Threats to Digital Lending

American Libraries reporting:
...The situation in Kansas highlights the uncertainty about ownership of ebook content. What is ownership, after all? Perpetual access under certain conditions defined in the contract? True ownership, where the library can sell or discard its digital copy?
Check out your ebook licenses; if you think you own the ebooks that you paid for, think again. A thorough examination of the contract language may indicate that you are only renting the content, which would mean you have to pay the rent every year or risk losing all of your ebooks. State and local government officials might question what you have been doing with the money appropriated to fund your public library: “You say you bought the books, but now you don’t have them anymore? Sounds like tax dollars down the drain.”
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Contracts for digital content can also legally circumvent user rights that we value in the print world. Here, the right of first sale under the copyright law is of greatest concern. First sale allows the owner of a lawfully acquired copy of a work the right to lend that copy or rent or dispose of it. Libraries can purchase resources and lend them at no cost to the user because of first sale, which is an exception to an exclusive right of copyright—in this case the distribution right. But there is no digital first sale right per se, unless a license agreement expressly says so.
Some troubling scenarios already exist: limiting the number of loans unless an additional payment is made, as in the HarperCollins 26-loan business model, Penguin delaying access to such high-demand e-content as new releases, and Hachette refusing to sell any new ebook releases to libraries. The worst-case scenario is already practiced by two publishers: Neither Macmillan nor Simon & Schuster sell ebooks to libraries at all. And Brilliance Solutions has decided to suspend the availability of its audiobooks for library download as of January 31.
The very real possibility that libraries may find themselves unable to lend escalates as more content is made available only in digital formats under stricter contract terms. In addition, other library functions—preservation, interlibrary loan, and fair use, to name a few—may also be forbidden when dealing with digital materials...http://americanlibrariesmagazine.org/features/01122012/threats-digital-lending