Page:A White Paper on Controlled Digital Lending of Library Books.pdf/14

 purpose and character assessment under the first fair use factor. Those include looking to Section 1201 exceptions for interoperability, Section 110 exceptions for nonprofit public performances and teaching, and Section 117 exceptions for computer program adaptation.

For CDL, the purpose of the use is one that intends to mirror the basic purpose of first sale as embodied in Section 109. In Kirtsaeng v. John Wiley & Sons, Inc., the Supreme Court recognized, “for at least a century the “first sale” doctrine has played an important role in American copyright law.” It has a “common-law doctrine with an impeccable historic pedigree,” that limits a rightsholders ability to restrain subsequent dispositions, facilitating competition “to the advantage of the consumer” and freeing the courts “from the administrative burden of trying to enforce restrictions upon difficult-to-trace, readily movable goods.”

As technology and markets have shifted, libraries employing CDL seek to use technology to hold up that same balance of rights while allowing users to access materials in formats that are most meaningful to them today. CDL promotes consumer choice in formats and platforms, while avoiding dragging courts into the thicket of restrictions and rights conflicts that would require extensive litigation to resolve. CDL also preserves the balance of rights carved out by Congress through Section 109 by requiring libraries to have legitimately acquired their own copies and limiting access to digital surrogate copies on terms consistent with ownership of the physical copy. Under CDL, if one copy is purchased, a library can only lend one copy—either print or physical—out to a user at a time.

As appealing as the pure application of the principles of first sale to digital distribution may be, we recognize that standing alone, such uses may not tilt the “purpose and character” analysis in favor of the use in all circumstances. There are no cases on point directly addressing the interaction between Section 109 and Page 14