Copyright is a fairly complicated area of the law that affects librarians in multiple ways. Whether helping an instructor with a course pack or trying to understand the licensing agreement on a piece of software or a Kindle, librarians need to understand at least the basics of copyright law. See the following video for an easy-to-follow overview of the subject (copyright basics at the CCC):
Archive for December 9th, 2009
09
Dec
09
Copyright: What You Need to Know
Are you confused about Digital Rights Management? Do you wonder what DRM is all about? Take a look at this short (minute-and-a-half long), but informative video:
“Day by day and almost minute by minute the past was brought up to date. In this way every prediction made by the Party could be shown by documentary evidence to have been correct; nor was any item of news, or any expression of opinion, which conflicted with the needs of the moment, ever allowed to remain on record. All history was a (palimpsest), scaped clean and reinscribed exactly as often as was necessary.”
~ George Orwell, 1984, Book 1, Chapter 3 ~
Is digital publishing a good thing? A bad thing? A little of both?
Digital publishing allows information to be released quickly and disseminated widely. This can be both a blessing and a curse. Information that can be released quickly can also be deleted quickly. For instance, in July 2009, Amazon used a backdoor technology to delete purchased copies of George Orwell’s 1984 and Animal Farm from users’ devices. A Michigan teen sued the company after losing all of the notes that he had taken for his thesis. You can see more about this by visiting the following URL: http://www.foxbusiness.com/search-results/m/25662986/kindle-ate-my-homework.htm. With this level of control over content, what is to stop a company (or even a government for that matter) from simply deleting any material with which it disagrees? Some might argue that it would be impossible to make such information vanish on a medium as public and diffuse as the Web, but there is some evidence that it can happen. See the following article written by Newsweek reporter, Charla Nash: http://blog.newsweek.com/blogs/thehumancondition/archive/2009/11/13/charla-nash-on-oprah-what-happened-to-winfrey-s-chimp-lady-gaffe.aspx.
With digital publishing, information can also be hacked and distributed to unintended recipients. Take for example the announcement made yesterday that a secret manual produced by the Transportation Security Administration had been leaked on-line. This 93-page manual contained information regarding how often bags are checked for explosives, provided photographs of special identification cards, and showed examples of law enforcement and official credentials for federal air marshals, CIA officers, and members of Congress. See the following URL for more information: http://www.cbsnews.com/stories/2009/12/08/eveningnews/main5942088.shtml. A key piece of national security data is now freely available on the Internet for any would-be terrorist or criminal to exploit. While it is true that print materials can also be copied and distributed to unwanted parties, doing so is considerably more difficult.
The Kindle is an electronic book reader that allows individuals to download digital content and to read it on the device. More specifically, the Kindle “is a portable electronic reading device that utilizes wireless connectivity to enable users to shop for, download, browse, and read books, newspapers, magazines, blogs, and other materials . . . .” (Amazon Kindle License Agreement, 2009, para. 1)
Since the Kindle first debuted in 2007 several libraries have decided to lend the device as a service to their patrons. For instance, the Sparta Public Library in New Jersey began lending Kindles in 2007, complete with content loaded onto the devices. (Oder, 2007, para. 1) Patrons were able to borrow a Kindle for one week at a time and to select one book apiece to upload from the Kindle shop. (Oder, 2007, para. 3) Many additional libraries throughout the country followed suit, including Brigham Young University in Utah, the Criss Library at the University of Nebraska-Omaha in Nebraska, the Howe Library in New Hampshire, and The Frank L. Weyenberg Public Library in Wisconsin. (Oder, June 2009, para. 1-2; Oder, April 2009, para. 4; Benson, 2009, para. 1)
While lending Kindles has proven to be a hit with library users, there remains some question as to whether doing so violates Amazon’s Terms of Use Agreement. Officially, Amazon has apparently indicated that lending a Kindle is a violation of the user agreement. (Oder, June 2009, para. 2) However, many libraries have been lending the devices for almost two years without adverse consequences. (Oder, June 2009, para. 2)
