Month: November 2022

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

For one, this argument fails to appreciate that for long-term digital copies do degrade and require significant effort to maintain. Systems need to be migrated periodically, and platforms updated to interact with current technology. HathiTrust, for example, reports replacing storage hardware every 3—4 years. So, the stored digital copy used for lending does degrade over time and in reaction to use, just in ways that are not entirely analogous to the more gradual and straightforward entropy of the physical book.

Those facts aside, to our knowledge no court has ever tied the application of the first sale doctrine to a required, planned degradation of the format in which the copy exists. Since the first recognition of the first sale doctrine over years ago, the advent of acid-free paper, improved binding technology, media such as microform and magnetic tape and other innovations have extended the life of physical works dramatically.

Driven in part by a lack of market availability, libraries repair, strengthen, and rebind many books in their collections, in large part because replacements cannot be purchased. The idea has no connection to the statutory or judicial development of the rationale for first sale, and it fails to account for how digital storage and transmission do encounter degradation that is consistent with if not more severe than physical degradation. Finally, the third market-harm concern is that digital distribution raises greatly increased risks of piracy.

In its report addressing digital first sale, the U. Courts have taken security concerns seriously. HathiTrust , for example, the Second Circuit gave considerable attention to the security precautions HathiTrust had put into place for the digitized volumes in its collection. Digital distribution of copyrighted works is exceedingly common.

For CDL, we see the risks as no greater than any other digital transaction. Publishers regularly license electronic books for digital distribution without any discernable market premium added to account for the additional risk of impermissible downstream copying. For libraries, security issues should be taken seriously, which they are by design through the six CDL controls described above.

Like the approach taken by HathiTrust, the repository of digital copies must be secured from unintended access. Going even beyond the HathiTrust case, CDL would require physical access to works be restricted as well, while digital copies are lent.

In addition, the files lent must be controlled in some significant way e. Many publishers use and are comfortable with security implemented through systems like Overdrive, or using Adobe Digital Editions. For CDL, the most effective and defensible approach may be to use those very same copy and piracy controls that publishers themselves employ for distribution of their licensed e-book content.

Finally, a secondary but important reason why CDL would fare well under the market harm analysis is because it addresses a broad market failure, particularly with respect to the 20 th century books that are generally not available in digital formats. For these 20 th century books, we believe the fair use argument is strongest. The most significant market failure for these books is with truly orphaned works—i.

But the 20 th century book market suffers from market failure even when owners are known. Failure of rightsholders to exploit the e-book market likely has many causes. Some of those are production-related transaction costs, some are due to the complex thickets of rights associated with each work, [] and some are likely due just to competing priorities.

In all such cases, books are not commercially available in digital form. High transaction costs make it economically unviable for a willing rightsholder and a willing user to negotiate for a sale. For example, in Cambridge University Press v. The Eleventh Circuit found this significant in weighing the fourth factor:. The prohibition of such noncommercial uses would merely inhibit access to ideas without any countervailing benefit.

So, for books published in this time period as a whole, there is a strong argument that they collectively represent a market failure. Part of that failure is due to high costs of determining commercial availability for any given work.

The costs of searching and identifying which works are out of print, orphaned, or not available in e-book format is costly itself. However, we believe that there is sufficient data for assessment of commercial availability that can be leveraged for CDL to maximize the case that these particular titles within this 20 th century focus are unavailable either in print or electronically.

Those, we believe, present the very best case for CDL uses. Libraries thinking about CDL will encounter risk, both positive and negative. On the positive side, we believe there is a significant upside: CDL helps libraries fulfill their missions in the broadest sense, using technology to increase effective, non-discriminatory access to collections for our users, and the world.

For negative risk, there are three primary types we worry about: 1 the risk that a library is sued in the first place, 2 the risk that the library loses the lawsuit, and 3 the risk of consequences in the face of defeat in a lawsuit. For each aspect of risk, libraries should make an honest assessment of their risk tolerance, accompanied by advice from legal counsel about how to match some of the ideas presented above and below with that risk profile. The issues are actually about time, resources, and reputational harm in defending a lawsuit.

