Full disclosure: I am an author, and some of my books have been lent by the IA.
I strongly opposed the IA's uncontrolled digital lending at the start of the pandemic. I thought its "Emergency Library" was very clearly illegal and tactically very stupid.
On the other hand, I fully support the concept of controlled digital lending, about which the current appeal is concerned. As an author, I don't particularly care about whether a book that a library legally acquired is lent as a physical copy or a digital copy, as long as it is controlled the same way as physical copies are controlled (i.e. one person at a time can have the copy checked out). True, my publisher might consider the distinction important, because e-book licenses are a valuable revenue stream for them, but my interests are satisfied as long as the physical copy is legally acquired.
Yet although I support CDL conceptually, I think more needs to be done by Congress to codify the practice; going solely by existing case law, I can see why the judge ruled against IA.
In particular, the IA's argument that their CDL program was transformative, as fair-use law defines the term, is extremely shaky. What they're saying is that they employed a novel distribution method -- but that method doesn't actually transform the copyrighted work creatively; the words remain exactly the same. The term "transformative," when applied in a fair-use analysis, implies altering the material in some way, not just introducing a new transmission method.
I strongly opposed the IA's uncontrolled digital lending at the start of the pandemic. I thought its "Emergency Library" was very clearly illegal and tactically very stupid.
On the other hand, I fully support the concept of controlled digital lending, about which the current appeal is concerned. As an author, I don't particularly care about whether a book that a library legally acquired is lent as a physical copy or a digital copy, as long as it is controlled the same way as physical copies are controlled (i.e. one person at a time can have the copy checked out). True, my publisher might consider the distinction important, because e-book licenses are a valuable revenue stream for them, but my interests are satisfied as long as the physical copy is legally acquired.
Yet although I support CDL conceptually, I think more needs to be done by Congress to codify the practice; going solely by existing case law, I can see why the judge ruled against IA.
In particular, the IA's argument that their CDL program was transformative, as fair-use law defines the term, is extremely shaky. What they're saying is that they employed a novel distribution method -- but that method doesn't actually transform the copyrighted work creatively; the words remain exactly the same. The term "transformative," when applied in a fair-use analysis, implies altering the material in some way, not just introducing a new transmission method.