Digital Millennium Copyright Act (DMCA)
Comments of the Library Associations
Before The Library of Congress, The United States Copyright Office and The Department of Commerce, National Telecommunications and Information Administration
Inquiry Regarding Sections 109 and 117
Docket No. 000522150-0150-01
August 4, 2000
Comments of the Library Associations
We file these comments to the Copyright Offices Inquiry on behalf
of five major library associations, the American Library Association,
the American Association of Law Libraries, the Association of Research
Libraries, the Medical Library Association, and the Special Libraries
Association (the "Libraries"). These associations represent
the interests of tens of thousands of libraries, librarians and institutions,
as well as their public and private patrons.
Section 104 of the Digital Millennium Copyright Act ("DMCA")
directs the Register of Copyrights and the Assistant Secretary for Communications
and Information of the Department of Commerce to submit a report to the
Congress by October 28, 2000, evaluating the effects of the amendments
made by title 1 of the Act and the development of electronic commerce
and associated technology on the operation of sections 109 and 117 of
title 17, United States Code, and the relationship between existing and
emerging technology and the operation of those sections.
The Libraries believe there are unsettling trends undermining the Constitutional
and legislative balance between incentives to create works and the public
access to ideas and content that require federal review and action. Consumers
obtaining digital works are routinely required to assent to contract terms
that require waiver of long-standing limitations on the exclusive copyright
rights, including the first sale doctrine, fair use and preservation.
While copyright policy supports a digital first sale doctrine, the current
state of the law post-DMCA permits diminished use of the doctrine, impeding
the free flow of information and libraries ability to provide public
access to digital works. The Copyright Office should use this inquiry
as the platform from which to urge Congress to take meaningful steps to
clarify the terms of a digital first sale doctrine to ensure that state
laws and contractual terms that unduly restrict the rights of information
users do not preempt federal copyright policy.
Introduction: The Role of the First Sale Doctrine In U.S. Copyright Law
The balancing of incentives to create and provide public access to ideas
and content is fundamental to U.S. copyright policy. See, e.g. Twentieth
Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975). The Constitution
empowers Congress to enact copyright legislation for the specific purpose
of "promot(ing) the Progress of Science and the useful Arts, by securing
for limited Times, to Authors and Inventors, the exclusive Right to their
respective Writings and Discoveries." U.S. Const., art. I, §
8, cl. 8. Pursuant to that public purpose, the Copyright Act grants to
authors the exclusive right to distribute copies of their work, 17 U.S.C.
§106(3), but limits that right by distinguishing between ownership
of a copyright (the bundle of exclusive rights granted an author) and
ownership of a copy (the tangible material in which a work is fixed),
17 U.S.C. §202, and by extinguishing the copyright owners distribution
right upon the first sale of each copy, see 17 U.S.C. §109. Of course,
no copyright exists in government works, nor in facts or data.
The limitation of the distribution right to the first sale, as codified
in Section 109 of the 1976 Act, was intended to continue the first sale
doctrine established by decisions under Section 27 of the 1909 Act. The
treatment of the first sale doctrine by U.S. courts has consistently reflected
the belief that the public benefit derived from the alienability of creative
works outweighs the increased incentive to create that would stem from
granting authors perpetual control over copies of a work. Burke &
Van Heusen, Inc. v. Arrow Drug, 233 F. Supp. 881, 884 (E.D.Penn. 1964);
Blazon, Inc. v. Deluxe Game Corp., 268 F. Supp. 416, 434 (S.D.N.Y
1965) (quoting Nimmer, Copyright, §103.31 at 385 (1963) for the proposition
that "[after the first sale], the policy favoring a copyright monopoly
for authors gives way to the policy opposing restraints of trade and restraints
on alienation."); See, e.g., C.M. Paula Co. v. Logan, 355
F. Supp. 189, 191 (N.D. Tex. 1973) (same). The balancing approach to the
doctrine was recognized by the Supreme Court early this century. See
Bobbs-Merrill Co. v. Straus, 210 U.S. 339 (1908). The Libraries believe
that recent developments surrounding distribution practices involving
digital works undermine this constitutionally crafted balance.
Questions Regarding Section 109
(a) What effect, if any, has the enactment of prohibitions on circumvention
of technological protection measures had on the operation of the first
The DMCAs enactment of prohibitions on circumvention places criminal
penalties on top of contractual restrictions, thereby increasing publishers
ability to control access to works. The public, which enjoys use and lending
rights with respect to works that were subject to the first sale doctrine
because they were purchased outright, now faces licensing and legal barriers
to private as well as public lending and use. While content owners contend
that technological measures merely control unlicensed access and prevent
piracy, as the Libraries explained in comments and testimony in the Section
1201 rulemaking proceeding, many measures currently in use or development
blur control over initial access with control over library lending and
fair use practices such as viewing, reading, extracting, copying and printing.