A lawsuit can take a tremendous amount of time. Patton has now entered its 10 th year of litigation. There can be years of pre-trial action after the complaint is filed. There could be challenges to the pleadings through the motion process, which add additional delay. Answering questions, producing documents, or taking testimony can often take months or years, even before you get to trial. Although the reality is that most lawsuits do not go to trial, [] the cost of litigation can be high, and these costs often depend on the issues involved and the location of the trial.

Second, the risk that the library loses in court is primarily addressed by the strength of the legal position under fair use, the framework of which is addressed in Part III. And again, we caution that there are no fair use cases that square precisely with this use scenario, and so libraries entering this space must embrace a certain degree of legal ambiguity. But, the analysis above shows that there is a good faith, reasonable basis for concluding that such uses constitute fair uses.

Typically, the plaintiff would request that the court enter an order for an injunction or damages, or, on occasion, both against the losing party.

Statutory damages are the major concern. However, for libraries there is some good news to limit risk exposure. First, Congress created a special provision to protect for teachers, librarians, archivists, public broadcasters and the nonprofit institutions with which they are associated from liability when they believed and had reasonable grounds for believing that the use they were making was a fair use. Second, some institutions may benefit from sovereign immunity, a doctrine that protects states from federal court interference, derived in part from the Eleventh Amendment to the United States Constitution.

Presently, state and tribal governments and their related departments such as state university libraries, museums, or archives, are immune from damage awards. Of course, plaintiffs could still bring a suit. Sovereign immunity also lowers the risk of such a suit because the outcome may have little reward—there is no money in it for litigants. While some risks such as exposure to damages may be minimized by sovereign immunity or the statutory damages exception, libraries can also be proactive to minimize risk with CDL by implementing some additional system design and library policies, as well as selecting materials to be lent using CDL with an eye toward risk.

We conclude with several practical ideas about how to do so:. The six basic system design elements identified in the Statement and introduced at the outset of this paper are, we believe, all that are necessary to make a compelling legal case for CDL. These design elements attempt to make CDL mimic even more closely the physical environment and attendant friction reuse, as well as the security limitations that physical lending currently requires.

For books that would typically take 24 hours to make their way back on to the shelves after being returned, that might be an appropriate waiting time for digital copies as well. For reserve materials that rapidly move in and out of the shelves with little wait, a shorter period may be appropriate to mimic the realities of a physical lend. Libraries may even want to take in user geography—if a user borrows a book while located further away, add more time in between the next loan than if the user is located next door—or other factors that have historically slowed the flow of physical works.

A conservatively designed CDL system could also introduce characteristics that mimic physical degradation. For example, a library might introduce lending limits based on library experience with physical lending. If a physical book could be expected to circulate 2, times before it degrades, the library could place the same limit on circulation of the digital copy. For many books, this could pose little practical challenge. Large research libraries hold many books that have circulated very seldom in print, [] and so for many obscure materials ever hitting a maximum loan threshold may be unlikely though we recognize, digital availability may itself drive lending.

For such an implementation, it would be important for libraries to develop good data on how long an average book actually circulated before it degrades to the point it can no longer be used. Libraries may also pay special attention to controlling both digital and physical copies. While all applications of CDL should restrict access to physical copies while the digital is lent, some practical strategies may ensure that such restrictions are especially rigorously followed.

For libraries with open stacks, this may mean rapidly removing books from open circulation if they are digitized and lent. For others, a more reliable method may be to only lend books whose physical manifestations are already tightly controlled, either in closed stacks or off-site storage. Libraries may also limit who they will lend digital copies to as an additional way to limit the overall reach of the copy and therefore the potential market effect.

Libraries serve particular communities of users—an academic library primarily serves its students and faculty, a public library serves its local residents—and so the rationale would be that digital lending should be made equivalent to the same group of users who would have access to the physical materials.

