Page:A White Paper on Controlled Digital Lending of Library Books.pdf/19

 on caselaw development, there is some uncertainty. This is a general caution, and could be said for any new application of fair use to library practice. Further, in many ways this is a testament to the low level of risk libraries generally face; libraries seldom attract lawsuits, and on CDL specifically, there are no lawsuits that reflect negatively on the core principles of CDL.

The second and more considerable point of concern is that CDL is not clearly transformative. In recent years, U.S. courts have focused increasingly on whether an alleged fair use is “transformative, ” which is, if it “adds something new, with a further purpose or different character, altering the first with new expression, meaning or message.” Use of a quotation from an earlier work in a critical essay to illustrate the essayist’s argument is a classic example of transformative use. In mass digitization cases involving books—Google Books and HathiTrust, for example—courts have largely focused on how those projects enabled transformative access to information by enabling text search, as well as research uses such as text and data mining.

However, even if CDL is not transformative, we believe the purpose and character still strongly weighs in favor of a fair use finding. The courts have been clear that “[w]hile a transformative use is generally more likely to qualify as fair use, ‘transformative use’ is not absolutely necessary for a finding of fair use.’ [sic]” In HathiTrust, for example, the Second Circuit found that libraries providing full-text access to print-disabled users was not transformative. “The Authors state that they ‘write books to be read (or listened to).’ … By making copies available in formats accessible to the disabled, [HathiTrust] enables a larger audience to read those works, but the underlying purpose of [HathiTrusts’sHathiTrusts’ [sic]] use is the same as the authorsauthors’ [sic] original purpose.”

Nevertheless, the court concluded that that the use was fair, and favored under the first fair use factor in part because of is alignment with other Page 19