Whenever I post anything about Apple, I’m guaranteed to get comments from Apple fans, and last week was no exception. However, Ben Karel posted some very thoughtful commentary that suggests a most interesting possibility. In my original post, I pointed to an effort to get Apple to try and help libraries circulate audio ebooks to patrons with iPods and to play nicely with others in the industry. In the comments to that post, Ben and I differed on who is to blame for the current situation, but his last comment really has my mind going.

“There are relatively cheap technological solutions to this particular (technological) problem. By ‘relatively’ cheap I mean less than two thousand dollars for the hardware and software infrastructure. Considering that it would probably double the number of patrons able to listen to library ebooks on their player of choice for a one-time fee amounting to a fifth of the price of a single year's subscription, said technological solutions would be a no-brainer were it not for the DMCA's prohibitions upon any and all forms of DRM circumvention.

Hmm. But wait! According to http://www4.law.cornell.edu/uscode/17/usc_sec_17_00001201----000-.html , Provision (a)(1)(B) states that the ban on circumvention of copyright-protecting technological measures does not apply to users who are ‘adversely affected by virtue of such prohibition in their ability to make noninfringing uses of that particular class of works under this title [...]’. I'm not entirely sure, but I think the next two subparagraphs essentially say that only the Librarian of Congress has the authority to [pre!?-]determine when the exemption in rule (B) applies.

So perhaps the route of least resistance is to forget about Apple entirely and instead convince the Librarian of Congress that the DMCA should count 'audiobooks in public libraries' as a class of copyrighted works deserving of an exemption to aid in noninfringing use by the majority of library patrons.

Also something to consider: the DMCA seems to focus on technologies that short-circuit the process of gaining access to a protected work. Little seems to be said about one may do with that work after having gained access.

Oh. Stupid me. The DMCA already has a built-in exemption for libraries and other such nonprofit entities, which means it looks like you're free to convert those problematic encrypted WMA files into MP3 so that the majority of your patrons will be able to access and play said files in a noninfringing manner.

No doubt a real lawyer ought to examine this, but... Problem solved?”

In the immortal words of Neo, whoa!

It's an interesting idea. So now, I’m wondering if we could really do this. After all, there’s a difference between “letter-of-the-law-right-with-a-true-loophole” and “letter-of-the-law-right, go-for-it but get-your-butt-sued-out-of-existence-and-the-loophole-closed-forever.” Which, of course, is exactly what legislation like the DMCA is designed to do – stop you from even thinking about trying anything for which you could even remotely, possibly be sued for actually doing.

So now I’m in a pinch. Illinois LSTA grants are due in June, and this year there’s finally a "dream big" one that my organization could apply for. I’ve already pitched a half dozen ideas, two of which we’re probably going to submit and one of which a member library is going to submit. But what if we submitted a grant to actually do what Ben proposes? What would the implications be? Is it realistic? Would we still exist in a year or would the legal bills kill us? Would it ultimately open up circulation of digital files in libraries or end it forever? I'm not a fan of DRM, but I also don't want to see libraries used for illegal copying (a whole other debate). Is there an open source type of DRM for these files? I’m not a lawyer, and I don’t play one on TV, so I'd be interested to hear reactions from others on this.