While many libraries make their collections available broadly to many users, user-group considerations may mean that libraries will want to think carefully about issues such as who their core users are and, for example, how lending to partner libraries in local or regional consortia with deeply integrated print collections may work, as opposed to users at libraries with more distant interlibrary loan arrangements.

In any case, the aim would be to make collections more accessible for those who would ordinarily, already be entitled to access. In addition, libraries may apply more or less restrictive controls on what users can do with copies while they are lent to them. Ordinarily, a borrower of a physical book can make photocopies, scans, or other basic reproductions, usually for private study or minimal further sharing.

Practicality usually limits users from reproducing the entire physical work over again. While all CDL systems should implement some type of technological protection measures to prevent wholesale copying, libraries that seek to take a conservative approach to CDL may seek to limit any copying at all, while others may allow users to reproduce or print a small selection from the work.

Finally, libraries may choose to limit access to books based on feedback from rightsholders about specific materials loaned through CDL. Many libraries already employ such policies with digitized collections, particularly those that include materials from unknown or unlocatable owners. For CDL, extending those policies may be a natural and simple way to defuse risk before it culminates in a potentially costly dispute. The choice in what books are selected for CDL can also play a significant role in risk mitigation.

Book candidates with the lowest risk—and the strongest fair use argument, though those analyses are not necessarily tied together—are generally those with the lowest likelihood of market exploitation. Our analysis above pays special attention to 20th century books generally, but there are several subcategories of works that libraries may select for CDL that would yield further reduction of risk. There is some practical risk mitigation in selecting older titles for digitization.

Because the public domain analysis can be time consuming and costly, [] for libraries that are unable to undertake a full public domain analysis to each work, using older works as a proxy in combination with a CDL strategy may be an effective way to minimize copyright-related risks. For published books, there are a few ways to approximate which works are more likely to be in the public domain than others.

Copyright for U. Copyright Office to have continued protection. Very few rightsholders filed for renewal. When Congress extended copyright protection by 20 years in the Copyright Term Extension Act, it granted libraries special rights to use works in that extended term under Section h. However, the out of print status of a book is meaningful for the fair use analysis. A key, though not necessarily determinative factor in fair use is whether or not the work is available to the potential user.

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David /48134.txt. Courtney [1]. This paper is about how libraries can legally lend digital copies of books. We write this paper in support of the Position Statement on Controlled Digital Lending[2] a document endorsed by many libraries, librarians, and legal experts. CDL нажмите сюда a library to circulate a digitized title in place of a physical one in a controlled manner. Under this approach, a library may only loan simultaneously the number of copies that it has legitimately ecfects, usually through purchase or donation.

For example, if a adobe after effects cc classroom in a book (2017 release) free free owns three copies of a title and digitizes one copy, it may use CDL to circulate one digital copy and two print, or three digital copies, or two digital copies and one print; in all cases, it could only circulate the same number of copies that it owned before adobe after effects cc classroom in a book (2017 release) free free.

Circulation in any format is controlled so that only one user can use any given copy at a time, for a limited time. Further, CDL systems generally employ appropriate technical measures to prevent users from retaining a permanent copy or distributing additional copies.

Thus, CDL would permit circulation of copies equal to those that had been legitimately acquired by the participating libraries. When the digital copy is being read by a patron, however, the corresponding physical copy is restricted and unavailable for consultation, so there is no situation in which the library is getting use of two copies for the price of one.

A arter can lend a physical book to a patron adobe after effects cc classroom in a book (2017 release) free free standard circulation or to another library through interlibrary loan. What CDL does do is shift that lending to a new format that opens up access possibilities for readers with disabilities, physical access limitations, research efficiency needs, or other adkbe for digitally-accessible content. A CDL system is not a brand-new concept.

There are multiple versions of CDL-like systems currently being used in libraries. These partners include large library systems such as the Effectd Public Library, to smaller specialized libraries such as the Allen County Public Library, which houses the largest genealogical collection of any public library in the country.

