Ever since copyright’s inception, libraries have been unique stakeholders in the “carefully crafted bargain” between the exclusive rights afforded to copyright holders and the many benefits afforded by public access to the knowledge contained in copyright-protected works. Today, however, onerous ebook licenses impose prices upon libraries that are far higher than for equivalent print books (or even retail ebooks to other consumers), with fees rising exponentially in just over a decade for digital formats. These price hikes, along with license conditions, undermine and even threaten the long-established functions of libraries to facilitate public access to copyrighted works, not to mention preserve and otherwise protect these works.
In response to this increasingly unsustainable challenge to libraries and the publics they serve, this Article underscores the following propositions: (1) Libraries occupy a privileged position in the copyright system; (2) exhaustion forms a major common law limit to the scope of copyright, historically working in tandem with libraries to facilitate their multiple functions; and (3) the equitable doctrine of copyright misuse is not only widely accepted but also growing in response to licensing over-reaches. Twisting these three strands together, a court should find copyright misuse in the case of a licensing regime that leads to price discrimination against libraries and/or that curtails activities such as inter-library lending that otherwise would be allowed after first sale of an equivalent print book. In this way, copyright’s common law of exhaustion and equitable doctrine of misuse, working together, can address statutory gaps that have rendered libraries vulnerable to widespread and often predatory publishing industry practices.