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the time, and despite hearing strong arguments and evidence from advocates on both sides of the issue, the Office concluded that it does not and should not apply to digital transactions, mostly because the technology in 2001 was unable to sufficiently guarantee the “owned to loaned” ratio. Instead, it was simply a good faith effort to “forward and delete” copies on a case-by-case basis.^[1] More recently, the United States Department of Commerce studied the issue itself and released a white paper in 2016 expressing its own conclusion: the technology and licensing markets were not yet adequately developed, leading it to adopt a “wait and see approach.”^[2] Scholarship on “digital first sale” and related concepts has flourished in recent years.^[3] And most recently Capitol Records v. ReDigi, LLC, has raised the question of how these doctrines apply to a commercial, digital resale market for mp3s.^[4]

Again, the literature on digital first sale recognizes that library most likely will require special treatment.^[5] Other use scenarios are possible, and, as detailed below, we view library lending uses as special. And we also believe that these library uses, of all the varying digital uses, are among the most likely to be justified under a fair use rationale. Several libraries have already engaged in limited CDL for years without issue.^[6] It can be inferred that this fact indicates a

↑ DMCA Section 104 Report, supra note 11, at 80, 90 (“[W]hen the owner of a lawful copy of a copyrighted work digitally transmits that work in a way that exercises the reproduction right without authorization, section 109 does not provide a defense to infringement” and “we recommend no change to section 109 at this time”).
↑ USPTO First Sale Study, supra note 29, at 58 (examining a wide range of potential applications, including library uses, but ultimately concluding that “we cannot at this time recommend extending the first sale doctrine to apply to digital transmissions of copyrighted works.”).
↑ For some representative work, see Aaron Perzanowski & Jason Schultz, Digital Exhaustion, 58 UCLA L. Rev. 889 (2011); R. Anthony Reese, The First Sale Doctrine in the Era of Digital Networks, 44 B.C. L. Rev. 577, 584 (2003); Victor F. Calaba, Quibbles ‘n Bits: Making A Digital First Sale Doctrine Feasible, 9 Mich. Telecomm. Tech. L. Rev. 1 (2002).
↑ 934 F. Supp. 2d 640 (2013), on appeal, Case No. 16-2321-cv (2d Cir. 2016). The district court in this case concluded that neither first sale nor fair use applied, though its analysis on the latter was abbreviated and the case is currently on appeal before the Second Circuit Court of Appeal.
↑ DMCA Section 104 Report, supra note 11, at 104–105 (addressing library specific issues); USPTO First Sale Study, supra note 29, at 48, 50; 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).

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[1] DMCA Section 104 Report, supra note 11, at 80, 90 (“[W]hen the owner of a lawful copy of a copyrighted work digitally transmits that work in a way that exercises the reproduction right without authorization, section 109 does not provide a defense to infringement” and “we recommend no change to section 109 at this time”).

[2] USPTO First Sale Study, supra note 29, at 58 (examining a wide range of potential applications, including library uses, but ultimately concluding that “we cannot at this time recommend extending the first sale doctrine to apply to digital transmissions of copyrighted works.”).

[3] For some representative work, see Aaron Perzanowski & Jason Schultz, Digital Exhaustion, 58 UCLA L. Rev. 889 (2011); R. Anthony Reese, The First Sale Doctrine in the Era of Digital Networks, 44 B.C. L. Rev. 577, 584 (2003); Victor F. Calaba, Quibbles ‘n Bits: Making A Digital First Sale Doctrine Feasible, 9 Mich. Telecomm. Tech. L. Rev. 1 (2002).

[4] 934 F. Supp. 2d 640 (2013), on appeal, Case No. 16-2321-cv (2d Cir. 2016). The district court in this case concluded that neither first sale nor fair use applied, though its analysis on the latter was abbreviated and the case is currently on appeal before the Second Circuit Court of Appeal.

[5] DMCA Section 104 Report, supra note 11, at 104–105 (addressing library specific issues); USPTO First Sale Study, supra note 29, at 48, 50; 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.

[6] 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).

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