Amazon’s launch of the Kindle reader has generated a flurry of commentary, both pro and con. Mark Pilgrim’s November 19 blog post about Kindle, “The Future of Reading (A Play in Six Acts),” has already achieved internet fame. While many Kindle reviewers have focused on its quality, functionality and value for the price, Pilgrim’s post targets Kindle’s license terms. One of his key points (though he doesn’t mention it by name) is that license agreements like Kindle’s erode the First Sale Doctrine of copyright law (17 U.S.C. § 109(a)). Under First Sale, though the purchaser of a print publication does not own its intellectual content, she does own a tangible copy of its expression. Essentially, she can do as she pleases with her copy: she can sell it, lend it, or give it away. Conversely, a content licensee owns a digital representation of the content, which, in Kindle’s case, is nontransferable. A new Kindle user who is accustomed to reading a book and passing it on to a neighbor will find that he can no longer do this legally.
For librarians, Kindle’s licensing terms are nothing new. If Kindle-like licensing models ignite for popular books, the public will wrestle with issues that have vexed law librarians for decades. Our print collections are transforming into ethereal chunks of cyberspace that often are subject to restrictive license agreements. In fact, licensed content is rapidly changing the very nature of libraries. Traditionally, libraries have been in the business of sharing. Intricate interlibrary loan networks were built to share resources among libraries, often among competing institutions. Among the law firms in the District of Columbia, for example, law libraries purchased individual state codes solely to lend them to each other. All fifty state codes were thus available to all participating law firm libraries. Today, digital content has stretched library boundaries insofar as patrons’ remote access is concerned. Yet if restrictively licensed content comes to dominate a library’s collection, its reach beyond its own patrons will shrink. While one library can borrow another library’s print treatises, it can’t borrow another library’s commercial database access.
The public belief that everything is available for free on the internet persists. In the case of legal information, this perception is bolstered by the fact that primary legal information, which is produced by the government, generally is available for free on the internet. However, secondary sources are indispensible for turning the millions of discreet pieces of legal authority (statutes, regulations, and cases) into the body of law. As these resources disappear from library shelves in favor of virtual shelving behind firewalls, they become accessible only to those who are affiliated with institutions that can afford to buy a ticket to view. The interlibrary loan system once encouraged heterogeneity in law library collections because materials needed only occasionally could be borrowed from other libraries. Now, despite the fact that we’re living in the Information Age, today’s law library collections are more isolated than they were in the print age. Kindle readers will notice that the same holds true for their personal libraries as well. Perhaps they can learn to bargain against the boilerplate, as law librarians must do.