These measures may also allow copyright owners to control use and disposition
of copies of digital works long after the copyrights have passed into
the public domain. The same concern applies to those who seek to regulate
access to digital versions of government works . This unlimited control
is contrary to the core principle of the first sale doctrine.
Americas libraries have long been among the nations largest
volume-purchasers of copyrighted works. Libraries and their staffs are
also diligent law abiders. They understand and adhere to the balance that
the Constitution and copyright law have struck between the rights of copyright
owners and users. However, recent adoption of legislative changes in the
DMCA has reinforced a view of the legal environment that makes sharing
of certain digital works suspect. It must be stressed that from the Libraries
perspective, fair use, preservation and the first sale doctrine are as
important in a digital environment as they are in the print world.
Technological measures, augmented by the threat of criminal sanctions
for circumventing those measures, permit publishers to control uses in
new and unprecedented ways. Publishers can now block a lawful licensees
access to digital content by activating a control and device embedded
into the code. While the law prohibits sale of devices designed to circumvent
technological protections, and certain individual practices will be prohibited
commencing October 28, 2000, the mechanisms may be activated without regard
to whether the conduct at issue is infringing. License restrictions on
what would ordinarily be fair use, permissible dissemination under the
first sale doctrine or allowable preservation, may ultimately be enforced
through these measures. Moreover, one patrons misuse may be used
as the pretext for foreclosing access not just to the offending individual
but to all authorized users, to the publics detriment. For example,
one university recently had several services turned off by the vendor
because of "unusual patterns of use" (i.e., excessive searches
and downloads) by one individual.
Technological measures also impact on a librarys ability to implement
customized systems for ensuring compliance with license terms. When works
are owned outright and are subject to the first sale doctrine, a library
is able to exercise managerial discretion over the lending and use of
its materials. In a publishing world dominated by digitally controlled
works, libraries are forced to comply with one-size-fits-all technological
enforcement measures that sometimes result in delays and diminished access
by patrons. For example, access controls based on shared passwords have
already proven problematic for some libraries. According to one university
librarian, "We have gone to great lengths to organize and maintain
a myriad of passwords to give to off-campus users. Passwords are getting
to be a nightmare; I have pages of them." Licenses that limit access
to students registered at a university, for example, may also impede full
utilization. These licenses are frequently administered according to users
domain names, which may prevent libraries from making works available
to visiting professors, scholars and community members with access to
the library. Distance education users who are covered by the license but
who attempt to log in from distant IP addresses also face severe and often
impassable technological hurdles.
Technological measures that limit the machines from which a digital work
can be accessed are another common impediment to full utilization of licensed
resources. A recent survey by the Libraries of the impact of technology
disclosed that many databases are available on only one computer in a
library, which means that only one user can dial in at any given time.
For example, the Nature web site bundles together several journals
online that are password protected. Only one individual can use the site
at any given time. This means that even though all the journals were lawfully
acquired, a single patron using just one of the purchased works effectively
blocks use of all the other journals available on the site. In the print
format, each issue could be simultaneously used by separate users. There
is no copyright rationale for preventing multiple users from accessing
different journals at the same time, yet the technological measure and
prohibition on circumvention of that measure enforce the restriction.
The blurring of distinctions between lawful access and use was not the
intent of Congress when it passed the DMCAs anti-circumvention provisions.
The DMCA and its legislative history indicate that the prohibitions were
not to affect other rights, remedies and limitations in the Act. See 17.
U.S.C. §1201(c)(1). However, any reservation of these rights is moot
if it remains illegal for a library or a user to circumvent technological
measures in order to use the underlying works in ways that have traditionally
been permitted under the first sale doctrine, fair use and preservation.
In light of these developments, the Libraries urge copyright reform to
reaffirm and assure their ability to lend digital works in the public
interest and to facilitate uses of those works that are consistent with
traditional copyright law principles.
(b) What effect, if any, has the enactment of prohibitions on falsification,
alteration or removal of copyright management information had on the operation
of the first sale doctrine?
Copyright Management Information ("CMI") technologies such
as "digital watermarks," "digital signatures," and
"digital object identifiers" do not by themselves prevent access
to a digital work, but they do give content owners an unprecedented ability
to track ongoing use of digital works. Despite Congressional efforts to
protect privacy in the DMCA, CMI technologies allow publishers to monitor
who is looking at a work and exactly what the users are doing with it.
Deployed in conjunction with access controls, CMI technologies impose
unprecedented limits on and accountability for a librarys ability
to lend and make fair use of lawfully acquired digital works.
