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Minnesota Journal of Law, Science & Technology

Abstract

Digital lending of eBooks offers flexibility to patrons, but it also exacerbates the existential threats libraries face. Libraries cannot own eBooks—they can only license and lend them on publishers’ terms—which means libraries are paying more for less. This is known as the “digital lending problem.” Access to older books is even more limited, as publishers and copyright holders rarely offer them as eBooks, creating the “20th century book problem.” These problems are chilling libraries’ creative approaches to digital lending and are further exacerbated by the Trump Administration’s attacks on libraries and the continuing effects of the COVID-19 pandemic. These developments have undermined the two interrelated copyright doctrines that have driven libraries’ success for centuries: first sale and fair use. The first sale doctrine enables ownership of physical books, which permits owners to lend those books freely regardless of publishers’ wishes. But the first sale doctrine does not (yet) apply to digital materials. The fair use doctrine empowered libraries to innovate by creating course reserves and permitting patron photocopying over objections from publishers, but it has not been expanded to digital lending. Without the benefit of this duo of doctrines, libraries can only offer a small subset of works in eBook form on terms dictated by publishers. This is libraries’ new reality.

Volume

27

Issue

2

Page

383

Year

2026

Rights

http://rightsstatements.org/vocab/InC-EDU/1.0/

Publication Abbreviation

Minn. J. L. Sci. & Tech.

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