<i>Decision of Note</i>: Second Circuit Rules on e-Book Sample in Digital Locker

Louis K. Smith, author of a book titled The Hardscrabble Zone, entered into an agreement for Smashwords to publish an e-version of the book. Smith sued BarnesandNoble.com after he terminated his agreement with Smashwords. The copyright infringement suit complained about a licensed sample from Smith's book on one BarnesandNoble.com customer's digital locker. The U.S. District Court for the Southern District of New York decided that BarnesandNoble.com wasn't liable for either direct or contributory copyright infringement.

Declining to address the infringement issue “given the sparse facts of the case,” the Second Circuit instead noted: “The plaintiff had a distribution agreement that explicitly permitted the distribution of samples as promotional material.” The appeals court added: “[T]he agreement provides for the distribution of samples with a license 'for free, noncommercial use, duplication and sharing,' without provision to terminate the license for samples already distributed in the event the distribution agreement itself is terminated. Significantly, the distribution agreement authorizes paper samples as well as digital samples, and treats them alike. Since a customer who has a paper sample may obviously keep it, reread it, and make additional paper copies of it for noncommercial use at will, it follows that the agreement does not provide or imply that a person who obtained a digital sample would lose the license for free access upon termination of the distribution agreement.”