E-Book Lending: The Serpent in the Garden of Eden

I wrote my previous article about e-books and libraries in response to an article by my colleague Thad McIlroy on his Future of Publishing site.  The news that HarperCollins had put restrictions into its e-book licenses for lending library services so that each “acquired” title could only be loaned out 26 times was fresh and appeared as a side note in my article.  HarperCollins (a division of Rupert Murdoch’s News Corp) is one of the world’s largest trade book publishers.  So, what about this major development?

First, let’s quickly review the technical and legal backdrop to what HarperCollins is doing.  Libraries normally buy (acquire) books to lend to library patrons.  This is made possible through the copyright law, specifically section 109, which is known as First Sale.  Section 109 says that anyone who legitimately obtains a copy of a copyrighted work (e.g., a book) can do whatever she wants with it, including resell it, lend it, or give it away.  Eventually physical books in lending libraries become worn and damaged; libraries may repair them or dispose of them.  Libraries control lending abuses by collecting fines from patrons who return books late or not at all.

In the world of e-books, libraries don’t buy titles; they license e-books in order to license them to patrons.  A license is a contract, the terms of which are ultimately up to the publisher.  Copyright law allows libraries to lend digital works to their members, but DRM-packaged e-books are governed by licenses, and thus contract law, not copyright law.

Of course, it takes no effort to make a copy of an e-book.  That’s why library services use DRM to ensure that e-books are loaned only to properly credentialed users (i.e. members of the library) and that those users can’t make copies for their million best friends.  Service providers like Overdrive and NetLibrary have arisen to make it possible for libraries to “lend” e-books in a way that is very similar to the way they lend hardcopy books: you get access to the e-book for the library’s lending period (perhaps a couple of weeks, or for a reference work, a few hours), and then it “disappears” from your device and becomes available to another library member.  Libraries can license multiple copies of popular works so that more than one patron at a time can borrow them.

The noted library technologist Eric Hellman calls this the “Pretend It’s Print” model — a characterization I don’t quite agree with, but leave that aside for the moment.  Hellman characterizes “Pretend It’s Print” as a reasonable model, at least for the time being.  But HarperCollins appears to be taking “Pretend It’s Print” quite literally: they seem to be trying to emulate physical wear and tear on a book that leads some libraries to discard books after a while.  Still, Hellman’s blog post on the subject drips with contempt for HarperCollins.

I also believe that HarperCollins has done the wrong thing, but for a different set of reasons.  Let me preface my reasons with a couple of caveats: I have no access to statistics on the expected lifespans of library books, though I found a couple of data points that expect between 20 and 35 loans until a book must be either discarded or repaired at a cost that may exceed its value — thus making HarperCollins’s 26 seem like an appropriate number (or did they find the same two articles I did?).  I also have no insight into a library book’s promotional value to a publisher, but I suspect it’s not very high.

HarperCollins’s 26- loan limit is just a bad decision.  It is bound to please absolutely no one.  It is a lose-lose-lose proposition.  The library community is up in arms on Twitter and elsewhere about the decision.  Many are calling for libraries to boycott HarperCollins material in hardcopy as well as e-book format.

Yet at the same time, two other major publishers, Macmillan and Simon & Schuster, never licensed e-books for library lending in the first place.  Librarians complain about this, but not very much.

As I said previously, I had heretofore considered e-book lending to be one of the real success stories of DRM.  Libraries get to lend e-books, publishers get paid for those e-books, and library patrons can read them on a wide range of devices (pretty much anything but a Kindle) without leaving their homes or offices.  Everybody wins.

Furthermore, let me be clear that some form of content protection is absolutely necessary for library e-book lending.  To allow library patrons to make additional copies of “borrowed” digital materials with even relative impunity is just plain unfair to publishers and authors.  (Yes, DRMs can be hacked; people can make digital scans of hardcopy books too.)

Yet HarperCollins is making two serious mistakes in DRM implementation.  One is to try – too literally – to use DRM emulate a physical product in the digital domain.  This has never worked, because a digital emulation will always contain one or more shortcomings with respect to the original physical model that will not meet user expectations.  “Pretend It’s Print” may be a convenient point of reference for consumers, but it is more effective to focus on the content access model rather than the physical product in designing digital content services.  (As far as I know, record labels aren’t experimenting with DRMs that gradually introduce clicks, pops, and skips into digital music files.)

