digital Public Library of America and related academic projects, could step in to offer their own solutions to preserve libraries’ freedoms. These efforts to restore balance are important: publishers’ concerns are legitimate, but the cultural freedoms that first sale protects should not depend entirely on a licensor’s whims, either in 1908 or today."

Imagining a Swap Meet for E-Books and Music; New York Times, 3/7/13

David Streitfeld, New York Times; Imagining a Swap Meet for E-Books and Music: "On Thursday, the United States Patent and Trademark Office published Apple’s application for its own patent for a digital marketplace. Apple’s application outlines a system for allowing users to sell or give e-books, music, movies and software to each other by transferring files rather than reproducing them. Such a system would permit only one user to have a copy at any one time. Meanwhile, a New York court is poised to rule on whether a start-up that created a way for people to buy and sell iTunes songs is breaking copyright law. A victory for the company would mean that consumers would not need either Apple’s or Amazon’s exchange to resell their digital items... Libraries, though, welcome the possibility of loosened restrictions on digital material. “The vast majority of e-books are not available in your public library,” said Brandon Butler, director of public policy initiatives for the Association of Research Libraries. “That’s pathetic.” He said that 60 percent of what the association’s 125 members buy was electronic, which meant sharp restrictions on use."

Justices Weigh Case on Imported Textbooks; New York times, 10/29/12

Liptak, A., New York Times; Justices Weigh Case on Imported Textbooks: "The general rule for products made in the United States is that the owners of particular copies can do what they like with them. If you buy a book or record made in the United States, for instance, you are free to lend it or sell it as you wish. The question for the justices was whether that rule, called the first-sale doctrine, also applies when the works in question were made abroad. The answer turns on a phrase in the Copyright Act, which appears to limit the first-sale doctrine to works “lawfully made under this title.”... Much of the argument concerned what lawyers call the “parade of horribles” — the hypothetical problems that might follow a ruling in favor of one side or the other."

What You Need to Know About Kirtsaeng v. Wiley; Chronicle of Higher Education, 10/12

Chronicle of Higher Education; What You Need to Know About Kirtsaeng v. Wiley: "Many college students resell their textbooks online. But Supap Kirtsaeng turned textbooks into a profit machine, and his homegrown business is now at the center of a lawsuit that some observers call the most important copyright case in nearly a decade. The U.S. Supreme Court heard arguments in the case on Monday. Here's a guide to what the case means, and how it could send ripples far beyond college campuses."

Supreme Court Appears Divided on Copyright Case Affecting Libraries and Publishers; Chronicle of Higher Education, 10/29/12

Jennifer Howard, Chronicle of Higher Education; Supreme Court Appears Divided on Copyright Case Affecting Libraries and Publishers: "The U.S. Supreme Court heard oral arguments on Monday morning in a key copyright-infringement case, with justices asking pointed questions about the resale and reuse of protected works. Many of the questions homed in on possible consequences for individual buyers as well as libraries and other institutions, but did not suggest which way the court was leaning. The outcome of the lawsuit, Kirtsaeng v. John Wiley & Sons (No. 11-697), has significant implications for publishers, academic libraries, and almost anyone who resells, lends, or displays copyrighted material made and bought outside the United States. The case centers on a dispute over textbooks produced by Wiley for foreign markets."

Library Associations Brace for First Sale Fight with Owners’ Rights Lobby Effort; Library Journal, 10/23/12

Meredith Schwartz, Library Journal; Library Associations Brace for First Sale Fight with Owners’ Rights Lobby Effort: "The American Library Association (ALA) and the Association of Research Libraries (ARL) today teamed up with 17 other associations, retailers, and charities to launch a new coalition called the Owners’ Rights Initiative (ORI). ORI is an “informal alliance of stakeholders” that will defend the first sale doctrine, which allows libraries to lend books and other materials, as well as individual owners to resell them. The doctrine is under attack in the case of Kirtsaeng vs. Wiley, for which the Supreme Court will hear oral arguments on October 29. Among ORI’s other members are eBay, Overstock, Powell’s Books, textbook buyer and seller Chegg, movie rental company Redbox, Goodwill, and Quality King Distributors, which is notable as the prevailing party in Quality King Distributors v. L’anza Research International, in which the Supreme Court in 1998 held that the first sale doctrine prevents copyright owners from controlling the importation of copyrighted goods sold outside the United States. (Notable for its absence is Costco, which was a party to the split decision Costco v. Omega case that raised similar issues.)"

