A recent decision by Tor/Forge Books to make their e-books available without DRM caused something of a stir in the book publishing world. Tor/Forge is the largest science fiction/fantasy publisher in the world.  Although Amazon and other major e-book retailers allow publishers to decide whether they want to use DRM or not, most commercial publishers use it.

This led to some speculation on Library Journal’s TheDigitalShift website about whether Tor will still require DRM for library e-lending, where I said that retail and library lending are two completely different channels, and if a publisher drops DRM for retail, it probably has no bearing on whether it will drop DRM for e-lending.  Indeed, the tech publisher O’Reilly & Associates is known for its anti-DRM stance but uses DRM in e-lending (and uses a form of watermarking in its downloadable PDFs).

In fact, Tor’s official policy on library e-lending is not to allow it at all, because its corporate parent Macmillan (one of the “Big Six” trade publishers) doesn’t allow it.  But what would happen if a library purchased a Tor e-book and made it available for lending?

First of all, that’s not how the vast majority of public library e-lending works.  Public libraries use OverDrive’s system, which is a “white label” service that packages e-books in DRM and handles all of the aspects of the website and lending.  (OverDrive currently offers a choice between the Mobipocket DRM for Kindles and Adobe DRM for just about everything else.)  So OverDrive would have to make the DRM-free e-book available, and that’s not how its system works .  In other words, libraries tell OverDrive which titles they want and pay for them, then OverDrive does the rest.

Secondly, even if a library ran its own system (which a handful do, such as the Douglas County public library system in Colorado), it would be violating the Terms of Service of the retailer from which it bought the DRM-free e-book.  That gets us back to the legal concept of Digital First Sale.

The concept of First Sale (known outside the United States as “exhaustion”) in copyright law says that once you lawfully obtain a copyrighted work, you can do what you want with it: sell it, lend it, throw it away, etc.  The applicability of First Sale to physical media products is straightforward, but its applicability to digital downloads, such as e-books, is as clear as mud.  The U.S. Copyright Office was asked for an opinion on Digital First Sale over ten years ago; its 2001 report essentially said “Not now, maybe later.”

Digital First Sale is currently a rather arcane topic in copyright law, but a showdown over the concept may be coming soon.  E-reading is exploding in popularity, and publishers in certain genres (at the moment, mainly science fiction and tech, i.e. genres for tech-savvy readers) are DRM-free.

The third development that may lead to a Digital First Sale showdown is a project at the Berkman Center for Internet and Society at Harvard called the Digital Public Library of America (DPLA).  Remember all those millions of e-books that university libraries digitized for Google, which led to publishers’ and authors’ huge lawsuit against Google — which is still unresolved?  The DPLA intends to aggregate them — as well as other sources of material, such as the Internet Archive — and put them to use at the service of public libraries nationwide.

The DPLA is expected to launch next year.  The current plans are still taking shape, but it seems clear that it needs Digital First Sale in order to have any impact at all; otherwise publishers can continue to forbid e-lending, and DPLA won’t have much content to offer other than public domain material that’s available for free anyway.

As I’ve said before, the forces arrayed against Digital First Sale are formidable: they include authors, publishers, and retailers.   For example, the DPLA’s proposal to make works available that are at least five or ten years old seems like it will meet stiff resistance from all of those camps.  But there are few (if any) entities on earth better equipped to fight for Digital First Sale than Berkman Center, with its Harvard Law professors and its corporate sponsorship from the likes of AT&T, Google and Microsoft.  In fact, if and when the showdown over Digital First Sale comes, it will be interesting to see what side of the issue Google takes — as both a beneficiary of looser copyright laws and an e-book retailer.