This is straightforward
Posted: Sat Jul 12, 2025 4:08 am
As the defendant in a years-long fair use case of our own—recently scheduled for oral argument on March 20th—we are all too familiar with this aspect of the law. As our case demonstrates, the economic challenges of fair use are not only about legal fees; economics are embedded in the doctrine. In some ways, this is a good thing.
For example, as we explained in our brief, fair use has always been concerned with protecting non-profit and educational uses of copyrighted works. When considering whether a particular use is fair, the first question is ordinarily whether it’s “noncommercial.”
With respect to our own book collections, : the books are lawfully acquired, digitized at our own expense, and lent to one reader at a time—without any cost to them—for personal, research, or phone number database scholarly use. And while noncommerciality does, of course, have to be balanced against certain economic interests of the publishers as part of the fair use analysis, that’s precisely what the owned-to-loan ratio and other strictures of controlled digital lending work to do.
For all its challenges, fair use continues to provide important rights and safeguards to libraries. Among other things, it allows libraries to utilize new technologies and respond to new challenges without waiting for the legislature to pass new laws.
In fact, this is exactly what the legislature intended it to do. Fair use means libraries can develop innovative services like our work to support Wikipedia citations, respond to new challenges like the COVID lockdowns, and otherwise continue to serve patrons as the world evolves. And it means libraries, like the Internet Archive and many others, can lend their books to one reader at a time, as they have always done.
For example, as we explained in our brief, fair use has always been concerned with protecting non-profit and educational uses of copyrighted works. When considering whether a particular use is fair, the first question is ordinarily whether it’s “noncommercial.”
With respect to our own book collections, : the books are lawfully acquired, digitized at our own expense, and lent to one reader at a time—without any cost to them—for personal, research, or phone number database scholarly use. And while noncommerciality does, of course, have to be balanced against certain economic interests of the publishers as part of the fair use analysis, that’s precisely what the owned-to-loan ratio and other strictures of controlled digital lending work to do.
For all its challenges, fair use continues to provide important rights and safeguards to libraries. Among other things, it allows libraries to utilize new technologies and respond to new challenges without waiting for the legislature to pass new laws.
In fact, this is exactly what the legislature intended it to do. Fair use means libraries can develop innovative services like our work to support Wikipedia citations, respond to new challenges like the COVID lockdowns, and otherwise continue to serve patrons as the world evolves. And it means libraries, like the Internet Archive and many others, can lend their books to one reader at a time, as they have always done.