As two specific examples, we believe that neither the fair use section, nor the section 108 library exemption should be curtailed through the terms of a contract. Moreover, as a matter of public policy, we believe that licenses should not create a new form of protection through contract for works which Congress decreed are in the public domain, such as works of the United States government and those works lacking the requisite originality for copyright protection. AALL is also concerned about the characterization of what is really a purchase as a license for use, rather than a sale of copy. Under the first sale doctrine, a library may lend to its users a copy of a work that it lawfully owns. Restrictive license terms, without a first sale equivalent, would potentially limit access to information in library collections.
Many libraries now enhance their collections through donations or exchanges of materials.
Without the first sale doctrine, publishers could easily prevent libraries from continuing this efficient and legitimate practice. Even if the mass market licenses were not unilateral, the loss of copyright balance and the first sale framework also leaves an impossibly complex practical and legal burden for libraries which would have to negotiate many different licenses. Specifically trained library staff would have to address each information product separately in an attempt to negotiate and secure appropriate patron access. Because library users are not in privity of contract, libraries face particularly daunting legal and practical obstacles in attempting to enforce license terms against library users. The option to return the material for a refund is hardly ameliorating.