Know Your Rights

Fair Use and 17 U.S.C. § 108(e)

Lending digital books may already be legal without having to enter into exploitative ebook licensing agreements. 17 U.S.C. § 108(e) allows a library to make a digital copy of an entire work in its collection for a patron if the library has determined after a “reasonable investigation” that a copy of the work “cannot be obtained at a fair price.” Both phrases are ambiguous, especially because there is virtually no case law interpreting section 108, so their meaning will likely rely on case-by-case analysis.

Most ebooks, which often come with restrictive and expensive licensing terms, cannot be “obtained at a fair price” because “license” and “obtain” are not the same legal concept. “Obtain” indicates a permanent transfer of possession. A license, on the other hand, only grants temporary access to an ebook. Even the U.S. Copyright Office has conceded that “obtain” probably doesn’t include ebook licenses. Therefore, a court may find that, if ebooks are only available through a license and therefore cannot be obtained, no price can be deemed fair!

Libraries Have Enhanced Rights to Copy

In order to use section 108(e) to its full extent, libraries must first digitize physical books in their collections. Because section 108 doesn’t affect fair use rights under section 107, libraries can combine their rights under both sections. The fair use doctrine could enable libraries to make a “reserve” digital copy of every book in its collection. Once the library has its legal, fair-use digital copy, it can create a new copy to deliver to the patron under section 108(e).

Lend by the Book

Even if copies made under section 108(e) satisfy the “obtained at a reasonable price” requirement, there are four other statutory requirements:

• The copy created from the fair use digital copy must become property of the patron.
• The library cannot have any notice that the copy will be used for purposes other than private study, scholarship, or research.
• The library must display a copyright warning prominently where orders are accepted.
• Libraries cannot engage in “systematic reproduction.” This likely applies only to copies made under section 108(e), not reserve digital copies created under the fair use doctrine. No patrons or other libraries may receive copies in “such aggregate quantities as to substitute for a subscription to or purchase of such work.” Keep track of who is receiving what content to ensure that no one is trying to game the system.