In this case, the HarperCollins model will fail to meet “user expectations” by angering librarians, who don’t like DRM in principle.  Either the e-book will suddenly become unlendable without warning or the DRM system will warn librarians that they will soon have to pay for another license to keep lending the e-book.  How many libraries will re-up?  Not many, I suspect.

Furthermore, this move defies logic regarding publishers’ strategies for their backlists (catalogs of older content).  Publishers believe that their backlist titles have less value than frontlist titles, and they constantly seek ways to invigorate sales of their backlists.  By making it unlikely that e-books will be available for library lending after a year or so, HarperCollins is both cutting off access to products that it presumably does not value highly in the first place and hurting its ability to invigorate its backlist.  This makes no sense at all.

The other mistake that HarperCollins has made is to introduce complexity into a DRM implementation in a way that adds no value for users.  Many early digital music services failed to gain user acceptance because they were too complex for users to understand.  Some, for example, had Byzantine pricing plans – X permanent downloads, Y timed downloads, and Z streams per month – that resembled the bad old days of confusing cell phone plans.  iTunes won because it kept things simple.  Nowadays, as music services take on more and more new features in their attempts to unseat the iTunes juggernaut, they risk similar user confusion and alienation (most egregious current example: the feature-overloaded MOG).

If HarperCollins wanted to try something different with licensing terms, it should have done something that offered value or choice.  It could, for example, have offered a choice of limited-loan titles for less money or unlimited-loan for full price.  (Eric Hellman tried polling this question; the responses he got prove little more than how emotional everyone is over this issue — which is exactly my point.)

If HarperCollins does not get value from e-book lending, then why not just pull its catalog entirely and join Simon & Schuster and Macmillan as library holdouts?  If they do that instead, librarians need not bother boycotting HarperCollins’s e-books; and any threats to boycott the publisher’s hardcopy releases will surely ring hollow.

The end result of a move like this can only be the slow and painful death of library e-book lending.  HarperCollins may hope that other publishers will follow its model – though not so closely as to invite antitrust scrutiny.  This will only lead to further confusion for librarians and users alike: HarperCollins allows 26 loans, Random House allows 35, Penguin allows 20, etc.  There is no way that a model like this can lead to the growth in library e-book lending that libraries need to survive as e-reading grows in popularity.   `

Libraries are highly unlikely to reverse the tide in the market alone.  Boycotts may be emotionally satisfying but will have no practical impact.  Instead, the library community’s best hopes lie in the legal system.

The most likely route would be to try to get the Copyright Office, at its next DMCA rulemaking in 2013, to approve an exemption that would allow libraries to circumvent (hack) DRMs in order to lend e-books as long as they re-package them for the library patron with the same type or strength of DRM.  This would be a more elaborate exception than any that the Copyright Office has granted in its four DMCA rulemakings to date.  It also has various disadvantages: it could only last three years under the DMCA rulemaking rules (every exception only lasts until the next triennial rulemaking); it could cost libraries more money to support than they pay Overdrive or NetLibrary, which benefit from scale economies; and it could induce publishers to demand (and perhaps even pay for!) DRM that is more difficult to hack.

But perhaps it’s worth a try.  Unlike the Section 108 Study Group — a body that recommends changes to the part of copyright law that covers libraries, which ironically has little bearing on the issue at hand — it is possible for anyone to submit a request for a DMCA exemption to the Copyright Office without first having to run a gauntlet of copyright industry lobbyists.

If the Copyright Office were to grant such an exemption, it would mean that a library could be free to purchase any e-book — not just those that the publisher decides to license — and lend it to its members on its own terms while respecting copyright.  The result would be a better version of “Pretend It’s Print” — in the business model sense, where it counts.