Digital publishers now have the ability to manage the kind of day-to-day
operational decisions that were previously within the discretion of libraries.
Previously, as owner of a particular copy of a book, a library was entitled
to set the terms of patron access to that copy; as licensee of a digital
work subject to technological measures, the library may be denied such
right. The inability to establish uniform usage procedures will become
increasingly problematic as the number of licensed works proliferates.
Libraries are already finding it difficult to keep track of and interpret
varying contract terms. In light of the accountability imposed by CMI
and the criminal sanctions associated with circumvention, many individual
librarians are understandably reluctant to make the fair use judgment
calls that previously were standard management decisions or expose patrons
to the new sanctions. Where uncertainty about permissible use exists,
liability concerns may lead librarians to forego uses that are actually
permitted under license and the law. According to one university librarian,
"Technological devices such as watermarking have affected interlibrary
loan, class reserve, and classroom use in the application of fair use.
Electronic journals are still available in print versions so interlibrary
loan and reserves are still possible. But when publishers start eliminating
print versions, such electronic restrictions will be a significant problem
unless electronic versions are treated just as print versions where fair
The combination of technological measures and CMI systems also gives
information publishers an unsettling ability to track individual intellectual
inquiry in ways that would not have been permissible traditionally under
the first sale doctrine. To the extent that the first sale doctrine ensures
individuals and libraries right to share and lend lawfully
owned copies of a copyrighted work, the doctrine facilitates the exchange
and intellectual collaboration that is central to the First Amendment
"marketplace of ideas." Mindful of the accountability imposed
by CMI, libraries are asked to comply with licensing terms that effectively
restrict the time, place, and duration of private intellectual engagement.
Intellectual inquiry is especially threatened when CMI technologies are
deployed in conjunction with access blocks. According to one library system:
"Some journals from the American Chemical Society request that they
be allowed to send cookies to users workstations to
monitor use. When users refuse this invasion of privacy, they are denied
access at their workstations even though the organization has a subscription."
Even though the definition of CMI in the DMCA specifically excludes "any
personally identifying information about a user of a work or of a copy,"
17 U.S.C. §1202(c), the way CMI technologies are actually implemented
chills use of a librarys digital resources for research in areas
where anonymous inquiry and the absence of a digital trail are critical.
Of course, this chill can affect not only scholarly researchers, but more
broadly faculty, students and the general public.
Americas libraries have always had the right to allow their patrons
to enter the librarys facilities, access works lawfully owned by
the library, and use those works, often anonymously, as allowed by copyright
laws. Copyright law has never meant that publishers can control who looks
at information and whether a page can be copied for private use. Now,
increasingly sophisticated technological measures and private licenses
between parties with unequal bargaining power threaten to curtail the
abundant access to information and private intellectual inquiry that American
libraries, both public and private, were founded to facilitate. While
the exact nature and extent of the detrimental effects remain unclear
at this time, the need for a full understanding of the interaction between
CMI and first sale, on the one hand, and privacy rights on the other,
is increasingly apparent. As with other developing aspects of technology
and privacy, legislative analysis and action are needed to avert adverse
(c) What effect, if any, has the development of electronic commerce and
associated technology had on the operation of the first sale doctrine?
In the past decade, electronic distribution has grown into a dominant
method for publishing many kinds of copyrighted works. As a general proposition,
owners of copyright in digital works distribute these works by licensing
usage rights rather than selling physical copies of the copyrighted work.
Because the first sale doctrine codified in section 109 of the Copyright
Act applies only to lawfully owned copies of a copyrighted work, some
suggest this statutory limitation on a copyright owners right to
control distribution of a copyrighted work beyond the initial sale of
copies is inapplicable to licensed works. As a result, many digital licenses
are able toand dorestrict both the resale and lending of digital
works and the licensees ability to use lawfully obtained copies
in ways that have traditionally been permitted under fair use, the first
sale doctrine and the rules of preservation with regard to analog works.
The Libraries have found that licensing rather than selling digital works
has allowed content owners to implement a price and market discrimination
business model which forces libraries to choose between second-class,
but affordable products and more expensive digital versions. To the extent
that "deluxe" digital versions feature content and search mechanisms
not available in lower-priced formats, libraries limited budgets
threaten to exacerbate the "digital divide" between those who
have access to electronic information services and those who do not.
