In the category of “new products, new problems” copyright for e-books might not rank terribly high, but the relative lack of attention doesn’t mean that there aren’t underlying issues that need to be resolved, lest they come to a head. As with other creations of its type, it’s a new iteration on a very old product, and that fundamental alteration either renders moot old questions or raises entirely new ones. Copyright law as it applies to books was written at a time when the process and resources involved in creating books places constraints upon the number of books that could be printed and then sold. So what happens with e-books, which can theoretically be sold or lent ad infinitum, with the only limits being hard drive space?
Mike Masnick of Techdirt comes to this issue in reporting on Amazon’s refusal to let libraries lend their e-books. As he notes, while you’re not wrong to be upset with Amazon over their decision, save some of your opprobrium for the now-dated copyright law that inadequately accounts for the wholly new phenomenon of e-books.
For as much as we might think of libraries as relatively complicated institutions (blame the Dewey Decimal System) they’re relatively simple if you zoom out to a treetops-level view: they buy books, and they’re able to lend those books out to patrons for years to come because of the first sale doctrine. What this doctrine entails is the ability of a purchaser to do more or less what they want with that particular copy of the book, provided that they aren’t violating the rights of the copyright holder. In short, lending is OK, copying and printing your own version of the book is not.
You might think that same principle extends to what is a digital version of the same thing, but as Masnick points out, the courts have this far failed to uphold first sale when it comes to e-books or other digital or software products. What exactly is the difference between the two products that explains the difference in how the court applies first use? It’s an excellent question, and one that likely doesn't have an answer that would be satisfying. It’s not as though libraries are buying one copy and then creating hundreds more to lend out, thus depriving publishers of revenue; they’re buying the books and lending then out according to supply, as they would with any type of book.
It’s easy to believe that publishers aren’t fans of libraries on principle, and that it’s easier to fight about e-books than the existence of libraries, but for the sake of libraries and all those who depend upon them, it would be nice to see the laws updated for the 21st century and applied fairly across the board.