Library Journal posted an article about the mixed response from Amazon over whether a library can lend a Kindle device with books loaded onto it. An Amazon sales rep said “yes,” Amazon officials said “no,” but the law may say otherwise.
The first sale doctrine is a copyright defense, codified in 17 USC 109, which basically allows an owner of a lawfully made copy or phonorecord (and other tangible media) to sell or otherwise dispose of it, as well as display it to the public. This allows purchasers of a video game, DVD, or other medium to sell it on e-Bay or to a GameStop. Software companies (and others) try to circumvent this defense by describing the purchase of their products as a “license” rather than a “sale” issuing license agreements and terms of use (“LATU”) to prevent resale of an item, but courts have disagreed with their enforceability.
In Amazon’s LATU there are explicit terms about the digital content on the device, but not the physical device itself. The language from Section 3, Digital Content reads as follows (emphasis added):
Use of Digital Content. Upon your payment of the applicable fees set by Amazon, Amazon grants you the non-exclusive right to keep a permanent copy of the applicable Digital Content and to view, use, and display such Digital Content an unlimited number of times, solely on the Device or as authorized by Amazon as part of the Service and solely for your personal, non-commercial use. Digital Content will be deemed licensed to you by Amazon under this Agreement unless otherwise expressly provided by Amazon.
This language speaks to the digital content – not the device. Amazon understands that the first-sale doctrine clearly prevents them from restricting transfer of the device, but that the gray area of the license agreements allows them some latitude here. When drafted, Amazon likely sought to prevent a Napster situation, with users trading titles and diluting the market for content.
Now the idea of public libraries owning and lending Kindle devices is a great one. It has the potential to create a revolution in e-Books and catapult Kindle to the status of an iPod – it can very well be the paradigm shift Amazon is banking on. In fact, it seems like a win/win for Amazon: more public exposure to Kindle = more sales of device and content, and by putting the devices in libraries Amazon breaks through the tek-elite barrier. I have yet to purchase or play with a Kindle b/c of the high price point and unavailability despite being an early adopter (when I have the cash for it).
But take it a step further: what if there were ways to ensure that a library could “lend” a Kindle file and then have it “returned” by the borrower?
Amazon would sell catalogs of titles to the 123,000 libraries in the United States (mix of public, school, governmental, etc.). Those libraries would have tables of Kindle devices set up for public use (more device sales for Amazon). They would offer file borrowing via library websites or even in the physical building (beaming or loading via docking station). The file would have copy prevention and device tracking enabled. It could also work like digital download rentals, which expire after a certain period of time. If a person wanted to prevent expiration they could request an extra period of time with it, but longer than that they pay a small fee (digital late fees). A user who likes the book so much can click to purchase from the library. The library would make money (via the first sale doctrine) on that legally purchased copy, and can automatically order another copy from Amazon to keep their “stock” current. Not to mention, this would allow Amazon to target users for direct sales based on their borrowing habits. This could be the future – much like the ELF’s idea for “collecting societies” of digital recordings.
Amazon, think about it – do you want to clutch to an old-world model, or do you want to build something better than iTunes?
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Finally – someone who gets it. I would gladly buy a Kindle (or B&N’s new reader) IF I could borrow eBooks from my library. If not – I will not pay to buy eBooks I can borrow for free from my library. If Amazon and/or B&N don’t address this they’ll be missing a huge opportunity.
Definitely agree with you Joe – the Kindle is a high priced piece of luxury tech (not a must have). While I love my Kindle app on the iPhone, I have only purchased 1-book for it since downloading 3-months ago, and I haven’t even finished that book. Perhaps I’m more old school than I think in that I prefer a hard copy book. There’s something about reading a tangible piece of literature that doesn’t seem to translate as well to e-book (I don’t feel the same about white papers, articles, or technical manuals). Like you say, Amazon and B&N should address the e-book lending market; there is a huge opportunity there to drum up interest in the device and create the paradigm shift they need for e-books to succeed.