inventory system manufacturers—may suffer with digital lending. But those markets do not belong to the copyright holder.
We do acknowledge, however, that the first sale doctrine was developed by the courts and embraced by Congress in the context of a physical environment where transaction costs were high. The USPTO in its recent white paper declining to recommend development of a broad conception of “digital first sale” stated that that “[t]o the extent that library lending involves library patrons ‘willing and able to wait their turn for the limited loans and use of library materials,’ [ ] the inefficiencies built into lending processes may avoid crossing the line of competing with the commercial market.”[1] So, while transactional friction may not be necessary for CDL, an implementation that added it could reduce risk for libraries.
- b)“Digital copies don’t degrade like physical works.”
A second, broader, market harm concern is that digital works don’t degrade like physical works. With that argument is the implicit suggestion that, like the friction discussed above, degradation was implicitly calculated into the balance of rights Congress arrived at when codifying the first sale doctrine. For one, this argument fails to appreciate that for long-term digital copies do degrade and require significant effort to maintain.[2] Redundancy is a standard requirement for the preservation of digital copies, requiring multiple storage locations, the technology of which needs to be upgraded and replaced every few years. Systems need to be migrated periodically, and platforms updated to interact with current technology. HathiTrust, for example, reports replacing storage hardware every 3–4 years.[3] All are potential failure points at which the particular copy of the work can degrade, sometimes spectacularly. So, the stored digital copy used for lending does degrade over time and in reaction to use, just in ways that are not entirely analogous to the more gradual and straightforward entropy of the physical book.
Those facts aside, to our knowledge no court has ever tied the application of the first sale doctrine to a required, planned degradation of the format in which the copy exists. Libraries can lend brand new books in perfect condition just as they can older, tattered ones, many of which are repaired and rebound by library
- ↑ USPTO First Sale Study, supra note 29, at 70.
- ↑ See, e.g., Bairavasundaram, Lakshmi N., Andrea C. Arpaci-Dusseau, Remzi H. Arpaci-Dusseau, Garth R. Goodson, and Bianca Schroeder, An Analysis of Data Corruption in the Storage Stack, ACM Transactions on Storage (TOS) 4, no. 3 (2008): 8, DOI: 10.1145/1416944.1416947 (“An important threat to reliable storage of data is silent data corruption.”).
- ↑ HathiTrust Trustworthy Repository Audit and Certification (TRAC), HathiTrust.org (2011), https://www.hathitrust.org/trac.