It appears that Amazon has been inconsistent in its stance on libraries lending the ebook reader. For instance, while the Howe Library has reported that it has contacted Amazon customer support and received verbal permission to loan the Kindle devices (Oder, April 2009, para. 1), Amazon spokesman Drew Herdener told a Library Journal staffer that Amazon policy prohibits “library lending, but ‘we don’t talk about our enforcement actions.’” (Oder, April 2009, para. 2)
In addition, while the Frank L. Weyenberg Public Library “has received written verification from Amazon” (Benson, 2009, para. 15) that they may circulate the Kindle, and Brigham Young University (BYU) has “received verbal permission from an Amazon rep.” (Oder, June 2009, para. 2) that it may do the same, BYU has suspended its Kindle lending program until it can get written confirmation that it is not doing anything illegal. (Oder, June 2009, para. 1)
In contrast, the librarians of the Criss Library at the University of Nebraska-Omaha (UNO) continue to lend Kindles to library patrons despite the legal uncertainty involved. (Oder, June 2009, para. 2) They do so under the belief that they are not violating the terms of use agreement. (Oder, June 2009, para. 3) Joyce Neujahr, director of patron services at UNO, explains their reasoning as follows: “We have purchased the content on the Kindle, and loan the Kindle just like we loan a hardcover, print book. The difference is where that purchased book resides. Whether it is on a shelf, or on a Kindle, we have still purchased the title.” (Oder, June 2009, para. 3) UNO law professors did not dissuade the library from lending the Kindles, as they “agreed that the terms of use seem to bar only profit-seeking efforts to distribute the digital content to a third party.” (Oder, June 2009, para. 4)
Legally, there seem to be two separate issues in play in this debate. First, is the issue of whether it is okay for libraries to lend the Kindle itself. Second, is the issue of whether it is okay for libraries to lend the digital content located on the Kindle device. To understand these issues it is first necessary to know a little bit about property law.
Property can be divided into two broad categories: real property (“realty”) and personal property (“personalty”). Real property is basically concerned with land and those things permanently attached to the land. (Black’s, p. 1234) Personal property (sometimes also called “chattel”), on the other hand, involves property that can be moved. (Black’s, p. 1233) Personal property can be further subdivided into two sub-categories: tangible personal property and intangible personal property. Tangible personal property is movable property that can be touched and felt. (Black’s, p. 1234) Examples of this type of property would be animals, furniture, clothing, jewelry, artwork, books, etc. Intangible personal property is moveable property that cannot be physically touched or felt (e.g., “property that lacks a physical existence”). (Black’s, p. 1233) Examples of this type of property would be money, stocks, bonds, copyrights, trademarks, and patents.
The law is clearly defined in regards to tangible personal property. A person who owns and has possession of a fax machine, for example, has the right to use, sell, lease, lend, and even destroy it. These rights derive from the legal concept of possession. “Possession is a property interest under which an individual is able to exercise power over something to the exclusion of all others. It is a basic property right that entitles the possessor to (1) the right to continue peaceful possession against everyone except someone having a superior right; (2) the right to recover a chattel that has been wrongfully taken; and (3) the right to recover damages against wrongdoers. Possession requires a degree of actual control over the object, coupled with the intent to possess and exclude others.” (Burke) Being that a Kindle is much like a fax machine, or a camcorder, or any other type of electronic gadget, there is no legal impediment to a library doing whatever it wants with the device once they have purchased it. Consequently, Amazon would most likely not have a valid cause of action against a library for loaning a Kindle with no digital content on it.
Unfortunately, the law is not quite as clear when it comes to the rights regarding intangible personal property. The digital content on a Kindle would constitute intangible personal property in that it is copyrighted material. While an exception to the copyright law known as “the first-sale doctrine” normally protects owners of physical books and CDs from claims of copyright infringement, the adoption of digital media and the implementation of digital rights management programs have made it more difficult to use this exception.
