Today marks the beginning of Fair Use Week, which celebrates the importance of fair use for libraries, students, teachers, journalists, creators, and the public. Last week, the Internet Archive joined the American Library Association, the Association of Research Libraries, and the Association of College and Research Libraries on a friend of the court brief in the Capitol Records v. Redigi case. This case raises the important question about whether it is legal to resell lawful copies of digital music files—that is, whether the first sale right exists in digital form, and how that right interacts with fair use. The first sale right, codified at Section 109(a) of the Copyright Act, is the same law that allows libraries to lend books and other copyrighted works to the public. As library collections become increasingly digital, libraries are relying on fair use and first sale rights in order to perform their everyday duties, including preservation and lending.
The brief argues first that the court’s fair use analysis should favor secondary uses that have the same underlying purpose as the first sale right.
“In Authors Guild v. HathiTrust… [the Second Circuit Court] used the rationale for a specific exception—17 U.S.C. § 121, which permits the making of accessible format copies for the print disabled—to support a finding of a valid purpose under the first factor. Likewise, the Copyright Office has repeatedly based fair use conclusions on specific exceptions in the context of a rulemaking under section 1201 of the Digital Millennium Copyright Act, 17 U.S.C. § 1201. As this Court did in HathiTrust or the Copyright Office did in the section 1201 rulemaking, the district court should have recognized that the purpose behind the first sale doctrine tilted the first fair use factor in favor of ReDigi.”
Second, the brief argues that a positive fair use determination in the Redigi case would enable libraries to provide new and innovative digital services to their users. The brief states:
“Fair use findings in technology cases have encouraged libraries to provide new, digitally-based services such as the HathiTrust Digital Library. In addition to enabling researchers to find relevant texts and perform critical data-mining, HathiTrust provides full-text access to over fourteen million volumes to people who have print disabilities. A fair use finding in this case would provide libraries with additional legal certainty to roll out innovative services such as the Internet Archive’s Open Library. Such a result would increase users’ access to important content without diminishing authors’ incentive to create new works.”
You can read the full text of the brief here.