Note: The Tale of the E-Book: Library Lending’s Newest Edition

Imagine the scene.  As the last moments of sunlight filter through the partially drawn shade, a comfy armchair beckons while the winter’s fire sets the mood, its warm glow illuminating . . . . Wait a minute!  That glow is not coming from the fire.  It’s coming from an iPad loaded with the most recent New York Times bestseller!  Wait, what?  That doesn’t seem right.  Let’s try that again.  Picture this.  A dimly lit library hall, shelves lined with leather bound books, the smell of rich mahogany fills the air, and the Kindle Fire powers on, its screen displaying the latest Stephenie Meyer chicklit . . . . Hold up just one minute.  What’s going on here?  When did the trendy and cool realm of the techies’ hottest picks invade the tried and true world of the bespectacled bookworm?  Have the techno-gadget advancements introduced by innovators like Apple’s Steve Jobs and Amazon’s CEO Jeff Bezos roused an otherwise sleepy publishing industry?  With e-book sales skyrocketing throughout the consumer market, the answer would seem to be an enthusiastic “Yes!”  If that is the case, what is to come of the most traditional public face of the book industry, the public library, in this electronically driven world?

“[N]othing would do more extensive good at small expense than the establishment of a small circulating library in every county, to consist of a few well-chosen books, to be lent to the people of the county under regulations that would secure their safe return in due time.”[1]  In the 200 years since Thomas Jefferson wrote these words, even the most forward thinking of American pioneers could not have envisioned the vast potential of this “small circulating library.”[2]  Forget two centuries.  Just a few short years ago, the technology that may serve to launch the American library into a leading pop cultural position was disparaged as “going nowhere fast.”[3]  This potential springboard is none other than the e-book, of course.  This modern book format has not only reinvigorated an outdated publishing industry,[4] it has also provoked a tidal wave in the tranquil waters of an otherwise predictable library system.[5]

Virtual library branches have become routine.  They enable library patrons to forego that trek to the local library, in exchange for an online e-book checkout complete with all the comfort and ease afforded by a home computer.[6]  The combination of free lending and a dynamic e-book format is a novel phenomenon which has catapulted an unsuspecting public library system into the front lines of e-book battles between major players like publishing houses, authors, agents, and techno-manufacturers.  These battles have revived discussions over the Copyright Act.[7]  As library lending makes its most dramatic change in over 200 years with its sudden capacity to lend to patrons absent a visit to the premises, the effect on both the prominence of the public library and the e-book market will be systemic.[8]  The balance between the interests at stake may come down to which weighs more, the traditional hardcover embodied in and protected by the old style business model of publisher and author, or the e-reader as embraced by the unlikely ally of the public library.  This ongoing plot will surely be played out in the next best page-turner.

This Note will narrate the story of the e-book and the public library system.  It will position the evolution of these characters within their historical and legislative contexts, examine the legal doctrines that customarily structure this relationship, and address reasons for the ineffectiveness of these doctrines in the digital environment.  After comparing the competing interests of the two sides and identifying the parties’ current practices, this Note will analyze the appropriateness of creating a Digital First Sale Doctrine and suggest a solution to the current conflict between libraries and publishers.

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Marysia Wlazlo: Syracuse University College of Law, J.D. Candidate, 2013; Boston College, B.A., summa cum laude, 2008.