tacit acknowledgement of the strength of their legal position. Our focus is on these narrow and specialized use by libraries. Again, we limit our analysis to non-commercial, controlled, digital lending by U.S. libraries of digitized copies of print books held in their collections.[1]
In applying fair use, not every factor in the analysis will be highly relevant in every situation.[2] As we will show, for CDL, the first factor, “purpose and character of the use,” and the fourth factor “effect on the potential market” are the most significant.
- A.The Purpose and Character of the Use
Under the first fair use factor, “purpose and character of the use,” two characteristics of CDL stand out, weighing this factor in favor of fair use: 1) CDL’s purpose aligns closely with the statutory purpose of the first sale doctrine, and 2) the noncommercial, temporary, character of the use to fulfill research and learning purposes are aligned with the statutory examples of fair use as well as the underlying purposes of the copyright system to disseminate knowledge.
- 1.CDL’s Alignment with the Statutory Purpose of First Sale
The core concept with CDL is that it closely mimics the economic transaction that Congress has already provided for through the first sale doctrine under Section 109. The purpose of the use with CDL is to fulfill the statutory objectives and balance of rights already identified by Congress in Section 109, effectuating that balance considering a new technological use not contemplated at the time Section 109 was enacted.[3] The crux of the proposition is that the purpose and intent of Section 109 should positively influence the “purpose and character” assessment in the fair use analysis.[4]
- ↑ Fair use is a US legal concept. Our analysis is limited to U.S. law.
- ↑ See Kienitz v. Sconnie Nation LLC, 766 F.3d 756, 759 (7th Cir. 2014) (in a case involving a t-shirt that used a mayor’s official photograph in protest to his decision to shut down their annual block party, dismissing two of the four factors as having not much “bite in this litigation,” “[t]he other statutory factors don't do much in this case.”).
- ↑ Section 109(a) was enacted in 1976. Congress has requested study of potential changes, but has not substantially modified its text since. See Pub. L. 105–304, title I, § 104, Oct. 28, 1998, 112 Stat. 2876, requiring a study on Section 109 (and 117) and their effect on electronic commerce and associated technology.
- ↑ For a more detailed discussion, see Jonathan Band, The Impact of Substantial Compliance with Copyright Exceptions on Fair Use, 59 J. Copyright Soc’y U.S.A. 453 (2012) (discussing at length the interaction between Section 108—library and archives exceptions—with fair use). See also at Jonathan Band, The Impact of Specific Exceptions on Fair Use: An Update, 63 J. Copyright Socy. U.S.A. 325 (2016).
