Copyright is, above all else, a balancing act. This equity principle is especially important when technology collides with traditional copyright. Market effects are certainly an important feature of that balance but must be weighed against other equitable interests, regardless of their technological form. Literary criticism, second-hand sales, and library lending all have the potential to impact sales but nevertheless are considered social goods that copyright is intended to foster.
Controlled digital lending ("CDL") was established to innovate these core, well-established components of copyright law, allowing libraries to secure their collections and maintain their relevance as physical stewards of knowledge in an increasingly digital age. CDL takes many forms. Many libraries around the United States offer works through CDL subject to their own individual platforms and practices. The arguments offered by Plaintiffs in support of their motion for summary judgment are a broad-based attack on all of them, shoehorning the very concept of CDL into a dispute about the Internet Archive’s individual implementation of it. See, e.g., ECF No. 99 at 1–5. Indeed, they go so far as to generally call digitized copies of physical works “bootleg.” Id. at 1.
Amicus respectfully submits that this Court should (1) reject Plaintiffs’ argument in support of their motion that CDL generally does not constitute fair use, and (2) regardless of this Court’s decision on the motions for summary judgment, narrowly construe the parties’ arguments to reach an outcome that has as little effect as possible on the hundreds of unrelated CDL programs at libraries around the country.
Amicus addresses three fundamental points for this Court’s consideration and benefit. First, CDL was carefully crafted to balance respect for public and private copyright interests in a digital age. Second, CDL creates enormous benefits for libraries, the users they serve, and society at large that are integral to the fair use analysis. Digital licensing, Plaintiffs’ proposed alternative to CDL, is wholly insufficient to fulfill libraries’ missions and hampers libraries’ ability to serve the public good.
Third, this Court should not adopt Plaintiffs’ overbroad attack on CDL. Whatever decision this Court reaches on the particular facts of these plaintiffs against this defendant’s particular CDL program, CDL has many different expressions and applications in libraries all over the United States, serving a diverse set of interests including publishers, authors, users, and libraries themselves. Plaintiffs flatten these distinctions, treating CDL as a monolithic bad and themselves as the monolithic representatives of the interests of copyright holders, when they represent only one profit-focused perspective in the equitable considerations of copyright law (and indeed, only one perspective of publishers). See, e.g., ECF No. 1 at 4–5.
Plaintiffs’ motion for summary judgment attacks and denigrates the very concept of CDL, when it just as easily could have been narrowly construed. A wide-reaching holding against CDL — which Plaintiffs request of this Court — would have wide-reaching consequences far beyond the parties, harming the ability of libraries to adequately serve the public in the digital age.
Scholarly Commons Citation
Wu, Michelle M., "Brief of Michelle M. Wu as Amicus Curiae" (2022). Georgetown Law Faculty Publications and Other Works. 2572.