The e-book will open a new front in an ongoing legal revolution.

The New York Times reports today that “[f]or a decade, consumers mostly ignored electronic book devices, which were often hard to use and offered few popular items to read. But this year, in part because of the popularity of Amazon.com’s wireless Kindle device, the e-book has started to take hold.”

An e-book that works well is a dream of mine.  At any given moment, I literally am reading 25 different books.  Whenever I travel, one of my toughest choices is which 2 or 3 I’ll bring with me.  Not only are my infinitely wide, but my moods change constantly.

But as the e-book takes hold, expect a new wave in the copyright wars.  With more and more books being published in electronic form, they’ll be as easy to copy and disseminate as music is now.  So illegal copying and distribution will be inevitable.

In addition, the cutting and pasting of portions of books will create a whole new set of questions regarding fair use.  We will witness the resurrection of the commonplace book:

“Commonplacing is the practice of entering literary excerpts and personal comments into a private journal, that is, into a commonplace book or, to use a 17th century synonym, a silva rerum (“a forest of things”).  Typically the excerpts were regarded as exceptionally insightful or beautiful or as applicable to a variety of situations, and so as such they are often especially quotable. . . . The practice of commonplacing can be traced back in the European tradition to the 5th Century B.C.E. and the Sophist Protagoras.

Historically commonplacing has played an important role in education, and it has served as a vital tool of erudition.

“Boys … had to keep notebooks or commonplace books in which to record, and then learn, idioms, quotations, or figures useful in composition or declamation. Not a little of that wide learning and impressive range of quotation adorning Elizabethan literature comes from these commonplace books.” Schools in Tudor England, by Craig R. Thompson (Washington: Folger Shakespeare Library, 1958): p. 16, cf. 44.

“Students with literary tastes, in days when books were hard to come by, kept ‘commonplace’ or notebooks into which they copied out verses or prose extracts that particularly appealed to them.” The Intellectual Life of Colonial New England, by Samuel Eliot Morison (Ithaca: Cornell University Press, 1965; reprint of the 2nd ed., 1956): p. 49.

–Norman Elliott Anderson, Commonplacing in the Spiritual Traditions

Will a professor’s commonplace book require permission for the reprinting of every excerpt?  There inevitably will be questions about when the excerpts are too long, though I would imagine a collection of excerpts that are small enough and together comprise a wholly new work (a literary collage) should be considered transformative enough to constitute fair use.  Inevitably, though, there will be lawsuits arising in particular situations.

Charges of plagiarism, no doubt, will also increase.  I strongly suspect that some of the recent incidents of plagiarism involving respected writers were the results of the inevitable errors that creep into works that require an enormous amount of research.  A quotation taken during research from one work is mistaken at the writing stage as a paraphrase and ends up verbatim in the finished product.  Someone spots the quotation (a process that will be even easier when the texts themselves are all electronic), and, voilà, charges of plagiarism fly through the blogosphere and plague the historian for the rest of her career.

These legal problems are inevitable.  I’ve said it before and I’ll say it again.  Law is a product of the material circumstances in which it arises, not an abstract set of truths brought down and imposed on reality.  When the material circumstances change, the law will have to change.  We are living through the most profound change in the availability of information since Gutenberg.  The law will change, and it will be a very interesting ride.