  1. HarperCollins executives knew that Simon & Schuster and Macmillan don’t even offer ebooks to libraries. You write that “librarians complain about this, but not very much.” Why not? If publishers as large as Simon & Schuster and Macmillan stopped selling printed books to libraries the complaints would be loud and unequivocal. In part because it would be illegal. But, I assume, by making the ebook transactions a license rather than a sale they can impose this ridiculous restriction. What is wrong with this picture?

    Would it be naïve to believe that HarperCollins was naïve when it issued its ludicrous and arbitrary 26-loan directive, that it didn’t anticipate the storm of anger that has followed? I think my antenna managed to record the conversation around the CEO’s table: “Thank God Simon & Schuster and Macmillan made such asses of themselves. Now we can pretend to be reasonable while being even bigger jerks. And before you know it the public will perceive that libraries are not a go-to place for ebooks. Victory.”

    Josh Marwell, president of sales at HarperCollins just posted an entry offering his company’s justification for its new policy on the amusingly-named Library Love Festblog. The underlying reason takes just a few words: digital books don’t
    deteriorate with use. They don’t get replaced.

    His reasoning apparently embraces the unproven thesis that there is little or no secondary sales effect from library circulation. Sarah Glassmeyer calculates that libraries spend about $1.1 billion annually on book purchases, while circulating some $45 billion of value to patrons. If each library borrower bought one ebook or print book each year the gross sales would range between $1 and nearly $4 billion. Which is perhaps all that we know about the secondary sales effect from library exposure. If.

    I’m going to explore this topic further on my blog early next week.

  2. Mark Kohut · ·

    Simply wrong on what you say about backlist…..backlist, modern classic and proven books still under copyright, will be the ones that will earn the writers–and the publisher, granted—more money as those steadily in demand books expire and are rebought as demand continues. Just as happens now with reissues of the best-loved books.

  3. Mark,

    Thanks for writing. If you think I am wrong about the backlist issue, then you don’t understand the actual demand for e-book loans from libraries. They aren’t long-tail titles such as the ones you mention or the ones that your small publishing company puts out. The overwhelming majority of e-book loan requests are for the latest bestsellers, and as you should know from your own background, that’s where big publishers like HarperCollins put the bulk of their marketing efforts. No, I read this move as an attempt to milk more revenue from libraries for frontlist titles, some of which may become dependable backlist titles but many of which will not (fad diet books, timely political bloviations, quickie ghostwritten reality-TV-star books, etc.). All HarperCollins’s move does, in this light, is help prevent the enduring frontlist titles from making it to the midlist or backlist in terms of e-book lending because libraries won’t re-up after 26 loans.

    You should also think about this from the perspective of long-tail math. A dependable backlist book – say, a Tom Clancy thriller or Agatha Christie mystery still in copyright – will be loaned out in e-book form far less frequently than a hot new bestseller, for which many libraries will have a long waiting list. The 26-loan limit on such a title will last a library several years, meaning that the limit has no effect other than to get librarians angry. Making matters worse, such books are the most likely to lead to actual sales, such as of more works by the same author.

    No, I don’t see this helping publishers with their backlists at all.

  4. Bill, thanks for a very timely post!

    I’m somewhat surprised that you haven’t touched on another OverDrive DRM-powered lending service provided by libraries: audiobooks. As a one-time patron of library-loaned audiobooks through Listen Up! Vermont — that is, until my addiction to Ubuntu made OverDrive-powered ebooks unusable — I haven’t known them to have limited shelf-life, although a constant frustration has been a limit on lendable copies. I’m not exaggerating that in the few years I attempted to use “LUV” (heh, heh…) I almost never could check out a recent, popular title. Yes, there were always some titles available; it seems that OverDrive makes sure that library users have access to a large set of older and/or out-of-copyright titles with unlimited lendability…

    Every time I left the online library empty-handed I’ve asked, what’s the point of digital? Yes, my local library has a limited selection of CD-based audiobooks, and yes, when one of those copies is checked out, no other patrons have access. Also yes, I also get really frustrated at my library’s almost constantly empty audiobook shelves!

    Why can’t digital lending be better?

