staff or volunteers. Since the first recognition of the first sale doctrine over 100 years ago, the advent of acid-free paper, improved binding technology, media such as microform and magnetic tape and other innovations have extended the life of physical works dramatically.[1] In that time neither Congress nor the courts have altered the balance of rights in response to degradation. What’s more, libraries engage in systematic preservation and conservation work to prevent or stop degradation. Driven in part by a lack of market availability, libraries repair, strengthen, and rebind many books in their collections, in large part because replacements cannot be purchased.[2] So as applied to CDL, we don’t find degradation as a distinctive digital feature to be a compelling point. The idea has no connection to the statutory or judicial development of the rationale for first sale, and it fails to account for how digital storage and transmission do encounter degradation that is consistent with (if not more severe than) physical degradation.
- c)“Digital distribution raises unique security and piracy risks”
Finally, the third market-harm concern is that digital distribution raises greatly increased risks of piracy. In its 2001 report addressing digital first sale, the U.S. Copyright Office concluded that “the concerns about expanding first sale to limit the reproduction right, harm to the market as a result of the ease of distribution, and the lessened deterrent effect of the law that could promote piracy, outweigh the pro-competitive gains that might be realized from the creation of a digital first sale doctrine.”[3] In its 2016 White Paper addressing digital first sale, the USPTO noted similar concerns.[4] The argument is that digital distribution is inherently more prone to negative market effects through
- ↑ See, Library of Congress, The Deterioration and Preservation of Paper: Some Essential Facts (n.d.), http://www.loc.gov/preservation/care/deterioratebrochure.html (“If mass deacidification treatment is carried out while the paper still has significant measurable strength, and the treated items are then stored under proper conditions, these once-acidic items are projected to remain in usable condition for several centuries, rather than becoming brittle and unusable in only fifty to one hundred years.”).
- ↑ For example, in one recent survey with just 69 responding institutions, the Association for Library Collections & Technical Services found that respondents provided conservation treatment of a variety of levels to over 200,000 volumes of books and bound volumes. See ALCTS, Annie Peterson, Holly Robertson, and Nick Szydlowski, Preservation Statistics Survey Report FY2015 (2016), http://www.ala.org/alcts/sites/ala.org.alcts/files/content/resources/preserv/presstats/FY2015/FY2015PreservationStatistics.pdf.
- ↑ DMCA Section 104 Report, supra note 11 (“Asserting, by analogy, that an online digital transmission is the same as a transfer of a material object ignores the many differences between the two events. Digital transmission has a much greater effect on the market for copies provided by the copyright owners. It is also accompanied by a greatly increased risk of piracy.”).
- ↑ USPTO First Sale Study, supra note 29, at 51.
