Page:A White Paper on Controlled Digital Lending of Library Books.pdf/10

 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. 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.” Scholarship on “digital first sale” and related concepts has flourished in recent years. 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.

Again, the literature on digital first sale recognizes that library most likely will require special treatment. 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. It can be inferred that this fact indicates a Page 10