Where libraries are able to afford access to digital products, licensing
terms routinely affect uses that were traditionally lawful under the first
sale doctrine. Routine library practices permitted under copyright law,
such as interlibrary lending, lending for classroom or at-home use by
patrons, archiving, preservation, and duplication for fair use purposes,
have all been restricted in some cases severely restricted and
in other instances barred by licensing agreements. Alternatively,
in some instances, sharing of digital works may be made only upon payment
of additional fees. Loss of access to digital works for these purposes
also promises to increase the information-access gap between the rich
and the poor. The Libraries recent inquiries to members and others
has determined that:
1. Interlibrary lending of digital works is threatened by restrictive
Because digital products are costly and library budgets are limited,
few facilities can afford to acquire access to all the digital works that
are likely to be sought by patrons. Interlibrary lending has traditionally
enabled libraries to borrow from each others collections on behalf
of patrons seeking access to material that is unavailable in the patrons
local library. The practice is often prohibited by the licenses under
which digital works are acquired. Public libraries in communities with
limited resources - whose patrons are among the least able independently
to purchase access and among the least likely to have direct access to
other publicly accessible collections, such as at public colleges and
universities - have traditionally been the most dependent on interlibrary
lending. Accordingly, these libraries are the most disadvantaged by the
containment of interlibrary lending of digital works. Librarians around
the country have provided detailed commentary on the loss of this lending
- "We will not be doing any ILL [interlibrary lending] to other
libraries using online journals. Since we have dropped many print journals
in favor of online only, libraries that have depended on us for our
unique collection will have to go elsewhere."
- "Most licenses do not cover inter-library loan privileges, and
must be negotiated. While we are able to ILL anything from our print
collection, publishers are reluctant to extend that provision to electronic
- "We are not allowed, and do not practice, interlibrary loan of
materials that we [license] in electronic format, which means that if
we no longer hold a print copy, we are not able to provide interlibrary
loan to things that we purchase rights to."
- "The terms for some products are unacceptable or cost prohibitive,
and we have not licensed these products, so our users do not have access.
Unlike printed books or journals, digital products are generally not
available through inter-library loan and often there is no print equivalent.
Since there is seldom a method for a single user to access the digital
products the library does not license, these products are essentially
unavailable to our users."
Restrictions on interlibrary lending can be devastating to scientific
and medical interests. As one academic medical library recently reported:
- "We recently had difficulty obtaining an article from the European
Journal of Surgical Oncology for one of our users on interlibrary loan.
Two libraries were not able to supply the article because they only
had the electronic copy of the journal and the license does not allow
interlibrary loan use. We were finally able to obtain the article from
the National Library of Medicine. Obviously, whoever requested the article
was made to wait longer for receipt of information that may have been
important for patient care or research."
Even where licenses permit some interlibrary lending, lack of staff and
expertise in interpreting contract terms may make the practice impracticable.
One library system recently reported:
- "The mish-mash of licensing terms has simply made inter-library
loan of digital materials impractical for us to provideto the
detriment of users around the globe with whom we otherwise share scholarly
material. We have hundreds of contracts with different e-journal and
full-text vendors with different terms governing inter-library loan.
Some of our licenses do permit us to print out the digital text and
loan the printed version. However, because of the complexity of these
terms, the high volume of inter-library loan that we do, and the low-paid
short staffing in our interlibrary loan department, we have had to resort
to the practical expedient of simply not providing any inter-library
loan of digital materials."
Interlibrary lending is a vital aspect of our educational system.
Acquired digital works should have the same status as their print and
analog companions when it comes to library loans. The first sale doctrine
should be clarified to ensure that core federal copyright principles associated
with interlibrary lending are guaranteed regardless of format.
2. Licensed Digital Works are the Equivalent of "Chained Books,"
Often Unavailable for Classroom and Offsite Use.
Lending a lawfully purchased copy of a work for classroom and offsite
use has historically been within the discretion of libraries under the
first sale doctrine. As teachers and patrons increasingly seek digital
works for these purposes, the impact of usage limitations imposed by licenses
has become apparent. Many digital works agreements limit access to one
specific computer terminal, causing one librarian to liken licensed digital
works to "chained books" that can only be read at a specific
table. Other librarians share frustration with such limitations:
- "There is an ongoing, unresolved problem between desire to provide
access to material and technical services concern with signing
restrictive site licenses."
- "Some vendors/publishers have been very reluctant to permit access
to their databases from off-campus
. Some publishers have instituted
pricing policies which penalize libraries for offering access to off-campus
users. This restricts what we are able to provide for distance education
and what is available for students and faculty in their local residences."
- "The proportion of contemporary culture and communication in
electronic format is increasing rapidly. Loss of ability to "clip"
or "Xerox" bits of video, music, and electronic-only publications
limits what students and faculty could take to class when most media
in our collection were print or LP records."
Copyright law should provide an explicit right to use all works in
a schools library in classrooms within that institution, whether
the works are in digital, analog or print format. Off-campus uses by enrolled
students and faculty should also be explicitly allowed as a corollary
to the first sale doctrine.
