It’s fair use week in the United States, and here at the Internet Archive, we join all those in the library community and beyond who celebrate the role fair use plays in enabling access to knowledge.
Fair use is a tremendously important part of US copyright law. From effectuating First Amendment rights to fostering innovation, the Supreme Court has described its “basic purpose” as “providing a context-based check that can help to keep a copyright monopoly within its lawful bounds.” And over the years, fair use has rightly evolved to ensure it can continue to play its role in changing times.
But fair use is not without its challenges. Professor Larry Lessig once famously quipped that “fair use in America simply means the right to hire a lawyer.” And given the associated expense, this can have an asymmetric effect on fair use. The book publishing industry, for example, is dominated by multi-billion-dollar firms; their economic power is so concentrated that a federal court recently enjoined a further attempt at consolidation. Meanwhile, although libraries collectively represent a substantial portion of book purchasers, their economic power is dispersed among many thousands of public, research, academic, and other institutions. Thus, while some may be willing to “roll the dice” on fair use, the costs and risks lead many to underuse this important user’s right.
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, this is straightforward: 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 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.
These library locked-down elements in your library, which are based on texts that have been in the public domain for a hundred years or more, are in gross contradiction to the principles of your org.