Your right to resell your own stuff is in peril; Market Watch, 10/7/12

Jennifer Waters, Market Watch; Your right to resell your own stuff is in peril: "At issue in Kirtsaeng v. John Wiley & Sons is the first-sale doctrine in copyright law, which allows you to buy and then sell things like electronics, books, artwork and furniture, as well as CDs and DVDs, without getting permission from the copyright holder of those products. Under the doctrine, which the Supreme Court has recognized since 1908, you can resell your stuff without worry because the copyright holder only had control over the first sale."

ReDigi, the ‘Used’ Digital Music Store, Stays Alive; New York Times, 2/7/12

Ben Sisario, New York Times; ReDigi, the ‘Used’ Digital Music Store, Stays Alive:

"ReDigi, a marketplace for “used” digital music that is being sued for copyright infringement by Capitol Records, fended off a motion in federal court on Monday that would have shut it down."

EMI Label Sues ReDigi, the Used Digital Music Store; New York Times, 1/6/12

Ben Sisario, New York Times; EMI Label Sues ReDigi, the Used Digital Music Store:

"Earlier this week, the music-publishing division of EMI filed suit against Grooveshark, a popular online music service, for breach of contract. On Friday, one of the labels in EMI’s recorded-music arm, Capitol, sued another online music company, ReDigi, for copyright infringement.

ReDigi opened last year with a novel, if controversial, business concept: let consumers resell their old digital music files. Relying on the “first sale doctrine”..."

Publishers vs. Libraries: An E-Book Tug of War; New York Times, 12/24/11

Randall Stross, New York Times; Publishers vs. Libraries: An E-Book Tug of War:

"Worried that people will click to borrow an e-book from a library rather than click to buy it, almost all major publishers in the United States now block libraries’ access to the e-book form of either all of their titles or their most recently published ones."

Fury over 'stupid' restrictions to library ebook loans; Guardian, 3/1/11

Benedicte Page, Guardian; Fury over 'stupid' restrictions to library ebook loans:

"Furious librarians are calling for a boycott of publisher HarperCollins over its decision to put a limit on the number of times its ebooks can be loaned.

Under the new policy, announced by distributor Overdrive in a letter to customers last week, libraries will only be able to lend out each purchased ebook published by HarperCollins a total of 26 times before the book's lifetime expires.

The development has led to an explosion of anger among librarians, who up until now have been able to lend any ebook as often as they like – just as they do with print copies. Loans are generally made via the library's website, with users gaining access via a PIN number, and downloaded ebooks remaining live for a two-week loan period."

Watch Out For the Omega Copyright Windup; Wall Street Journal, 7/30/10

Eric Felten, Wall Street Journal; Watch Out For the Omega Copyright Windup: A case about pricing timepieces could crimp library lending:

"Katharine Hepburn couldn't understand why Jimmy Stewart didn't devote himself to his art. Their characters in the 1939 movie, "The Philadelphia Story," are walking back from the local library, where Hepburn has acquired a copy of Stewart's collection of short stories: "When you can do a thing like that book, how can you possibly do anything else?" she asks (knowing that he has sunk to the rank of gossip reporter).

"You may not believe this, but there are people that must earn their living," he answers.

"Of course," she says, "but people buy books, don't they?"

"Not as long as there's a library around."