3. Licensing Provisions That Preclude Rights Traditionally Available
Under The First Sale Doctrine Threaten A Digital Future Without Access
Under Sections 107, 108 and 109 of the Copyright Act, libraries are able
to archive lawfully purchased works for future use and historical preservation.
They are also now explicitly authorized to convert particular copies of
a work into new formats (for instance by scanning print works into microfilm
and digital formats) to ensure against loss of access as technology evolves
and playback equipment becomes outmoded. As libraries obtain more electronic
products under license rather than purchase, they are losing control over
archiving and preservation, because many licenses prohibit copying digital
works for archival or any other purpose, and because the prohibitions
on copying are enforced by technological measures. Where they were once
the foremost guardians of Americas public domain literary heritage,
libraries are finding themselves increasingly at the mercy of publishers
abilities and commercial incentives to archive.
From the Libraries perspective, works that exist only on content
providers servers may be subject to corruption, sabotage, subsequent
alteration and selective preservation. If digital works are not archived
in a professional manner (appropriate storage media, care and environmental
maintenance, adequate indexing, etc.) the risk of loss to authors and
society is enormous. There are no firm statistics on losses because the
transition to digital publishing is still in the relatively early stages,
but it is entirely likely that profit-motivated publishers will not invest
in archiving older works that may no longer be marketable on a large commercial
scale. Indeed, libraries are already finding that subscription services
do not always maintain older works. The PALS network subscribed to by
one college library recently dropped its 1993 full-text database, leaving
the library without access to those works.
Libraries have also expressed concern that they will lose access to digital
works in the event that publishers merge, cease operations, or decide
not to convert existing works into new formats as technology evolves.
As one librarian explained, "Under the terms of purchase we are generally
not permitted to make copies, and as these media are damaged or deteriorate
the information is simply lost to humanity. Often the companies are no
longer in business, and when they are still in business they frequently
no longer have this older material in stock. It might as well have never
Mindful of the uncertainty, libraries are often forced to trade off between
current and future interests. One academic medical librarian explained:
"Our users are demanding electronic products and we cannot afford
to maintain both print and electronic products due to cost considerations.
We are unsure of the permanence of electronic products and our ability
to have archival access to electronic publications. When we license an
electronic journal, will we be able to access an issue 20 or 30 years
from now as we can with a print journal?"
Libraries around the country echoed these concerns:
- "Archiving of e-journals is generally not permitted by license.
Print journals are generally available, but do not include value-added
supplements (video, sound, images)
. An increasing number (of
print journals) will become electronic only in future years."
- "Archiving is not possible at all with our First Search and Infotrac.
We are dependent on current subscription for access. Theoretically,
we have archival rights to keep EBSCO disks and some encyclopedias etc.
However, as the interface and computer formats change, using the old
disks becomes impractical and eventually impossible because technological
and legal restrictions usually prohibit migrating the information to
- "Changes in format for technology limits access and use. National
Geographic 20 volume set is not compatible with NT network system and
is no longer accessible."
- "We try to select our subscriptions carefully, with a view to
a long-range subscription with long-standing, reputable companies.
is a distinct drawback to licensing versus straight-out ownership."
- "Elsevier has granted electronic access to their journals, but
tells us they will only provide access for a 9 month period, so we will
lose access to those electronic issues that we once had. We cannot afford
their Science Direct product at the moment, which would give us more
comprehensive, stable access to their journals."
- "We have had to return tens of thousands of dollars worth of
CD-ROMs to vendors like Standard and Poors when our subscriptions ran
out, leaving us with no archival data for many years of business information.
The price of purchasing this archival information in another format
is prohibitive. The data is simply no longer available to the economists
and MBA students on our campus."
- "In just [one] week
we had to withdraw and discard 75
titles that were on older computer disks because we were not sure if
we had the rights to transfer them to more current media. With millions
of items to keep track of and short staffing, we simply cannot devote
the staff resources to researching the rights of every title in order
to know if we can preserve it or not. The practical consequence is that
if the publisher or the laws make it difficult for cash-strapped libraries
to save this material, it simply will not be saved."
Federal copyright law should ensure that Americas libraries
have the full legal tools required to preserve bodies of works in digital,
as well as analog and print, formats. The 1998 amendments to Section 108
initiated legal support for this effort by removing the "digital"
barrier to certain copying and by allowing three, rather than one, copies
to be made of covered works. It is time now to review the state of preservation
of digital works in a systematic way. The Libraries believe the time is
at hand to enable repository libraries around the country to be designated
custodians of specific parts Americas digital history and supported
in that work..
4. Restrictive Licensing Terms and Pay-per-use Models May Hamper Research
in the Very Areas Where it is Most Needed.
