The Download Dharma

Downloading audiobooks is easy. But are libraries allowed to circulate them?

By Carrie Russell -- School Library Journal, 6/1/2005

A Web site called audible.com allows users to download audiobooks. The site specifies that each download is only for a single user. Would it be a violation of copyright law for a library to download a book, burn it to a CD, and circulate it?
—Cheri Dobbs, middle school media specialist and PreK–12 department chair Detroit Country Day School, Beverly Hills, MI

Audible.com, through its conditions of sale, is establishing an agreement with its members that audiobooks downloaded from the site be used only for personal use. This agreement tries to enforce that each audiobook customer makes only one copy of an audiobook. It is a license agreement. As you know, we agree to license terms all the time—when we rent a car, travel by airplane, or sign up for the Book of the Month Club. If you purchase an audiobook without conditions, any of the limitations and exceptions of copyright, such as the first-sale doctrine, would apply.

Some people question the validity of licenses that are "buried" in the notice of sale or only discovered if the buyer chooses to read the "small print." And, in fact, laws do exist to protect consumers (and sometimes sellers) from terms that are considered "unconscionable" in rental or leasing agreements. As for licensing agreements, no such law currently exists, although consumer groups and libraries have actively fought against non-negotiated licensing agreements like those proposed in the Uniform Computer Information Transactions Act. For more information, visit the Americans for Fair Electronic Commerce Transactions Web site at www.ucita.com.

If a public library has a specific time reserved exclusively for homeschool groups, is it allowed to show education videos to them? I know there is a copyright exception that allows public schools to show videos for teaching purposes. Does the same exception apply to homeschool groups in the public library?
—Carolyn Davidson, continuing education/library consultant North Texas Regional Library System, Fort Worth, TX

The public performance limitation to copyright says that nonprofit, educational institutions may publicly perform a work in a face-to-face teaching situation. Public libraries are not the nonprofit, educational institutions to which the law refers. And instructing homeschoolers is not the face-to-face teaching situation that the law is referring to either. Having said that, there is a very good argument here for fair use. In other words, by considering the four factors of fair use (the purpose of the use, nature of the work, amount used, and effect on the work's market), the homeschool screening is an unauthorized use of copyrighted material that, given the conditions, is not an infringement. Important here is the fact that the homeschoolers have established a specific time and place to meet as a class, making the screening not public (as in "open to the public") but restricted to those children that are members of the "class." Any measures that can be taken to physically restrict the video viewing to only the homeschool students should be taken, such as having the screening in a separate room of the library or partitioning off a "class" area. As long as the videos are lawfully acquired, I would not be concerned with this situation. In the future, if homeschool teaching gains popularity and becomes established as an educational option funded by state and local governments, there will be even more evidence that such screenings are non-profit and education-based.

Correction: In my April 2005 column, I incorrectly stated that the off-air broadcasting guidelines allow that "TV programs can be taped (including programs transmitted by cable but not pay-per-view programs) for instructional purposes." This is incorrect. The guidelines limit taping to broadcast-only television programs. Statutory fair use may still apply to the taping of cable programs for classroom performances, but the off-air guidelines (a set of rules that do not have the force or effect of law) do not include this category of television programming. Thanks to column reader Christopher Harris for picking up on my error.