E-books are rapidly displacing sales of books and transforming the way the American public understands and accesses information. Yet as e-books grow in popularity, the threat of piracy grows alongside them. Thousands of people search for pirated books online every day, and more are likely to follow as e-books become the norm rather than the exception. To displace this threat, publishers convinced Congress to abandon the first sale doctrine in favor of a market theory that allowed publishers to license, rather than sell, their copyrighted works.
Yet a decade later, Congress’ decision has not only failed to ensure publishers’ continued role as gatekeepers of literary content, but also stripped libraries of their ability to operate effectively in the digital age. As Congress sits back and watches, and the Supreme Court turns its back, libraries, the antithesis of a market entity, are at the mercy of market forces they can neither compete with nor control. Congressional action is needed to preserve the application of the first sale doctrine to publisher-library transactions and guarantee the preservation of unfettered public access in the digital age.