Stewart's hard-scrabble scribbler would be pleased to learn that a Supreme Court case scheduled to be argued in the coming term could put the kibosh on library lending, at least of those books published or printed outside the U.S. In a friend-of-the-court brief, the American Library Association and other library groups argue that a recent Ninth U.S. Circuit Court of Appeals decision "threatens the ability of libraries to continue to lend materials in their collections."

The librarians fear they are going to suffer collateral damage from a curious copyright case that has nothing to do with books. It's Costco Wholesale Corporation v. Omega, S.A.—a battle over whether the storied Swiss watch brand can control where and at what price its chronometers are sold in the U.S...

No doubt Omega was smart to turn to copyright law, given what an increasingly powerful tool it is. The number of years copyright lasts has been repeatedly lengthened, and juries have been known to hand down fines in the millions for illegally downloading a few dozen songs.

The strange and logically contradictory thing, though, is that copyright has been gaining in power at the very same time it has been rendered impotent. Some critics, such as Harvard law professor Lawrence Lessig, argue that copyright has become an oppressive behemoth; others, such as novelist Mark Helprin, lament that the old circle-c is being turned into a dead letter.

They are both right. In response to rampant violation of copyright, the entertainment industry, publishers and other such businesses have gotten Congress to beef up intellectual property protections. But "the worldwide copying machine called the Internet," as Suffolk University professor of law Stephen Michael McJohn puts it, continues to hum along, undeterred. The result, says Mr. McJohn, is a bizarre legal disconnect: "Almost everything is copyrightable, and almost everything is used without regard for copyright.""

http://online.wsj.com/article_email/SB10001424052748703977004575393160596764410-lMyQjAxMTAwMDMwMDEzNDAyWj.html

Lawsuit Over Use Of Creative Commons Content Raises Contract vs. Copyright Issue; TechDirt.com, 7/8/10

Mike Masnick, TechDirt.com; Lawsuit Over Use Of Creative Commons Content Raises Contract vs. Copyright Issue:

"One of the more interesting issues related to copyright law is how contract law meshes with copyright law. For example, there was the recent case (still going through the appeals process) over whether or not a copyright holder (a record label in this case) could effectively wipe out First Sale rights (allowing you to resell what you bought) via a contract. As of right now, the US courts have said no -- and that's important. If you could supercede copyright laws with contractual terms, it would make the limitations on copyright law effectively meaningless, because every product would quickly include some sort of licensing agreement that took away fair use, first sale and other exceptions (including, potentially, the idea that the copyrights might someday expire). This is not a US only issue, of course. Just recently we've seen blogs from elsewhere also start to discuss if contracts can increase limitations beyond copyrights.

However, there is a new lawsuit in the US that may be worth following on this topic. It involves GateHouse Media -- a company that has been ridiculously aggressive in trying to stop others from doing things as simple as copying a headline and a lede. In this case, the primary issue is a little (if only slightly) more reasonable, in that the lawsuit involves a company that sells nice looking plaques to people with a copy of a newspaper article about them or their company. GateHouse offers such a service itself, and clearly sees this competition as infringing.

Where the case gets interesting, however, is that GateHouse's content in this case (from the Rockford Register Star in Rockford Illinois), has its content covered by a Creative Commons "Attribtuion-NonCommercial-NoDerivs" license. The lawsuit covers a bunch of ground, but one interesting inclusion: claiming that the reprints are a contract violation, because they don't follow the Creative Commons license on the content.

For quite some time, Copycense has been banging the drum that setting up Creative Commons as a contractual layer to copyright takes it into dangerous territory that isn't good for copyright law itself or overall public policy. There haven't been too many cases that have tested this point, but it sounds like the GateHouse Media one has the potential to raise certain questions (who knows if we'll actually get answers) about how copyright and contracts relate to each other -- especially within the realm of Creative Commons.