High prices and limited budgets routinely force the Libraries to acquire
digital products subject to license limitations on transactions, usage
hours, or the number of simultaneous users. In order to acquire certain
digital products, libraries face restrictive terms that effective diminish
the use of scholarly works, contrary to copyright policy applicable to
print works. To the extent that high prices reflect a lack of competitive
information sources, and to the extent that scholarly research tends to
build on existing information, restrictive license terms may effectively
discourage research in the very areas where it is most needed.
The problem has been confronted even by relatively large and well-financed
library systems. In order to schedule access to certain high-demand sources,
students and faculty there are "being forced to do research late
at night during off-peak hours." Visiting other schools or asking
colleagues at other institutions to provide research assistance has been
the only means of accessing certain other sources that the university
cannot currently afford.
Scheduling disincentives have already been compounded by cost disincentives
at some university libraries. As one librarian explained, "Document
delivered articles, for which we pay copyright, are delivered with a technological
device that prevents a second viewing or online storage. So, to get the
item again, we have to pay againa situation that doesnt exist
when we purchase a periodical in print." As individuals and research
institutions face increased financial burdens at every step in the research
process, some projects may be discouraged. Licensed access with transactional
pricing may well enable current information publishers to maintain perpetual
monopolies over the information categories they currently dominate.
Licensing terms that unreasonably burden libraries and their
patrons use of works acquired by contract rather than outright purchase
should be preempted by an appropriate federal digital first sale doctrine.
5. The Lack of a Clear Digital First Sale Doctrine Eliminates Private
Donations as a Long-standing source of Library Materials
Libraries have long relied on private donations to add continually to
their collections. School libraries and public library childrens
collections have traditionally been regular recipients of books and audio
materials donated by the families of children who have outgrown them.
As educational CD-ROMs become more common and more in-demand by students
and teachers, the libraries have found themselves confronted with licensing
agreements that render them unable to use donated digital works. The result
is that public funds are sometimes used to purchase digital works that
might have been acquired by donation under the first sale doctrine. This
is especially detrimental to Libraries and their patrons in light of the
budget constraints limiting libraries ability to afford costly digital
works, and licensing terms that routinely prohibit interlibrary loan as
an alternative means of providing patrons with access to digital works.
According to one public elementary school librarian, "When the CD-ROM
is given to me in its original case--for example, a counting or letter
recognition CD-ROM that a child has outgrown--I feel I should be able
to accept it if it would be a useful addition to our curriculum. . . .
I feel CD-ROMs should be treated like books, and should be able to be
legally used by those other than the original purchaser."
Libraries must be allowed to receive donations of digital works without
fear of legal reprisal to donor or library.
(d) What is the relationship between existing and emergent technology, on one hand, and the first sale doctrine, on the other?
(e) To what extent is the first sale doctrine related to, or premised on, particular media or methods of distribution?
f) To what extent, if any, does the emergence of new technologies alter the technological premises (if any) upon which the first sale doctrine is established?
The first sale doctrine is neither media-specific nor technology-specific.
The rights and privileges that are codified in the Copyright Act are intended
to operate as a whole, with "checks" such as the first sale
doctrine preventing the remuneration rights of authors from chilling the
public access to creative works that is the goal of copyright law. See
generally Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156
Some argue that current law prevents application of the first sale doctrine
to digital works, because the doctrine limits only the distribution right,
not the reproduction right, and because use of a digital program necessitates
copying it into the hard drive of a computer. The Libraries do not agree.
Even though Section 109(a) states that the doctrine applies "notwithstanding
the provisions of section 106(3)," (the distribution right), a proper
application of Section 109 takes into account fair use and necessary activities
incidental to application of doctrine (such as reproduction). See cf.
17 U.S.C. §117 (confirming that an owner of a copy of a computer
program does not infringe the reproduction right by copying that program
as an essential step in use).
Moreover, the Supreme Court has held that the Copyright Act "should
not be so narrowly construed as to permit evasion because of changing
habits due to new inventions and discoveries." Id. 158 (affirming
that reception of an electronic broadcast by a retail outlet did not constitute
a public performance under the 1909 Act). When technological change renders
its literal terms ambiguous, the Act must be construed in light of its
basic purpose. Id. at 157.
The numerous privileges and exemptions that libraries and their patrons
enjoy under copyright law evidence the long-standing conviction that the
rights accorded by the first sale doctrine are fundamental to the basic
purpose of the Copyright Act. Even when the threat posed to the phonorecord
and software industries by modern duplication technologies led Congress
to prohibit commercial rental of those works, libraries and educational
institutions retained certain lending rights that were deemed to serve
a "valuable public purpose." H.R. Rep. No. 735, 101st Cong.,
2d Sess. (1990), reprinted in 1990 U.S.C.C.A.N. 6935, 6539. As explicitly
recognized by Chairman Kastenmeier at the 1990 hearings on the Computer
Software Rental Amendments Act of 1990:
[A] bill to change the first sale doctrine . . . is not a modest
proposal. It is . . .a major substantive proposal involving a fundamental
change in one of the main tenets of copyright law."