  5. […] E-Book Lending: The Serpent in the Garden of Eden […]

  6. John,

    I think you’ll find that frustration over the number of lendable copies is the same in the e-book world as it is for audiobooks. That’s one complaint that Thad McIlroy made in his article; I’ve heard it elsewhere; and I’ve experienced it myself when trying to borrow frontlist nonfiction titles from the New York Public Library’s Overdrive site. This has to do with the rather prosaic issue of budget allocations and the more interesting issue of whether people are more apt to borrow e-books because of the armchair-ease of doing so compared to having to physically travel to a library.

    It stands to reason that publishers and authors (and audiobook reading talent, etc.) need to be paid in proportion to the number of borrowers. I can’t think of another way to do it that’s reasonable. So given that, one answer to “why can’t digital lending be better” is the oldest answer in the world: money.

  7. Just discovered a good overview on O’Reilly: “HarperCollins’ cap on digital lending caused a dustup across the publishing industry.” (http://radar.oreilly.com/2011/03/harpercollins-digital-cap.html)

    I’d not previously realized this more nasty aspect of the publishers’ attack on public libraries, requiring “OverDrive and our library partners to cooperate to honor geographic and territorial rights for digital book lending, as well as to review and audit policies regarding an eBook borrower’s relationship to the library (i.e. customer lives, works, attends school in service area, etc.).”

  8. Catherine at BookLending.com · ·

    Peer-to-peer ebook lending is another part of the equation. We have a community of 16,000+ users at http://www.BookLending.com who are leveraging Kindle’s book lending feature (ebook “owners” can lend a book one time only for 14 days) to create a crowdsourced lending library of sorts. Publishers have to enable Kindle book lending on a title-by-title basis; interestingly, Macmillan is one of the big publishers that has.

  9. I’m sorry, I know I’m going to be a lone dissenter here, but how can anyone take this technology seriously?

    Libraries are tax-payer funded institutions who’s mission is to spread knowledge and books, often times, to people who can’t afford to buy them.
    Why should libraries be forced to be an arm of the publishers?

    A lot of librarians have the right spirit, about wanting information spread more freely, but don’t understand the technology, at all.
    I remember, when I first got to college, I sat down at the table next to the compact discs, with my laptop, and took about a dozen CDs off the shelf, and ripped them, over the course of about 45 minutes.

    The very nice and helpful librarian offered to help me check one of the CDs, but I explained to her that doing so was not necessary, as I now had lossless recreations of all of the music, and of course I would be rsyncing it to my school music server.
    Our school was trying to push this re-branded Napster service on us, which of course, was a joke, because even though many of the students didn’t have the technical knowledge to pirate for themselves, there were always people like me who were more than happy to load their laptop up with 90G of free music.
    With increasing bandwidth, processing power, and especially storage space, it’s gotten to the point where we can just load people up by-genre.
    What do I mean by that? Here’s an example:
    “Oh, you like Hip Hop? Here’s every single major Hip Hop release for the last decade, enjoy, and make sure to share it with your friends!”

    Books are even easier to liberate.
    I already have more books than I could ever hope to read in a lifetime on my fileserver.
    I leave people’s ebook readers, tablets, and phones, overflowing with free books.

  10. Ok, Aaarthur, since you’re the first self-professed member of the Pirate Party to favor this publication with a comment, I’ll bite, even though I’m jet lagged and it’s probably against my better judgment:

    Please explain to me why the only types of technology that anyone should (using your words) “take seriously” is that which allows you to infringe copyrights? I can assure you that publishers take technologies like those described here very seriously indeed, even though they may not fully understand them either. Your embrace of technology is hypocritical in its selectivity.

    Now having said that, please read more carefully and you will notice that my recommendation to libraries is that they set themselves up with a legal mechanism that enables them to rely on copyright rather than publishers’ licensing terms. This would satisfy your more reasonable objective that libraries not be “agents of publishers” while still respecting copyright.

  11. James MacDonald, MLIS · ·

    I completely agree that libraries should re-package ebooks in their own DRM for loan. However, they need as user friendly an environment as Amazon’s Kindle store with apps available for every major device. Overdrive has made great strides in the last couple years but they are not there yet.