This has been one of my concerns with Creative Commons. Many folks who support Creative Commons licenses are justifiably worried about what happens in cases like the one above concerning promo CDs where the First Sale doctrine gets written out of copyright law via contract. Yet, at the same time, the whole basis of many Creative Commons licenses is based on this same ability to bring contract law into copyright. As much as I like the concept of Creative Commons, this still leaves me worried. The lawsuit itself may not end up challenging this point, but sooner or later, someone's going to do so, and people who think they're on one side of the argument may quickly find themselves on the flip side."

http://www.techdirt.com/articles/20100707/04163310101.shtml

May a library lend e-book readers?; LibraryLaw Blog, 6/20/10

Peter Hirtle, LibraryLaw Blog; May a library lend e-book readers?:

"A recent post at the Citizen Media Law Project about one’s First Sale rights with e-books got me thinking about libraries. CMLP noted that with e-books, one has no first sale rights because they are usually governed by licenses instead. First sale, however, is fundamental to the business of libraries. It allows us to loan to others copies of printed books we have purchased without violating the copyright owner’s rights to distribute the work. Some libraries have started lending e-book readers to faculty and students, including the Lewis Music Library at MIT and the NCSU Library, which are both loaning iPads. Is this legal?...

I hope, therefore, that libraries that are experimenting with lending e-book readers have thoroughly vetted their program with an attorney. Mostly, I hope they are working with Apple, Amazon, etc. to create new library-friendly licenses. We need licenses that will allow libraries to purchase e-books that can then either be copied directly onto patron-owned devices or copied onto library devices that are then lent to patrons. If e-books become as important as people predict and libraries do not have the legal right to lend those e-books, the traditional role of the library as a free source of reading matter will fade away."

http://blog.librarylaw.com/librarylaw/2010/06/may-a-library-lend-e-book-readers.html

Library Associations Support Online Software Reseller in Vernor v. Autodesk infringement lawsuit; District Dispatch, ALA Washington Office, 2/16/10

District Dispatch, ALA Washington Office; Library Associations Support Online Software Reseller in Vernor v. Autodesk infringement lawsuit:

"On Thursday, February 11, the American Library Association (ALA), the Association for College & Research Libraries (ACRL) and the Association of Research Libraries (ARL) – the Library Associations – joined a coalition of public interest and consumer groups in urging a federal appeals court to preserve consumers’ rights and the First Sale Doctrine (which allows libraries to lend books) in a battle over an Internet auction of used computer software.

An amicus curiae brief was filed with the U.S. Court of Appeals for the 9th Circuit, the Electronic Frontier Foundation – joined by the Library Associations, the Consumer Federation of America, U.S. Public Interest Research Group, and Public Knowledge – in support of plaintiff Timothy Vernor. Vernor is an online software reseller who tried to auction four authentic packages of Autodesk’s AutoCAD software on eBay. Autodesk sent takedown notices to block his auctions and threatened to sue him for copyright infringement, claiming that its software is only “licensed,” never sold.

At the heart of the case is the First Sale Doctrine – an important limitation under Copyright law that gives copyright holders control over the first vending or sale of their work(s). The first sale doctrine steps in after an individual copy has been sold and puts further disposition of the copy beyond the reach of the copyright owner. The first sale doctrine is fundamental for libraries and other organizations such as archives, used bookstores and online auctions, as it allows a “second life” for copyrighted works.

The brief argues, in part, that the first sale doctrine is well-established, serves critical economic and democratic values, and promotes access to knowledge, preservation of culture, and resistance to censorship. Libraries rely on provisions in the Copyright Act, such as first sale, to accept donations of special collections and to preserve these works. If Autodesk wins this case, software vendors would potentially be permitted to evade the first sale doctrine via contractual license agreements. Such a ruling could allow other copyright owners to follow suit with licenses on books, CDs, DVDs, and other media, with strong implications for libraries and our users.