Software Rental Amendments of 1990: Hearing Before the Subcomm. on Courts,
Intellectual Property and the Admin. of Justice of the House Comm. on
the Judiciary, 101st Cong, 2d Sess. 2 (1990) (statement of Rep. Robert
Kastenmeier) (quoting Prof. David Lange).
During consideration of the 1990 amendments, Rep. Carlos Moorhead noted,
"Legislation to reform the first sale doctrine frequently arises
from a collision course between intellectual property law and technological
change." 136 Cong. Rec. H8266 (daily ed. Sept. 27, 1990) (emphasis
supplied). Such reform is appropriate, as Congress noted in 1998 by directing
the Copyright Office to consider additional changes to the copyright law
that might be needed.
The first sale doctrine presupposes that copyright proprietors will realize
"a fair return" on their creative investments from the first
sale of a copy. See, e.g., Platt & Munk Co. v. Republic Graphics,
Inc., 315 F. 2d 847, 854 (2d Cir. 1963) (stating that the ultimate
issue in application of the first sale doctrine is whether or not the
copyright proprietor has "received his reward," quoting United
States v. Masonite Corp., 316 U.S. 265, 278 (1942)). When market conditions
threaten to undermine incentives to creative production, a re-balancing
of owners rights and users privileges may be warranted. However,
where the authors interests and those of the public conflict, "the
public interest must prevail." See Registers Report on the
General Revision of the U.S. Copyright Law (1961) (explaining the purpose
of public interest limitations on authors rights), reprinted in
8 Nimmer On Copyright at App. 14-17.
The piracy rationale that has warranted past modifications to the first
sale doctrine may eventually be rendered obsolete by copy control technologies.
Until such time as that determination can be made, the increased incentive
to digital publishing that may be achieved by restrictive licenses must
be balanced against the benefit that the public receives from library
lending. Full application of the first sale doctrine requires extending
the section 117 "essential copy" rights that currently facilitate
use of computer programs to use of digital works lawfully acquired under
the first sale doctrine. Certainly, the public interest in ensuring that
libraries are able to carry out their mission of providing access to works
to promote the progress of knowledge requires no less.
(g) Should the first sale doctrine be expanded in some way to apply to
digital transmissions? Why or why not?
As our survey has shown, vital library services have been diminished
by the loss of control over collections that results from restrictions
on the application of the first sale doctrine to licensed digital works,
so some rethinking of federal policy is urgently needed. We are in the
midst of an accelerating transition to digital formats; print versions
of some publications currently remain available for uses such as interlibrary
and offsite lending which are banned by digital licensing terms. However,
these substitutes are becoming less available as users demand the additional
content and search mechanisms that are typically available only in electronic
For libraries to serve the informational needs of the American public
in the future as effectively as they have in the past, the binding that
ties copyright policy embodied in the first sale doctrine (as well as
the fair use doctrine and preservation of works) to lending and usage
rights must be strengthened with respect to digital works. This Copyright
Office study should recognize this fact and recommend changes to Section
109 consistent with the proposals herein. Specifically, a first sale doctrine
for the "digital millennium" should include these points:
- Interlibrary Lending: Fundamental public copyright policy should not
permit distinctions in lending based on the format of the work. The
Copyright Act should reaffirm and strengthen the rules on interlibrary
loans of digital works.
- Unchaining Works: All works acquired by a library should be available
for use in the classroom, regardless of geographic location, and use
by enrolled students and faculty, wherever they are located.
- Preservation: As recently as 1998 when Congress modified Section 108,
it reaffirmed the libraries vital role as the preservers of our nations
recorded history. The trends since passage of the DMCA require additional
initiatives. One such initiative to ensure preservation of works in
digital formats would be creation of a national system of digital library
repositories, wherein specific libraries or institutions would be designated
as custodians of specific parts of Americas digital history and
assisted in their efforts to serve as the preserver of these works.
- Unreasonable Licensing Restrictions: Federal law should preempt state
statutes and contractual terms which unduly restrict the access rights
all to which all Americans are entitled to with regard to copyrighted
works. A unitary federal policy, providing minimum standards respecting
limitations on the exclusive rights of ownership (including but not
limited to first sale, fair use and preservation) should be established.
- Donations: Federal policy as expressed in copyright law should encourage
donation of works to libraries irrespective of format. Donors and recipients
of digital works should not face threats of litigation or reprisals
for the generosity of the gift or the willingness to receive.