At its core, CDL is about replicating with digital lending the legal and economically significant aspects of physical lending. To do so, we libraries must truly exercise control in the process. The Statement identifies six specific requirements to do so. It states that for CDL, libraries should:. The first sale doctrine, codified in Section of the Copyright Actprovides that anyone who legally acquires a copyrighted work from the copyright holder receives the right to sell, display, or otherwise dispose of that particular adobe after effects cc classroom in a book (2017 release) free free, notwithstanding the interests of the copyright owner.

This is how libraries loan books. Controlled digital lending as we conceive it is premised on the idea that libraries can embrace their traditional lending role to the digital environment. For decades, libraries and cultural institutions have sought to provide greater access to their collections with the hope of reaching a broader and more diverse set of readers.

Attempting to clearly answer those questions on a title-by-title basis has proven costly, [14] making full digital access for large numbers of works based on rightsholder permission difficult.

Particularly for books and other published materials for which there was once an active market, libraries have not yet been able to provide broad full-text access online.

Many 20th Century books are not available for purchase as new copies coassroom print or as digital versions online. The morass of rights management, combined with the orphan rree problem and aftre ever-increasing copyright efcects, has made it complicated to see a path forward to broad digital access.

For modern libraries with users whose kn and information use patterns mean they look to digital access first, [17] this means that a whole world of research is effectively clwssroom to a variety of types of users. For some, the inability to physically travel to a library because calssroom their remote physical location, economic wherewithal, or homebound limitations means that physical lending is not practical.

For others, physical access is a matter of great inefficiency in their w and learning. For a large research library, this means holdings of millions of volumes, already purchased at a cost of hundreds of millions of dollars, are adobe after effects cc classroom in a book (2017 release) free free accessible in a format that узнать больше здесь more meaningful and easier to use for many researchers today.

For books primarily from the mid th Century, presumptively still protected by copyright, but not currently available in electronic form from their rightsholders, читать полностью believe CDL holds significant promise. We also believe the legal rationale for lending these works is among the strongest of all types classorom works.

Clawsroom may have identifiable owners, but are in practice neglected, unavailable in the digital marketplace and with no plan for revitalization in modern formats. So, how can libraries provide access? First, we start with a detailed look at the two fundamental copyright law doctrines that already empower libraries to fulfill their missions: first sale and fair use.

Section of the Copyright Act enumerates the claasroom bundle of rights granted rfee copyright relezse) the clsasroom right to control reproduction of the work, public distribution of the work, public performances, public displays, and creation of derivative works. But, the rights granted in Section are limited by a number of statutory exceptions. Sectionthe statutory first sale doctrine, is one such provision. Entire industries and enterprises are built upon the first sale doctrine.

Libraries were built on it. The first sale doctrine balances the rights of copyright owners to distribute with those of purchasers to dispose of their copies as they wish. With distribution of physical copies, such as lending a print rfee to a library user, that framework works well enough.

Much of the literature on first sale applied in the frew environment recognizes that library lending raises unique concerns requiring special treatment. Indeed, effecrs libraries have already engaged in limited CDL for years without issue, indicating perhaps a tacit acknowledgement of the strength of their legal position.

We limit our analysis to non-commercial, controlled, digital lending by U. That brings us next to fair use. All are to be explored, and the results weighed together, in light of the purposes of copyright. The basic concept of applying first sale principles to digital transactions is not new, either as justified under the first sale doctrine alone, as fair use, or through some combination of the two together.

The U. ReDigi, LLChas raised the question of how these doctrines apply to a discord - discord download windows 10, digital resale market for mp3s. Again, the literature on digital first sale recognizes that library most likely will require special treatment. And we also adobe after effects cc classroom in a book (2017 release) free free that these library uses, of all the varying digital uses, are among the most likely autodesk autocad 2019 stuck initializing free be justified under a fair use rationale.

Several libraries ffree already engaged in limited CDL for years without issue. Our focus is on these narrow and specialized use by libraries. Again, we limit our analysis to non-commercial, controlled, digital lending by U. In applying fair use, not every factor in the analysis will be highly relevant in every situation. The core concept with CDL is that on closely mimics the economic transaction that Congress has already provided for through the first sale doctrine under Section The purpose of the use with CDL is to fulfill the statutory objectives and balance of rights already identified by Congress in Sectioneffectuating that balance considering a new technological use not contemplated at the time Section was enacted.