    I’m not sure that fighting for a three year concession in copyright law is the right choice – it sends completely the wrong message. Libraries have hundreds of years of precedent in loaning literature of every format. I think the answer is closer to first building a digital library infastructure that protects publishers and creators rights through one title one loan DRM protected policies and then simply to start lending. If the largest libraries lead the way – both public and academic – backed by the largest library associations (ALA) then while libraries will certainly find themselves embroiled in a lawsuit from major publishers for years I strongly believe the outcome will favour freedom of information, accessibility and centuries old precedent.

    Librarians are concerned for the rights of creators and publishers. They want a fair and equitable solution – a win win. Leaving the wealth of human creation in the hands of major corporations and accessible only to the wealthy and privileged is ultimately a loss for everyone.

    The majority of librarians are not fooled. We know our CD collections have been the prey of the unscrupulous since their arrival on our shelves (every format is the same). We’ve taken every reasonable precaution in protecting the rights of authors and publishers without infringing on the rights of the people. We’ll do the same with ebooks.

    Every new format that has come along libraries have simply begun lending it – ebooks pose the problem of being more accuratley and quickly reproduced than any previous format. In the past we attached tattle tape and put up security gates. Today we simply need to add our own DRM. If the publishers won’t sell the titles directly to the library then they should buy them through any other legitimate reseller – Amazon and Barnes and Noble come to mind. There are enough programmers in the library world that cracking their DRM and inserting our own should not pose a serious problem.

    Libraries already throw out the dust jacket and slap RFID, tattle tape and property stamps all over print titles. This really is not much different. I would not say I’m arguing for the “treat them like books” model – rather a treat them as we have every other format, model.

  12. James,

    What you say makes sense as far as it goes, but unfortunately virtually none of the discussions I have had with library people have evinced “concern[] for the rights of creators and publishers.” They may reflect genuine respect and admiration for authors as well as heartfelt and valuable desire to spread the word about a great book. But let’s not conflate that with concern for authors’ rights, because library people generally don’t.

    The contentiousness between publishers and libraries has equally long precedent, which the current situation with HarperCollins merely exacerbates. Many religious and racial analogies come to mind here, but I won’t go there for fear of appearing insensitive.

    Also let’s please not confuse RFID tags, “Property Of” stamps, etc., with DRM. If you fail to return a book or CD to your public library, you’re depriving your fellow library patrons of that work, not to mention stealing. The same is not true of digital content. In this case we are making copies, so we cannot “treat them as we have every other format.”

    If you want a better analogy, think about digital watermarking. It’s easy enough to slap a visible “Property Of” watermark on every page of an e-book. It’s also easy to go a step further and watermark each page with the borrower’s ID. This technique presupposes that a user will only “lend” digital content to someone she trusts with her personal information. Unfortunately, although this technique has been around for about a decade — including in Microsoft’s long-abandoned Microsoft Reader technology — no publisher has seen fit to license content for it.

  13. James MacDonald, MLIS · ·


    I’m completely in favour of a one book (ebook) one user model which would require, I believe, DRM distributed with ebooks libraries legally purchase or are donated to them. I thought the RFID and “property stamp” analogy was weak but I couldn’t think of anything better at the time. Although, having personal info imprinted on a digital book may get librarians’ backs up much more than Harper Collins short sighted decision.

    I’ll also concede that concern for authors’/publishers’ rights is not equally shared by all librarians. I’m sorry the conversations you’ve had don’t seem to show a genuine concern for them from librarians. Perhaps, this is a result of the context of those conversations? I’m not the gambling type but I’m willing to bet librarians are much more concerned for authors’ and copyright holders’ rights than the average citizen; despite having been continually burned by publishers. (Granted many publishers likely feel as burned by libraries). Perhaps a little research is needed on librarians’ feelings toward publishers and authors’ rights.

    I’ve been a librarian for a while now and I’m still often surprised at the lengths librarians take to protect copyright holder’s rights.

    You speculate in your post that library books’ promotional value to publishers is not very high. Try a small thought experiment. Imagine that the next 10 projected bestsellers never hit the shelves of libraries nationwide as hardbacks? They are not promoted by libraries in any way, no book clubs, posters, author readings etc. How do you think that set of bestsellers would fair next to the set before or after? I’d love to run that experiment. Don’t forget that libraries also… breed (for lack of a better term) many of the publishing industries customers.

