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We do not offer pre-written essays All our essays and assignments are written from scratch and are not connected to any essay database. Urgent orders are delivered on time Do you have an urgent order that you need delivered but have no idea on how to do it? We offer some operational suggestions about these practices in Part IV of this paper. However, courts have clearly tied the assessment under the third factor to the purpose and character assessment.

For CDL, the purpose of the use is to enable full-text access to books, so readers can read them online. Arguably, that means the entire work is used.

However, CDL does place limits on use of the work; it imposes temporal limits on use loans are not indefinite and calls for technological controls on copying that limit further dissemination. These limitations are in many ways similar, for example, to situations in which search engines have been found to have made fair use with low-resolution images. The fourth fair use factor is tied closely together with the first factor analysis.

In conducting the analysis, courts have looked at not only market effects for the particular work in the format used, but also at effects on the much broader set of potential licensing markets that may have been usurped by the use.

Courts have acknowledged that examining licensing markets introduces a degree of circularity; in theory the fact that a use was made at all indicates a potential licensing market that the rightsholder could have exploited. For CDL, the primary reason why the market harm factor weighs in favor of the use is because the market effect of CDL is nearly identical to the market effect already favored under the first sale doctrine.

For the works at issue, the controls that CDL requires ensure that the use closely matches the market effect that the rightsholder was already compensated for upon first sale of the book. For example, the Copyright Act does not grant a copyright owner the right to control negative commentary or criticism of its work, [] uses favored under the first factor.

If criticism results in lost sales, is not the type of harm recognized under the fourth fair use factor. The first sale doctrine itself is intended as a limit on the scope of markets that rightsholders can control. Thus, CDL does not negatively affect the market any differently than the uses already permitted by libraries when lending books physically. A library that owns a single copy of a book could only lend a single copy out at a time. If the digital version is checked out and viewed by a patron, the corresponding physical version must be restricted and controlled e.

Likewise, mimicking the restraints on physical materials in which only one user can typically check out and read a physical book at a time, only one user would be permitted to check out and read the digital book at any given time. From a single transaction standpoint, the library making the CDL use must still have acquired legitimately the book in physical format before lending.

What CDL does is allow a change of the format in which that lend is made. When the digital copy is being read by a patron, however, the physical copy is restricted and unavailable for consultation, so there is no situation in which the library is getting use of two copies for the price of one. Similarly, for the aggregated effect question—what if everyone did it?

We acknowledge that these controls do not address the full range of market concerns raised by others. In the context of broader debates about digital first sale, the primary objections raised by rightsholders were related to market disruption. The two primary collections of these objections are the U. Copyright Office report addressing digital first sale, and a similar and updated U.

O report. 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. 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. 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 s when the Copyright Act was enacted.

But those markets do not belong to the copyright holder. We do acknowledge, however, that the first sale doctrine was developed by the courts and embraced by Congress in the context of a physical environment where transaction costs were high.

With that argument is the implicit suggestion that, like the friction discussed above, degradation was implicitly calculated into the balance of rights Congress arrived at when codifying the first sale doctrine.

For one, this argument fails to appreciate that for long-term digital copies do degrade and require significant effort to maintain.

Systems need to be migrated periodically, and platforms updated to interact with current technology. HathiTrust, for example, reports replacing storage hardware every 3—4 years. So, the stored digital copy used for lending does degrade over time and in reaction to use, just in ways that are not entirely analogous to the more gradual and straightforward entropy of the physical book.

Those facts aside, to our knowledge no court has ever tied the application of the first sale doctrine to a required, planned degradation of the format in which the copy exists. Since the first recognition of the first sale doctrine over years ago, the advent of acid-free paper, improved binding technology, media such as microform and magnetic tape and other innovations have extended the life of physical works dramatically. Driven in part by a lack of market availability, libraries repair, strengthen, and rebind many books in their collections, in large part because replacements cannot be purchased.

The idea has no connection to the statutory or judicial development of the rationale for first sale, and it fails to account for how digital storage and transmission do encounter degradation that is consistent with if not more severe than physical degradation.

Finally, the third market-harm concern is that digital distribution raises greatly increased risks of piracy. In its report addressing digital first sale, the U. Courts have taken security concerns seriously. HathiTrust , for example, the Second Circuit gave considerable attention to the security precautions HathiTrust had put into place for the digitized volumes in its collection.

Digital distribution of copyrighted works is exceedingly common. For CDL, we see the risks as no greater than any other digital transaction. Publishers regularly license electronic books for digital distribution without any discernable market premium added to account for the additional risk of impermissible downstream copying.

For libraries, security issues should be taken seriously, which they are by design through the six CDL controls described above. Like the approach taken by HathiTrust, the repository of digital copies must be secured from unintended access. Going even beyond the HathiTrust case, CDL would require physical access to works be restricted as well, while digital copies are lent.

In addition, the files lent must be controlled in some significant way e. Many publishers use and are comfortable with security implemented through systems like Overdrive, or using Adobe Digital Editions. For CDL, the most effective and defensible approach may be to use those very same copy and piracy controls that publishers themselves employ for distribution of their licensed e-book content.

Finally, a secondary but important reason why CDL would fare well under the market harm analysis is because it addresses a broad market failure, particularly with respect to the 20 th century books that are generally not available in digital formats. For these 20 th century books, we believe the fair use argument is strongest. The most significant market failure for these books is with truly orphaned works—i.

But the 20 th century book market suffers from market failure even when owners are known. Failure of rightsholders to exploit the e-book market likely has many causes. Some of those are production-related transaction costs, some are due to the complex thickets of rights associated with each work, [] and some are likely due just to competing priorities. In all such cases, books are not commercially available in digital form. High transaction costs make it economically unviable for a willing rightsholder and a willing user to negotiate for a sale.

For example, in Cambridge University Press v. The Eleventh Circuit found this significant in weighing the fourth factor:. The prohibition of such noncommercial uses would merely inhibit access to ideas without any countervailing benefit. So, for books published in this time period as a whole, there is a strong argument that they collectively represent a market failure. Part of that failure is due to high costs of determining commercial availability for any given work.

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