The first-sale doctrine is “the rule that a copyright owner, after conveying the title to a particular copy of the protected work, loses the exclusive right to sell that copy and therefore cannot interfere with later sales or distributions by the new owner.” (Black’s, p. 650) It is under the first-sale doctrine that owners of books, CDs, and DVDs are able to loan their copies of these materials to friends and family. While this is quite easy to do with a physical copy of a book, the matter becomes more complicated when the medium is digital in nature. As Francine Fialkoff notes in her editorial, To Kindle or Not: “libraries appear to be able to lend the device itself, but its content is locked up in its shrink-wrapped Terms of Service, which prohibits distribution to a third party. That means that whatever ebooks the library buys for it can’t be loaned. The Kindle is further limited by the proprietary nature of the software itself: ebooks purchased for a single Kindle can’t be transferred or shared, a deterrent for consumers as well.” (Fialkoff, para. 3)
While “most of us take for granted that books can be bought, sold, lent out and passed on . . . . according to Amazon, Kindle books are different. Customers never actually buy a digital copy. Instead they buy only a limited license to read that book in digital form. Amazon can revoke that license at any time and for any reason” under the Kindle Terms of Use. (Seringhaus, para. 5 & 7) The consequences of this became apparent in a somewhat dramatic fashion in July 2009 when “Amazon wirelessly reached into thousands of Kindle electronic reading devices and removed certain customers’ books.” (Seringhaus, para. 1) Ironically, the books that Amazon deleted were copies of George Orwell’s 1984 and Animal Farm. (Seringhaus, para. 1)
At this point in time, the legalities of lending Kindle devices containing licensed digital content are still unclear. Under the circumstances, libraries may want to take one of two approaches to solving this dilemma. For the more risk averse, it would make sense to contact Amazon to request written confirmation that it is permissible to lend the Kindles and the related ebooks. For those less worried about potential legal liability, it may make sense to take the “it is better to beg forgiveness than to ask permission” approach and to hope for the best. While the writer of this post is not advocating the latter approach, it is one possible way of addressing the Kindle lending issue. Ultimately, it behooves libraries to remember that Amazon has the power to simply delete content from library Kindles if it does not approve of libraries lending the devices.
REFERENCES
Amazon Kindle: License Agreement and Terms of Use (Last updated: February 9, 2009).
Retrieved from http://www.amazon.com/
Benson, D. (2009, March 21). Mequon library Kindles interest in digital device: Weyenberg is
the first in Wisconsin to loan out reading gadget. Milwaukee*Wisconsin Journal Sentinel.
Retrieved from http://www.jsonline.com/
Black’s Law Dictionary (7th ed. 1999).
Burke, B. (2003). Personal Property in a Nutshell, 3rd Ed. St. Paul: West.
Fialkoff, F. (2008, March 1). Editorial: To Kindle or Not. Library Journal. Retrieved from
http://www.libraryjournal.com/index.asp?layout=articlePrint&articleID=CA6533029
Oder, N. (2007, December 13). A New Jersey Library Starts Lending Kindles. Library Journal.
Retrieved from http://www.libraryjournal.com/
Oder, N. (2009, April 7). Mixed Answers to “Is It OK for a Library To Lend a Kindle?” Library
Journal. Retrieved from http://www.libraryjournal.com/
Oder, N. (2009, June 17). At BYU, Kindle Program on Hold, But University of Nebraska-
Omaha’s Program Going Strong. Library Journal. Retrieved from
http://www.libraryjournal.com/
Seringhaus, M. (2009, August 5). Kindle: How to Buy a Book but Not Own It – a Commentary
by Michael Seringhaus ’10. The Hartford Courant. Retrieved from
Biblio-Tech! by Annie & Elly 