ARTICLES
Reimagining Digital Libraries
GUY A. RUB*
Public libraries are among the most cherished institutions in our soci-
ety, and most Americans use and love them. However, many are unaware
of the crisis that libraries face nowadays. The gradual shift towards digi-
tal distribution of copyrighted goods, a trend greatly accelerated by the
COVID-19 pandemic, challenges both the role and operation of libraries
in our society.
Specifically, libraries face a difficult digital lending problem. While in
the realm of printed works, libraries operate in the shadow of well-estab-
lished exemptions from copyright liability, those exemptions do not apply
in the same way in the digital world. As a result, libraries secure specific
licenses from the publishers to acquire and lend digital content. This de-
velopment has left libraries at the mercy of publishers and their restric-
tive and expensive licenses, which drain libraries’ resources, shrink their
catalogs, and hamper their ability to fulfill their mission. Changes in the
post-COVID world, including various proposed state statutes and a
recent important case, Hachette Book Group, Inc. v. Internet Archive,
put the issue front and center.
So far, courts have failed to appreciate the unique role libraries play
in our society and the need to partly shield them from market forces. At
the same time, legal scholars have largely ignored this crisis, leaving
libraries to fend for themselves.
This Article seeks to begin closing this surprising gap in legal litera-
ture by analyzing the digital lending problem from legal, comparative,
and economic and social justice perspectives. It explains why it is highly
problematic to let libraries—which have always operated alongside the
market—be completely subject to the publishers’ powerful commercial
* Vincent J. Marella Professor of Law, Temple University Beasley School of Law. © 2024, Guy A.
Rub. This Article was primarily written when I was the Joanne Wharton Murphy/Classes of 1965 and
1973 Professor of Law at The Ohio State University Moritz College of Law. I would like to thank
Jonathan Band, Sarah Fornshell, Wendy Gordon, David Hansen, Ce
´sar Cuauhte
´moc Garcı
´a Herna
´ndez,
Michael Mattioli, Jacob Noti-Victor, Tyler Ochoa, Aaron Perzanowski, Zvi Rosen, Jessica Silbey, the
participants of the IP Scholars’ Conference (IPSC) at Cardozo Law, the IP Researchers Europe (IPRE)
Workshop at the World IP Organization (WIPO) in Geneva, the IP Roundtable at Texas A&M School of
Law, Work in Progress in IP (WIPIP) at Santa Clara Law, the Midwest Law & Economics Conference at
Indiana University Maurer School of Law, the User Rights Network Symposium at American
University, and the Faculty Workshops at The Ohio State University Moritz College of Law, Temple
University Beasley School of Law, and Reichman University, and numerous individuals affiliated with
public libraries or the publishing industry for their helpful comments, and Mario Marini for outstanding
research assistance. All remaining errors are my own.
191
interests. The Article instead offers several alternative frameworks to
balance libraries’ role in providing access to knowledge with the pub-
lishers’ role in supporting the creation of new works. While some of them
require federal legislation, many do not and can be implemented by state
and local governments or even by libraries themselves. Copyright law
and copyright markets have always evolved in response to new technolo-
gies. They now need to adapt to address libraries’ crisis and their role
and needs in our growingly digitized world.