If the Copyright Office does not recommend and the Congress does not
act, many publishers will continue to legislate digital first sale limitations
in their steadby contractto an end that fails to effectuate
the federal policy of balance between the interests of information owners
and users. Restrictive licensing of digital works has become the industry
standard, and as print sources become increasingly obsolete, acquiescence
is the only means by which many users can gain access to the information
From the Libraries perspective, this practice deprives many libraries
of vital control over their collections. Essential library services such
as interlibrary lending, archiving, preservation, and lending for classroom
and offsite use have been severely curtailed. Digital products are expensive;
for many citizens, library and classroom access is their only access.
Foreclosing that access will exacerbate the "digital divide,"
which, in our information-based economy, may mean lost productivity for
generations to come. Perhaps even more disturbing is the risk to our nations
rich cultural heritage that is posed by the licensing away of the libraries
archiving rights. The profit motive that properly governs the publishing
industry simply cannot ensure that todays digital works will remain
available to tomorrows historians, scholars, and scientific and
As the Supreme Court articulated in Sony Corp. v. Universal City Studios,
Inc., "The monopoly privileges that Congress may authorize are
neither unlimited nor primarily designed to provide a special private
benefit. Rather, the limited grant is a means by which an important
public purpose may be achieved." 464 U.S. 417, 429 (1984) (Emphasis
added.) That important public purpose the continued flow of ideas
and information is directly served by the limitations on copyright
that Congress has built into the law. However, as the debate over the
proposed Uniform Computer Information Transactions Act ("UCITA)
has demonstrated, unless an express federal digital policy preempts state
laws, content owners will continue to turn to local laws and restrictive
licensing agreements as a way of forcing members of the public to waive
the very federal rights that Congress reserved for the public including
those rights that flow from the first sale doctrine on which so many library
h) Does the absence of a digital first sale doctrine under present law
have any measurable effect (positive or negative) on the marketplace for
works in digital form?
The Libraries believe that the current uncertainty about the application
of the first sale doctrine for digital works has and will continue to
have a negative impact on the marketplace for works in digital form.
Uncertainty about the extent to which the rights reserved to users by
the Copyright Act apply to licensed digital works is currently chilling
digital purchases by libraries. The standard licenses by which publishers
market digital works prohibit many practices that have traditionally been
within the libraries discretion under the first sale doctrine. These
practices, including lending for offsite use and archiving, are vital
to libraries ability to serve patrons now and in future decades.
In the absence of clear legislative guidance, many libraries have taken
the "safe" route and continued to purchase print alternatives
to digital where those alternatives remain available. These print works
generally lack the added content and search capabilities of their digital
counterparts, but libraries appreciate that the print versions may confidently
be used according to provisions of the Copyright Act with which they are
familiar. This is no small factor as the threat of "self-help repossession"
by publishers compounds the libraries concerns about liability for
unintentional non-compliance with proliferating contract terms. For these
reasonsand because they are eager to purchase more digital works
as uniform usage guidelines become availablethe Libraries believe
that the uncertainty of a digital first sale doctrine has had a significant
negative effect on the short-term market for digital works.
The Libraries also believe that the lack of a codified digital first
sale doctrine will hurt the market for digital products well into the
future, by exacerbating the "digital divide" between those who
have access to digital technologies and those who do not. Interlibrary
and classroom lending provide many low- and middle-income individuals
and communities with their only access to digital works. If restrictive
licenses continue to bar libraries from making digital works available
through these services, many citizens simply will not develop the comfort
with electronic technology that they need to compete as producers in the
digital economy. Because marginalized producers are unlikely to reach
their full potential as consumers of digital goods, the Libraries believe
that reaffirmation of the first sale doctrine extension to digital works
will positively impact the future market for such works.
A new copyright debate is raging throughout many state legislatures this
year. The issues posed by attempts to pass the proposed Uniform Computer
Information Transactions Act on a state-by-state basis, has led those
in state governments, unaccustomed to dealing with federal copyright policy,
to confront the relationship between copyright policy and contract law.
The debate, which fundamentally affects the first sale doctrine and the
applicability of particular terms within licensing agreements, backed
by strong local laws, to impact on the federal copyright policy, should
not be ignored by the Copyright Office in this inquiry. The Libraries
believe that no review of the first sale doctrine and computer licensing
rules should be completed without the Congress giving serious consideration
to a new federal preemption provision affecting these rules.
The Libraries urge that in light of the vital need for a digital first
sale doctrine policy, public hearings should be held prior to the Copyright
Office sending a report to Congress.
Medical Library Association
American Association of Law Libraries
American Library Association
Association of Research Libraries
Special Libraries Association