videos) courts have found it necessary to address the issues raised in those reports.[1]
Those reports raise three additional concerns that may differentiate digital lending from physical lending, that: 1) digital distribution eliminates transactional friction inherent in physical loans; 2) digital copies don’t degrade like physical works; and 3) digital distribution raises security and piracy risks. We address each below. Ultimately, we conclude that none should pose an obstacle to well-designed controlled digital lending system. While we do not believe libraries implementing CDL must respond to these concerns, a conservative CDL system may take these factors into account. We identify ways to do so in Part IV of this paper.
- a)“Digital distribution eliminates transactional friction inherent with physical loans.”
Movement of a copy from one location to another takes time; vehicles must drive and deliver copies, acting as a “natural brake on the effect of resales on the copyright owner’s market.”[2] For libraries, it takes time for returned books to make their way back on to shelves, and to check them out again to the next patron. For loans out to patrons in other locations, interlibrary loan adds an additional layer of delay. For digital transactions factors such as time and space no longer act as major impediments to transfer. The question is, should they, in order to more closely mimic the physical lending environment that exists with print?
By its terms, the Copyright Act does not grant rightsholders a right to transactional friction, nor does the Copyright Act freeze in time the historical conditions under which copies are bought and sold or lent. Amazon has dramatically altered the used book market, removing barriers to the flow of those books. Amazon (or libraries) using drones to deliver physical books to one’s doorstep yet faster is no less an impingement on a rightsholder’s market than a digital transaction that moves a copy yet more quickly. Such advancements have already occurred; advances in interlibrary loan services such as RapidILL and BorrowDirect mean books now move quickly and seamlessly between libraries in dramatically less time than in the 1970s when the Copyright Act was enacted.[3] Certainly other actors—FedEx, the fuel suppliers, physical book
- ↑ Capitol Records, LLC v. ReDigi Inc., 934 F. Supp. 2d at ; Disney Enters. Inc. v. Redbox Automated Retail LLC, No. 17-CV-8655, 2018 WL 1942139, at *7–9 (C.D. Cal. Feb. 20, 2018).
- ↑ DMCA Section 104 Report, supra note 11, at 83.
- ↑ See RapidILL, http://rapidill.org/ (last visited September 14, 2018); BorrowDirect, http://www.borrowdirect.org/ (last visited September 14, 2018) (3–5 day delivery for materials across a federated catalog of 90 million plus volumes from the Ivy Plus libraries).