TABLE OF CONTENTS
INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
I. THE PHYSICAL WORLD EQUILIBRIUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202
A. THE LAWS OF LIBRARY LENDING IN THE UNITED STATES: THE FIRST
SALE DOCTRINE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202
B. A COMPARATIVE VIEW OF THE LAWS OF LIBRARY LENDING . . . . . . . 203
C. THE ECONOMICS OF TANGIBLE LENDING . . . . . . . . . . . . . . . . . . . . . . 208
II. THE DIGITAL LENDING PROBLEM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212
A. CURRENT DIGITAL LENDING PRACTICES IN THE UNITED STATES . . . . 212
B. THE CHALLENGE OF DIGITAL CONTENT ACQUISITION . . . . . . . . . . . . 215
C. A CASE DTUDY: THE FAILURE OF EUROPEAN UNION LAW . . . . . . . . . 218
III. REJECTING THE EXTREME APPROACHES. . . . . . . . . . . . . . . . . . . . . . . . . . . . 220
A. UNBALANCED APPROACH I: UNRESTRICTED DIGITAL EXHAUSTION . . 220
1. The First Sale Doctrine Currently Does Not Apply to
Digital Lending .................................... 220
2. As a Matter of Policy, Expanding the First Sale Doctrine
Is Problematic ..................................... 224
B. UNBALANCED APPROACH II: IN THE MARKET WE TRUST . . . . . . . . . . 228
IV. EVALUATING BALANCED APPROACHES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231
A. REPLICATING THE PHYSICAL WORLD: FAIR USE AND CONTROLLED
DIGITAL LENDING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231
1. Copyright, Disruptive Technologies, and Fair Use ...... 232
2. The Fair Use of Controlled Digital Lending Schemes . . . 235
192 THE GEORGETOWN LAW JOURNAL [Vol. 113:191
B. FINDING NEW EQUILIBRIA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 240
1. Digital Public Lending Rights (ePLR)................. 240
2. Identifying Readers’ Subgroups for Preferential Access . 242
C. STATES AS REGULATORS AND CONSUMERS . . . . . . . . . . . . . . . . . . . . 247
1. States as Regulators ................................ 247
2. States as Consumers ................................ 248
3. States’ Sovereign Immunity ......................... 249
D. OPTIMIZING DIGITAL LENDING BY EMPLOYING MULTIPLE
STRATEGIES ............................................ 250
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 251
INTRODUCTION
Even in our highly divided society, Americans of all political creeds share their
love of public libraries.
1
See, e.g., A.W. Geiger, Most Americans – Especially Millennials – Say Libraries Can Help Them
Find Reliable, Trustworthy Information, PEW RSCH. CTR. (Aug. 30, 2017), https://www.pewresearch.
org/short-reads/2017/08/30/most-americans-especially-millennials-say-libraries-can-help-them-find-
reliable-trustworthy-information [https://perma.cc/K8NE-HW7D] (summarizing a survey that found
that “[a]bout eight-in-ten adults (78%) feel that public libraries help them find information that is
trustworthy and reliable and 76% say libraries help them learn new things,” as well as that “56% believe
libraries help them get information that aids with decisions they have to make”).
Since President Eisenhower proclaimed, in 1958, the
first National Library Week,
2
the nation has been celebrating this event every
spring. Prominent leaders, regardless of their party affiliations, similarly applaud
libraries. Barack Obama said that “the library represents a window to a larger
world . . . . At the moment that we persuade a child, any child, to cross . . . that
magic threshold into a library, we change their lives forever, for the better. It’s an
enormous force for good.”
3
Barack Obama, U.S. Senator, Bound to the Word, Keynote Opening Address at the American
Library Association Annual Conference (June 23, 2005), in AM. LIBRS, Aug. 2005, https://
americanlibrariesmagazine.org/bound-to-the-word [https://perma.cc/NCW2-7GFD].
Jill Biden declared, “In big cities and small towns,
libraries fulfill a purpose that almost nothing else does . . . . They’re a place of in-
formation for all.”
4
Lindsey Simon, Why First Lady Jill Biden Loves Libraries, I LOVE LIBRS. (Jan. 28, 2021), https://
ilovelibraries.org/article/why-first-lady-jill-biden-loves-libraries [https://perma.cc/5FHD-KNEB].
Laura Bush, a former librarian, commented that “the most
valuable item in my wallet [is] my library card,”
5
Laura Bush, Mrs. Bush’s Remarks for National Library Week Celebration and American Library
Association’s ‘@ Your Library’ Event (Apr. 3, 2001) (transcript available at https://georgewbush-
whitehouse.archives.gov/news/releases/2001/04/20010403-12.html [https://perma.cc/QZ9H-WFCZ]).
and Ivanka Trump tweeted that
1.
2. Proclamation No. 3226, 23 Fed. Reg. 1853, 1853 (Mar. 20, 1958).
3.
4.
5.
2024] REIMAGINING DIGITAL LIBRARIES 193
