use is of a commercial nature or is for nonprofit educational purposes.”[1] And the Supreme Court has explained, “[t]he crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.”[2]
Libraries engaging in CDL, as we envision it, will not generate monetary profit. Given the costs of digitizing, building and maintaining the technical infrastructure necessary to lending digitally and controlling physical copies, and personnel time used to restrict print copies when its digital equivalent is circulating, libraries may spend considerable sums with no compensation. To be sure, libraries and their users would stand to benefit from CDL. We would not propose it if they did not. But under the CDL model we envision, libraries have already paid the customary price, and CDL limits access to a work to one person at a time. Further, when 20th century books are in question, no market has emerged for digital access to the majority of these books, meaning that no digital access would otherwise be possible.
Libraries engaging in CDL are doing so to enable broad availability of knowledge for the purpose of promoting research, scholarship and learning. These are uses specifically mentioned as examples of fair use by Congress in the statute,[3] and are at the core of the constitutional purpose of the copyright system. Library lending is a critical conduit for those activities, which courts have recognized. For example, in a 1973 case before the U.S. Court of Claims, a non-profit library’s role in supporting scientific research by providing copies of articles to researchers was held to weigh strongly in favor of fair use.[4] Even
- ↑ 17 U.S.C. § 107 (2018).
- ↑ Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 562 (1985). See also Sundeman v. Seajay Socy., Inc., 142 F.3d 194, 203 (4th Cir. 1998) (finding that where an archives provided a copy of an unpublished manuscript to a researcher, the purpose of the use favored fair use where there was no commercial or exploitative motive for the use).
- ↑ 17 U.S.C. §107. As stated above, most courts have addressed these examples as merely illustrative. A handful of courts have indicated that uses within these categories means that the “purpose and character” analysis presumptively falls in favor of fair use, though that presumption has not been adopted by most circuits. See NXIVM Corp. v. Ross Inst., 364 F.3d 471, 477 (2d Cir. 2004) (“[T]here is a strong presumption that factor one favors the defendant if the allegedly infringing work fits the description of uses described in section 107.”) (quoting Wright v. Warner Books, Inc., 953 F.2d 731, 736 (2d Cir. 1991)).
- ↑ Williams & Wilkins Co. v. United States, 487 F.2d 1345, 1354 (Ct. Cl. 1973), aff’d by an equally divided court, 420 U.S. 376 (1975). In this case Williams & Wilkins challenged the National Library of Medicine’s photocopying practices for medical researchers. The U.S. Court of Claims observed the significance that “NIH and NLM are non-profit institutions, devoted solely to the advancement and dissemination of medical knowledge which they seek to further by the challenged practices, and are not attempting to profit or gain financially by the photocopying … the medical researchers who have asked these libraries for the photocopies are in this particular
