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

 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. Courts held on many occasions that use of an entire work, when necessary to fulfill a valid purpose, does not weigh against the use. 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.”

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. 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. Page 22