The Library Copyright Alliance has released 'The Impact of the Supreme Court's Decision in Costco v. Omega on Libraries'. Prepared by Jonathan Band, the concise, informative paper examines the much-discussed Costco v. Omega non-decision, which left in place a controversial 9th Circuit ruling that could have significant consequences for library lending practices.
The first sale doctrine lets purchasers of lawful copies of copyrighted works re-sell, donate, lend, or otherwise dispose of their copy. If not for first sale, or some other balancing exception, copyright holders could ban purchasers from all of these practices, essentially controlling how individuals or institutions such as libraries use cultural products that they own.
In his analysis, Band explains that libraries are still on sound footing in lending foreign-made copies in their collections. He gives a range of alternative justifications for lending that should cover the vast majority of situations that institutions face on a regular basis.
For libraries in the 9th Circuit, first sale still applies if a foreign-made copy was sold domestically by an authorised party. Libraries in other circuits can also rely on the Ninth Circuit's Drugstore Emporium exception. The §602(a)(3)(C) provision for importation by scholarly, educational, and religious organisations should make it possible to lend materials lawfully imported for the purpose of lending. Implied license and fair use are powerful and flexible doctrines that should capture many library uses.
The paper is available for download from http://www.arl.org/bm~doc/lcacostco013111.pdf.
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