Page:A White Paper on Controlled Digital Lending of Library Books.pdf/22

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the use is to be fair; lengthier reuse would tend to compete with the original. However, courts have clearly tied the assessment under the third factor to the purpose and character assessment.^[1] Courts held on many occasions that use of an entire work, when necessary to fulfill a valid purpose, does not weigh against the use.^[2] What matters is how the amount used aligns with an acceptable purpose under the first factor. “The extent of permissible copying varies with the purpose and character of the use.”^[3]

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.^[4] Technical restrictions on reuse of the files limit their ability to be reused for purposes beyond those intended by the lending library. So, the third factor should be neutral or weigh in favor of the use because copying the entire work is necessary for the purpose of lending, and controls on reuse effectively place limitations on the “amount” of the work the user obtains access to.

↑ Authors Guild, Inc. v. HathiTrust, 755 F. 3d 87, 96 (2d Cir. 2014) (“In weighing this factor, we assess the quantity and value of the material used and whether the amount copied is reasonable in relation to the purported justification under the first factor.”).
↑ See, e.g., Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 460 (1984) (“the fact that the entire work is reproduced … does not have its ordinary effect of militating against a finding of fair use”); Bouchat v. Baltimore Ravens Ltd. Partn., 737 F.3d 932, 943 (4th Cir. 2013), as amended (Jan. 14, 2014) (use of entire work allowable to achieve permissible purpose); A.V. ex rel. Vanderhye v. iParadigms, LLC, 562 F.3d 630 (4th Cir. 2009); Chicago Bd. of Educ. v. Substance, Inc., 354 F.3d 624, 629 (7th Cir. 2003) (“there is no per se rule against copying in the name of fair use an entire copyrighted work if necessary”); Sundeman v. Seajay Socy., Inc., 142 F.3d 194, 206 (4th Cir. 1998) (amount and substantiality factor weighed in favor when copy provided to researcher was complete copy because for her scholarly work she “needed access to either the original or an entire copy”).
↑ Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 586–87 (1994). See also Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 613 (2d Cir. 2006) (finding the third factor favored the use when displaying “reduced versions of the original images and intermingled these visuals with text and original graphic art.” “[C]ourts have concluded that [copying an entire work] does not necessarily weigh against fair use because copying the entirety of a work is sometimes necessary to make a fair use of the image. … Adopting this reasoning, we conclude that the third-factor inquiry must take into account that the “the extent of permissible copying varies with the purpose and character of the use.”).
↑ See Perfect 10, Inc. v. Amazon.com, Inc., 508 F. 3d 1146 (9^th Cir. 2007); Kelly v. Arriba Soft Corp., 336 F. 3d 811 (9^th Cir. 2003).

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[1] Authors Guild, Inc. v. HathiTrust, 755 F. 3d 87, 96 (2d Cir. 2014) (“In weighing this factor, we assess the quantity and value of the material used and whether the amount copied is reasonable in relation to the purported justification under the first factor.”).

[2] See, e.g., Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 460 (1984) (“the fact that the entire work is reproduced … does not have its ordinary effect of militating against a finding of fair use”); Bouchat v. Baltimore Ravens Ltd. Partn., 737 F.3d 932, 943 (4th Cir. 2013), as amended (Jan. 14, 2014) (use of entire work allowable to achieve permissible purpose); A.V. ex rel. Vanderhye v. iParadigms, LLC, 562 F.3d 630 (4th Cir. 2009); Chicago Bd. of Educ. v. Substance, Inc., 354 F.3d 624, 629 (7th Cir. 2003) (“there is no per se rule against copying in the name of fair use an entire copyrighted work if necessary”); Sundeman v. Seajay Socy., Inc., 142 F.3d 194, 206 (4th Cir. 1998) (amount and substantiality factor weighed in favor when copy provided to researcher was complete copy because for her scholarly work she “needed access to either the original or an entire copy”).

[3] Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 586–87 (1994). See also Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 613 (2d Cir. 2006) (finding the third factor favored the use when displaying “reduced versions of the original images and intermingled these visuals with text and original graphic art.” “[C]ourts have concluded that [copying an entire work] does not necessarily weigh against fair use because copying the entirety of a work is sometimes necessary to make a fair use of the image. … Adopting this reasoning, we conclude that the third-factor inquiry must take into account that the “the extent of permissible copying varies with the purpose and character of the use.”).

[4] See Perfect 10, Inc. v. Amazon.com, Inc., 508 F. 3d 1146 (9^th Cir. 2007); Kelly v. Arriba Soft Corp., 336 F. 3d 811 (9^th Cir. 2003).

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