Public libraries face a digital lending crisis. Even as library patrons demand greater access to digital materials, eBook publishers have subjected libraries to onerous licensing terms. These include prices substantially higher than those charged to the general public, as well as stringent constraints on license duration and/or loan volume, forcing many libraries to repurchase their eBooks every one or two years. Some publishers are releasing new books only in digital formats, making it even more costly for libraries to maintain robust collections. eBook publishers also compel libraries to use specific digital lending platforms which pose risks to patron privacy. At the same time, many public libraries face budget cuts as well as politically-motivated book bans, reducing their ability to meet local patrons’ needs, and forcing patrons to search for materials from other sources.
To better serve patrons, some libraries have resorted to self-help in the form of controlled digital lending (CDL), producing and lending their own scans of printed materials, lending the digital copy to only one patron at a time, while making the print copy unavailable for the duration of the digital loan. A number of these libraries have pooled their collections to provide CDL through the Internet Archive. However, under precedents interpreting the first sale rule and the fair use defense, CDL is likely to constitute copyright infringement, especially in light of the Second Circuit’s 2024 decision in Hachette Book Group, Inc. v. Internet Archive.
At the state level, actual and proposed legislation, including a recently developed Model Law, would compel eBook publishers to offer reasonable licensing terms to public libraries. However, to the extent that such laws impede the exclusive rights of copyright owners to decide whether and how to exploit their works, they are likely to be preempted by federal copyright law. A novel approach under consideration in Connecticut is likely to avoid preemption, but does not offer a complete solution to the nationwide problem.
The better solution is to amend federal copyright law to ensure that nonprofit libraries can obtain eBook licenses on reasonable terms. Such an amendment could draw inspiration from the Model Law as well as the European Union’s rental right, and could take the form of either an exception or a compulsory license. Consistent with the long tradition of library exceptions already included in federal copyright law, such an amendment would recognize the critical role that libraries play in maintaining an informed electorate.
