Page:A White Paper on Controlled Digital Lending of Library Books.pdf/18

 much more recently in a case in which the facts indicated an otherwise uncompelling fair use assertion, the non-commercial educational purpose of library distribution was found by the 10th Circuit Court of Appeals to be “at the heart of the protection of fair use.”

Courts have often considered the broader public benefit of the use as well, favoring uses that “typically involve[] the development of art, science, and industry.” CDL contributes substantial broad benefits to public knowledge by allowing the public, for the first time, to access particular materials digitally. For public libraries, especially when these collections have been purchased by tax dollars, it is in the public’s best interest to have modern access to these works, which were purchased for their benefit.

In summary, we view the purpose and character of the use for CDL to be favored because the purpose is aligned with the principles of another statutory exception (section 109), while the use itself is temporary, non-commercial and leading to important public benefits in research and learning.
 * 3.Concerns

Our goal with this paper is to give libraries and their counsel as complete a view of the law regarding CDL as we can. So, it’s fair to note a couple of points of concern under the first factor analysis. The first is, despite the strong trend found in the above cases favoring library and educational use, there are a limited number of library fair use cases from which to draw guidance. These include some cases involving academic or scholarly uses in which courts have held that the first factor did not favor the use. Although libraries rely on fair use routinely, the small number of cases means that when applying a doctrine based Page 18