    I think you are closer to the solution than anyone else I’ve heard. Libraries should break publisher DRM and add their own which will allow for a one “book” one user model. I’m not sure if American law currently forbids breaking DRM? I know Canadian law may very soon include legislation forbidding the tampering with digital locks. I imagine that the recent case against Apple and the Jailbreaking of their software sets a nice precedent for digital lock busting in the U.S.

    Taking this to the lawmakers by default sends the message that we don’t believe current law and established lending precedent apply to this new format and that we need new laws to allow it. If we want a “swift” and equitable outcome to this libraries must proceed as they always have – taking reasonable precautions to protect the rights of copyright holders (in this case custom DRM) and begin buying and lending ebooks as soon as possible.

    One last point: Overdrive, Netlibrary and others (aggregators of content who broker licenses on behalf of libraries) are not the answer. Libraries, by using these vendors have outsourced what they did best in the past – organizing, housing, protecting and distributing content in a user centred and accessible environment. It is time they reclaimed it by developing a digital infrastructure of their own capable of doing what they did so elegantly for print.

  14. Bill,

    Thanks for responding.
    Why should customers, or library patrons, participate in a shared delusion, and pretend that these toothless drm schemes actually work?

    Perhaps we could have an honor-system based drm scheme, where people simply agree to delete content after two weeks, and then set a $20 on fire.
    Would what I just described be any less absurd?

    We already basically do, in that, a server that the library has has a copy of a book, but refuses to distribute it to people, because it is pretending that the book is a finite physical object.

    We are not “in this together” with the book publishers, we are their customers, we have no responsibility, in a free market, to help them succeed, nor do we really have any incentive.
    When a multi-billion dollar corporation drags its heels and makes poor decisions, I feel no shame in calling them out, and exploiting their poor decisions.
    There will always be apologists who come out from the woodwork to say “well, at least they’re trying!”
    These corporations don’t deserve a pat on the back and an A for effort, they’re not kindergartens showing us something they fingerpainted.

    Look at the record industry, they had to be dragged kicking and screaming every step of the way back into alignment with the market, distributing drm-free mp3s.

    They spent almost a decade trying to reach this fantasy world where magic drm glue will let people buy music they like and they would always get a cut of it.
    Remember SDMI? Remember all of the failed DRM schemes?

    But, to try to answer your question more directly, the reason that this technology can’t be taken seriously is because 1) it doesn’t really work and 2) it’s trying to emulate a physical book, which is stupid.

    You’ll never have market innovation if device manufacturers have to get permission before they create something, just to make it usable, and the most open and inter-operable system will win, that is, drm-free.

    I know my views may seem a bit radical, and in-fact I’m not opposed to the concept of copyright, I just don’t think trying to wrap the logic of copyright law, as it exists now, around digital content is fundamentally flawed.
    I think we as a society, and as an industry, need to seriously re-examine how we distribute and pay for content, and it may be best to simply create a new class of intellectual property (ugh I hate that word so misleading) for digital goods, in the spirit of copyright, but which actually was designed with digital content in mind.

  15. I also have a follow-up to what I was saying about me ripping cds from the library.
    Is what I’m doing wrong?
    Isn’t it just streamlining what I would have been doing, anyway?
    Should I have actually checked out each CD for 15 minutes, ripped it, and checked it back in?
    Should I have brought the CDs back to my dorm to rip them, and then returned them? Would that really have made a difference?
    Or perhaps ripping them is wrong (I can’t imagine how), should I not have listened to that music on my ipod, and instead gone on eBay and purchased an old portable CD player to listen to these CDs with?

    Would you have been ok with me ripping the music, if I deleted the files when I checked the compact discs in?

    What I’m getting at, is that when we’re dealing with non-physical goods, you can’t talk about “depriving” people of anything — the only ones depriving anyone of anything, or imposing any limits, are the publishers, resellers, and lenders.
    I’m not decreasing the supply of anything, I’m *increasing* the supply.
    So I can’t possibly see how that would be theft.
    Oh, I get that it’s highly disruptive to many corporation’s business models, I can see how that would harm them, but it’s still not *theft*.
    Giving my mate a lift from the train station is “stealing” from the taxi companies, I suppose?