When raised, courts have largely rejected that argument. For example, in Sega Enterprises Ltd. Accolade, Inc. Afetr a matter of copyright policy, the presence of a specific copyright exception or, in some cases, other provisions of affer law provides persuasive evidence of the kinds of purposes that should be favored in the fair use assessment.

While детальнее на этой странице extensively litigated, a number of cases indicate that adobe after effects cc classroom in a book (2017 release) free free is the right approach, which we review here to give a sense of the strength of this position.

In Authors Guild v. Some courts have pointed to broader policy objectives, both within and outside of the copyright act, as influencing the purpose and character analysis. Bloomberg, L.

Indeed, as Bloomberg points out, the SEC has mandated that when American companies disclose this kind of material nonpublic information, they must make it available to the public immediately. See Regulation FD, 17 C. Copyright Office has also cited specific copyright exceptions as positively influencing afer fair afrer assessment.

Those include looking effectz Section exceptions for interoperability, Section exceptions for nonprofit public performances and teaching, and Section exceptions for computer program adaptation. For CDL, the purpose release the use is one that intends to mirror the basic purpose of first sale as embodied in Section In Kirtsaeng v.

As technology and markets have shifted, libraries employing CDL seek to use technology to hold up that same balance of rights while allowing users to access materials in formats that are most meaningful to ckassroom today. CDL effscts consumer choice in formats and platforms, while avoiding dragging adobe after effects cc classroom in a book (2017 release) free free into the thicket of restrictions and rights conflicts that would require extensive litigation to resolve.

Under CDL, if one copy is purchased, a library can only lend one copy—either print or physical—out to a user at a time. There are a few cases in the commercial context that come close, however. Those cases are primarily negative, though as we explain below we believe they are distinguishable from CDL adboe, and one case is currently on appeal. ReDigi Inc. Upon sale through the ReDigi marketplace, the file would be downloaded to the purchaser egfects simultaneously deleted from the Cloud Locker.

It did not, however, assess the two axobe together. For fair use, the ReDigi court was fairly dismissive reelase) the purpose factor, focusing almost exclusive on the commerciality of the program. The analysis was brief and considered almost none of the arguments laid out above. In honing in on the commerciality of the use, the court found that the purpose and character of the use clsasroom against a fair use finding. For instance, in Wall Data Inc. More recently, in Disney Enterprises, Inc.

VidAngel, Inc. For each user, VidAngel would purchase a physical DVD on behalf of the user, which VidAngel then copied, edited and streamed to the user online. VidAngel conceded that its use was commercial, and the court did not consider the use to be transformative. Like with Wall Datathe streams were provided for videos with known copyright owners who themselves license rights to competing streaming services. One way these cases are distinguished is just that the issue was not raised; except for ReDigi where the issue was only obliquely arguedfirst sale and the purpose and character assessment were not raised by the litigants or addressed by the court.

The argument aftwr not presented. Another, more significant distinguishing factor is that all three cases involved commercial uses, both in the specific application and in connection with a broader, functioning market place for the works used. This brings us to the second characteristic of CDL that we believe tilts the first factor analysis decidedly in favor of fair use: Libraries engaging in CDL are doing so for non-commercial research and learning purposes.

Unlike commercial resale for windows 10 streaming markets, library use of CDL is non-commercial and designed to promote public benefits by facilitating research and learning. Libraries engaging in CDL, as we envision it, will not generate monetary profit.

Given adobe after effects cc classroom in a book (2017 release) free free costs of digitizing, building and maintaining the technical infrastructure necessary to lending digitally and controlling physical copies, and personnel time used to restrict print clazsroom when its digital equivalent is circulating, libraries may spend considerable sums with no compensation.

To be sure, bolk and their users would stand to benefit from CDL.

 

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