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A mischievous thought on HarperCollins' limiting libraries to 26 loans of an ebook...

May 2, 2011   [permalink]

You've probably heard by now that many libraries are boycotting HarperCollins ebooks because HarperCollins imposed a limit of 26 checkouts on ebooks after which the library must repurchase the ebook.

Of course, ebooks don't wear out -- and physical books last a lot longer than 26 checkouts -- so this appears to be pure greed.

(Note that each copy of a library ebook can only be checked out by one patron at a time, so this is not about limiting one copy to one reader; that's already in place and not in question.)

So that's nothing new (Unless you hadn't heard about it. :) In which case, you can sign a petition showing your disapproval.)

My new thought -- and I'm not a lawyer, although I have spent a fair deal of time reading copyright law -- is that, in my completely non-lawyerly way, it looks to me like copyright law already permits a library to keep a copy of a book in circulation by making a copy.

It's called section 108 of the copyright law. As I'm reading this it seems to say it is not copyright infringement for a library to make a copy of a work to replace one that is deteriorating if a replacement is not available for a fair price. It strike me that the arbitrary limit of 26 checkouts renders the price unfair, particularly when taken in aggregate: Libraries will have to spend much more money than they presently do in "replacement" costs. On the whole, that strikes me as unfair. (Especially since the current replacement cost for ebooks is $0. But even taking the print costs into account, which is mixing fruits and battery acid together. They're entirely dissimilar. There's no right to have a product wear out.)

The question would be: Would it also strike a judge as unfair?

If I were a library with some moxy and stature, say, the New York Public Library, or a group of libraries with deep pockets collectively, I might deliberately flaunt the publishers, break the encryption on an ebook, re-encrypt it to keep lending it without the 26 lives, check it out a 27th time, and invite the publisher to sue. Take it to court. It seems entirely possible a judge might rule that the publishers were being unfair in their arbitrary, nonsensical limitation, and since the word "fair" is the lynchpin in the copyright law, libraries might win the right to ignore the 26 checkout limit.

Or the publicity of a greedy publisher suing a sweet little library might deter them from even trying.

In any event, shame on HarperCollins. The sooner they retract this policy the better.

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