The full amicus brief can be viewed here."

http://www.wo.ala.org/districtdispatch/?p=4388

Senators Begin Questioning ACTA Secrecy; Tech Dirt, 11/23/09

Mike Masnick, Tech Dirt; Senators Begin Questioning ACTA Secrecy:

"Despite some sweet talk from Hollywood about how important ACTA and its secret negotiations are to America (and, once again, no, the secrecy is not at all "normal," as some industry lawyers would have you believe), it looks like some Senators are finally beginning to question how ACTA is being handled. Senators Bernie Sanders and Sherrod Brown have sent a letter to US Trade Rep Ron Kirk asking for ACTA documents to be made public. The letter points out that "the public has a right to monitor and express informed views on proposals of such magnitude" especially considering that "there are concerns about the impact of ACTA on the privacy and civil rights of individuals, on the supply of products under the first sale doctrine, on the markets for legitimate generic medicines, and on consumers and innovation in general." The letter also takes on the bogus claims of state secrets in protecting ACTA documents".

http://www.techdirt.com/articles/20091123/1541197061.shtml

Psystar Loses Big To Apple; Tech Dirt, 11/16/09

Mike Masnick, Tech Dirt; Psystar Loses Big To Apple:

"When Psystar first started selling PCs with Apple OS's installed on them, we knew there would be a lawsuit -- though it took a bit more time than we expected. Originally, Psystar tried to claim that Apple was violating antitrust law, which seemed like a wasted path for exploration -- and, indeed, a court rejected that claim. Then Psystar went back to more reasonable defenses... or so we thought.

The court hearing the case didn't seem to think any of Psystar's main lines of defense had any validity at all and granted summary judgment to Apple on all of the major points, saying that a trial wasn't even necessary. The "fair use" claim was already weak, and the judge noted that Psystar didn't even try to discuss any of the four factors generally used in determining fair use. The two (I thought) stronger claims were that (a) the right of first sale applied, and once Psystar purchased OSX legally, it could resell it, provided it was only installed on that one computer, and (b) that Apple went too far in its EULA terms, which demanded that OS X could only work on a Mac. Unfortunately, the judge didn't agree to either one, though I find the judge's reasoning perplexing and hardly convincing."

http://www.techdirt.com/articles/20091114/1813376929.shtml

Ruling for Apple against Psystar means clone-makers have no legal recourse; Guardian, 11/14/09

Charles Arthur, Guardian; Ruling for Apple against Psystar means clone-makers have no legal recourse:

"Psystar, the little company in Florida that seemed for a while to be based in the back of a truck while it made Apple clones based on PC hardware, has lost all its claims against Apple in a legal victory that is an important ruling against would-be clone makers.

The company had already filed for bankruptcy - specifically, Chapter 11 protection, which protects a business from creditors while it restructures - back in May. But in the ruling (via BusinessWeek, via Groklaw) Judge William Alsup ruled that Apple's end user licence agreement (EULA) on its Mac OSX software is legal and can be interpreted broadly - that when it says you can't install on non-Mac hardware, that's what it means; it doesn't mean that you could argue that it's a bit limiting on you.

The PDF of the ruling explains that the problem comes down to this line: "Psystar has modified Mac OS X to run on its computers and has sold them to the public."

Psystar had claimed that "first sale doctrine" in the US means that the buyer (Psystar) can sell something on, regardless of whether the original owner (Apple) likes it. But the modification - "Psystar then replaced the Mac OS X 'bootloader'", to quote the finding of facts - means that first sale doctrine doesn't apply any more."

http://www.guardian.co.uk/technology/blog/2009/nov/14/apple-psystar-cloning-licence-judges-ruling

Do Libraries Need Permission To Lend Out Ebooks?; Techdirt, 10/16/09

Mike Masnick, Techdirt; Do Libraries Need Permission To Lend Out Ebooks?:

"Some publishers are refusing to allow libraries to lend out their ebooks...which makes me wonder why the publishers have any say in the matter. Thanks to the right of first sale, a library should be able to lend out an ebook if it's legally purchased it without having to get the publisher's permission."

http://www.techdirt.com/articles/20091015/1511426550.shtml

Amazon Faces a Fight Over Its E-Books; New York Times, 7/27/09

Brad Stone via New York Times; Amazon Faces a Fight Over Its E-Books:

"A growing number of civil libertarians and customer advocates wants Amazon to fundamentally alter its method for selling Kindle books, lest it be forced to one day change or recall books, perhaps by a judge ruling in a defamation case — or by a government deciding a particular work is politically damaging or embarrassing.