    Anyway, I hope I wasn’t too snarky but I figure that’s a complete reply.

    Hope to hear your thoughts on this, cheers.

  16. Aaarthur,

    I could go on at some length, but I’ll stop with two observations:

    1. The questions you’re asking about use cases, even if you’re asking them rhetorically, show only that you don’t know anything about copyright. If you go learn something about what copyright actually is (hint: it’s about making copies), then you’ll have answers to many of your own questions, modulo certain weird things such as differences in the laws for audio vs. video. (Now having said that, I happen to agree that there is a major impedance mismatch between the basic ideas of copyright and the digital world.)

    2. I am sick and tired of hearing the old copyleft copout “DRM is pointless because it has been hacked” or “because it doesn’t work” etc. There are millions of technologies that have flaws, yet people use and invest in them anyway, the latter in the hope or expectation that they will get better. The big problem with DRM, as I have said repeatedly, is that no one is investing in making it better, by which I mean enabling new content models that add value for users while compensating content creators appropriately. If you want to fault media companies, fault them for expecting third parties to make the R&D investment. (Now having said that, I happen to agree, and have said above, that using DRM to mimic physical products is bound to get you into trouble.)

  17. James,

    U.S. law does forbid hacking DRM; that’s what the three-year exception process is all about. Libraries would need to get an exception granted for the purpose of repackaging e-books in their own DRM for lending purposes. Both the U.S. law and the proposed Canadian law derive from a 1996 international copyright treaty, albeit one that was instigated by U.S. interests.

    Overdrive found a market as a white-label infrastructure that libraries could use to support digital lending. They could have built similar functionality themselves. In reality, there’s little difference from a technical perspective between what Overdrive provides and what libraries would do “on their own.” Apart from legitimate concerns over user interface glitches (raised by Thad McIlroy at the beginning of this discussion), the change necessary to enable smoother digital lending is a legal one (copyright vs. licensing), which I have explained. I defer to people who are more knowledgeable about Section 108 of the copyright law, but my view on this is that you could change 108 to give libraries the rights to do protected digital lending, but it would be much harder in practice than getting an exemption to the anti-hacking law for this purpose.

    – bill.

  18. […] “E-Book Lending: The Serpent in the Garden of Eden,” by Bill Rosenblatt, Copyright and Technology. […]

  19. […] Rosenblatt wrote a fantastic article, “E-Book Lending: The Serpent in the Garden of Eden“, explaining e-book lending from a licensing angle.  The only detail I’d like to […]

  20. Mark Taylor · ·

    Here’s how libraries can legally lend ebooks without having to abide by a publisher’s restrictions or licensing:

    1) Buy 2 hardcopy titles of a book.
    2) Destroy one hardcopy.
    3) Scan the first copy to replace the second that was destroyed.
    4) Lend the scanned copy to patrons.

    Libraries will need to implement some form of copy-protection scheme to prevent the patron from illegally copy the work. However, the library controls this, not the publisher. If the library wishes to loan out two copies simultaneously, then it will need to purchase and destroy an additional hardcopy.

    This method is legal because its the work that is copyrighted, not the media on which the work is conveyed. Note, if you purchase a hardcopy, and part of the book is destroyed, you can repair the book using materials of your choosing. You are not required to repair the book using the identical paper or materials that the publisher used.

  21. Mark,

    This sounds very clever, but unfortunately it does not pass muster with the law. From paragraph c of Section 108 (i.e. 17 U.S.C. § 108(c)), in replacing a damaged copy:

    • The library must “determine[] that an unused replacement cannot be obtained at a
      fair price”
    • “any such copy … that is reproduced in digital format is not made available to the public in that format outside the premises of the library”
  22. […] buy titles; they license e-books in order to license them to patrons, said Bill Rosenblatt of copyrightrightandtechnology.com.  “A license is a contract, the terms of which are ultimately up to the publisher.  Copyright […]

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