The Washington Post tech columnist Geoffrey Fowler recently had a very interesting article about how Amazon won't allow the ebooks it publishes to be lent out from libraries. As someone who regularly borrows ebooks from my local libraries, I find this disappointing -- especially since, as Fowler notes, Amazon really is the company that made ebooks popular. But, when it comes to libraries, Amazon won't let libraries lend those ebooks out:
When authors sign up with a publisher, it decides how to distribute their work. With other big publishers, selling e-books and audiobooks to libraries is part of the mix — that’s why you’re able to digitally check out bestsellers like Barack Obama’s “A Promised Land.” Amazon is the only big publisher that flat-out blocks library digital collections. Search your local library’s website, and you won’t find recent e-books by Amazon authors Kaling, Dean Koontz or Dr. Ruth Westheimer. Nor will you find downloadable audiobooks for Trevor Noah’s “Born a Crime,” Andy Weir’s “The Martian” and Michael Pollan’s “Caffeine.”
I've seen a lot of people responding to this article with anger towards Amazon, which is understandable. I do hope Amazon changes this policy. But there's a much bigger culprit here: our broken copyright laws. In the physical world, this kind of thing isn't a problem. If a library wants to lend out a book, it doesn't need the publisher's permission. It can just buy a copy and start lending it out. Fowler's correct that a publisher does get to decide how it wants to distribute a work, but with physical books, there's the important first sale doctrine, which lets anyone who buys a book go on and resell it. And that meant that in the past, libraries have never needed "permission" to lend out a book. They just needed to buy it.
Unfortunately, courts seem to take a dim view of the first sale doctrine when it comes to digital goods.
However, a few years back, some very smart librarians and copyright professors and experts got together and created a system called Controlled Digital Lending (CDL), which aimed to (1) rectify this massive gap in public access to knowledge while (2) remaining on the correct side of copyright law. In its most basic form, CDL, involves libraries buying physical copies of books (as they did in the past), scanning those books (which has already been ruled to be fair use for libraries) and then lending out that digital copy only if they had the matching physical copy on the shelf. As the libraries and copyright experts correctly note, it's difficult to argue that this is any different than lending out the copy of the book that they bought.
But, of course, publishers have always hated libraries' ability to lend out books in the first place -- and have been itching to use the power of copyright to block that. Already, they charge libraries insanely high prices for ebooks to lend, and put ridiculous limits on how those books can be lent.
So, no surprise, last year, in the middle of a once-in-a-century pandemic, the publishers sued the Internet Archive, arguing that its Open Library project, which runs based on the CDL principles, violated copyright law. And, incredibly, a ton of people have cheered on this nonsense lawsuit -- even those who hate Amazon.
Yet, if you really want to stop Amazon from being able to block libraries from lending out ebooks, there's a simple answer: fix copyright law. Make it clear that Controlled Digital Lending is legal. Or, go even further and say that the First Sale Doctrine also applies to digital goods, as it absolutely should.