“As long as Amazon maintains control of the device it will have this ability to remove books and that means they will be tempted to use it or they will be forced to it,” said Holmes Wilson, campaigns manager of the Free Software Foundation.

The foundation, based in Boston, is soliciting signatures from librarians, publishers and major authors and public intellectuals. This week it plans to present a petition to Amazon asking it to give up control over the books people load on their Kindles, and to reconsider its use of the software called digital rights management, or D.R.M. The software allows the company to maintain strict control over the copies of electronic books on its reader and also prevents other companies from selling material for the device.

Two years after Amazon first introduced the Kindle and lighted a fire under the e-books market, there is increasing awareness of how traditional libraries of paper and ink differ from those made of bits and bytes. The D.R.M. in Amazon’s Kindle books, backed up by license agreements with copyright holders, prevents customers from copying or reselling Kindle books — the legal right of “first sale” that is guaranteed to owners of regular books.

D.R.M. has created a new dynamic between consumers and the vendors of digital media like books and movies. People do not so much own, but rent this media. And the rental agreement can be breached by the manufacturer at any time, sometime with little or no notice.
People are also worried that the very architecture of network-connected devices like the Kindle, TiVo or iPod give tech companies unprecedented control over digital media and by extension, the free exchange of ideas.

Once upon a time, retailers sold customers a product and then walked away after the transaction. Today’s specialized devices often keep an umbilical cord to their vendor, loading updates and offering convenient ways to make purchases. These devices also limit the extent to which people can load independent software and customize their experiences.

Such tethered systems provide significant advantages to the consumer. Companies can keep their own records of what people buy and restore the content if it is inadvertently lost. Device software can be kept up to date, and vendors can track what people buy and make personalized recommendations for new material they might like.

Randal C. Picker, a law professor at the University of Chicago, says he thinks Amazon was right to delete the improperly sold versions of “1984” and argues such systems can also allow companies to better enforce copyright laws. He notes that the harm to the Orwell book buyers was minimal, since their money was refunded after copies were deleted from their Kindles.

“Because copyright infringement was poor and lax in the offline world, it should also be that way in the online world? I don’t understand that logic,” Mr. Picker said. “The whole point of moving online is that it creates new opportunities.”

But critics say that any device capable of interfering with how its owner uses media is potentially dangerous. “I worry that systems like these tethered appliances are gifts to regulators,” said Jonathan Zittrain, a professor at Harvard Law School and author of the book, “The Future of the Internet — and How to Stop It.” Mr. Zittrain predicts that governments in some parts of the world will want to use it “like a line item veto for content,” removing objectionable sentences or chapters in some books.

“It could happen first in jurisdictions like the United Kingdom, where there isn’t as rich a First Amendment tradition and where libel suits happen much more frequently,” he said.

Whether or not people are bothered by these possibilities may in part be a function of their age, as a new generation grows up with an implicit understanding of the rules around these networked devices and learns to live with them.

“I’d like to live in a perfect world where I own this content and can do whatever I want with it,” said Justin Gawronski, a high school student whose copy of “1984” was erased by Amazon, but who recently declined when a lawyer asked him to join a class-action lawsuit over the incident. Mr. Gawronski said, “This is probably going to happen again and we just have to learn to live with it.”"

http://www.nytimes.com/2009/07/27/technology/companies/27amazon.html?_r=1&scp=1&sq=e-books&st=cse