struggled to identify what is a “particular” copy in the digital realm.[1] Is the transfer of a digital copy from one device to another the transfer of a particular copy or the creation of a new copy? While we wait for the courts to sort out this statutory interpretation issue, libraries that seek to utilize CDL should still be able to apply the first sale doctrine’s rationale in the fair use context.
Much of the literature on first sale applied in the digital environment recognizes that library lending raises unique concerns requiring special treatment.[2] Though other use scenarios are certainly possible, we view library lending uses as special, as detailed in the sections below, and of all uses among the most likely to be justified under a fair use rationale. Indeed, several libraries have already engaged in limited CDL for years without issue, indicating perhaps a tacit acknowledgement of the strength of their legal position.[3] So, while the concept of digital first sale may have many potential applications, our focus is on a narrow and specialized use by libraries. We limit our analysis to non-commercial, controlled, digital lending by U.S. libraries of digitized copies of print books held in their collections.[4]
- B. Fair Use
That brings us next to fair use. Fair use applies to uses implicating any or all of the copyright holder’s exclusive rights, including both public distribution and the right to control reproductions.[5] Like the first sale doctrine, fair use is widely used and entire industries (e.g., home recording device manufacturers, search engines, filmmakers, publishers) rely on it.[6] Described as an “equitable rule of
- ↑ Capitol Records, LLC v. ReDigi Inc., 934 F. Supp. 2d 640, 649 (S.D.N.Y. 2013).
- ↑ DMCA Section 104 Report, supra note 11, at 104–105 (addressing library specific issues); U.S. Patent & Trademark Office, White Paper on Remixes, First Sale, and Statutory Damages 48, 50 (2016), https://perma.cc/RJ7Z-5REZ [hereinafter USPTO First Sale Study], Brief of Amici Curiae American Library Association, Association of College and Research Libraries, Association of Research Libraries, and Internet Archive in Support of Reversal, Capitol Records, LLC v. Redigi Inc., Case No. 16-2321-cv (2d Cir. 2016), https://perma.cc/79AL-649N; Michelle Wu, Piece by Piece Review of Digitize-and-Lend Projects Through the Lens of Copyright and Fair Use, 36 Legal Ref. Serv. Q. 51 (2017), https://doi.org/10.1080/0270319X.2017.1359059.
- ↑ Geoggrey A. Fowler, Libraries Have a Novel Idea, Wall St. J. (June 29, 2010) https://perma.cc/H4H3-ZJXZ (describing efforts by the Internet Archive, Boston Public Library and others to engage in digital lending activities).
- ↑ Fair use is a US legal concept. Our analysis is limited to U.S. law.
- ↑ 17 U.S.C. § 107 (2018) (Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work … is not an infringement of copyright.”).
- ↑ See, e.g., Computer & Communications Industry Association, Fair Use in the U.S. Economy: Economic Contribution of Industries Relying on Fair Use (2017), https://perma.cc/EGH4-N88D (summarizing industries reliant on fair use).
