Over the past few years, E-readers, such as Amazon’s Kindle and Barnes and Noble’s Nook, have become very popular. It is not hard to understand the increased popularity of this technology. An E-reader is able to store a library’s worth of content and still be small enough to fit in a purse or briefcase. The software for many of these devices can also be downloaded onto an I-Pad or tablet, leading to an increased number of people reading digital books. Yet all this progress may have an unintended cost, namely the inability to lend a digital book.

Book lending is not a new concept. Yet, this right, that so many take for granted, was not given to us through the generosity of publishing companies and copyright owners; rather, it was the courts who gave consumers this ability through the development of the “first sale” doctrine. The first sale doctrine states that when a consumer purchases a legitimate copy of a protected work from the copyright owner, the consumer owns that particular copy and is able to sell and distribute that one particular copy as he or she wishes. In other words, the first sale doctrine is what allows one to sell old movies and books at a garage sale or lend them to a friend. This practice may be coming to an end as digital books slowly replace paper books.

There are two basic problems the first sale doctrine faces with the growth of digital content. The first major issue is technological. Imagine that you want to lend a book on your Kindle to a friend. In order to lend that book to your friend, a copy of the book must be made. This copying of the file containing the book is a violation of the copyright act. In the context of a physical book, this would be similar to photocopying the book and then giving this new and illegal photocopy to your friend. Many of the major companies involved in the digital book and E-reader industry have addressed this issue through modifications in their software, but unlike the first sale doctrine, this form of lending is at the mercy of book publishers and distributors.

The second basic problem surfaces with the notion of ownership. One of the key components of the first sale doctrine is that the consumer owns the legitimate copy of the copyrighted work. Once the consumer owns the copy, he or she is able to use, lend or sell the copy as he or she sees fit. However, not all sellers of digital content are actually selling the ownership rights to the digital copy of the book or movie; instead, the seller sells a license to view the digital content. This license will enable the consumer to view the digital content an unlimited number of times, but since it is only a license, the consumer does not own the copy. Since the consumer does not own the copy, he or she cannot resell or distribute the copy without violating the user agreement with the company and the copyrights of the copyright holder.

The law, like technology, is always changing to meet the demands of everyday life. The first sale doctrine is probably not going to come off the books, but it may need to be amended due to the rise of E-readers and digital books, and the technological and legal wrinkles they bring to the forefront.

Until then, be wary of your actions - they may violate the law.

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Written By:
Attorney Tori L. Kluess

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