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If anything, their "first sale doctrine" route seems like a stronger argument than fair use here. When you purchase a copy of a work, you have the right to lend, sell, or share that copy without any additional payment or permission required to the creator. This is how libraries have operated for centuries.

I think what IA was doing, making sure they only lend out as many copies as they physically own, was clearly within the spirit of that doctrine. But in the digital era, lending anything over the web necessarily means making a copy of it somewhere along the way, which laws haven't adequately adapted to yet.

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Exactly. I'm not a lawyer but I'm baffled they went the fair use route -- fair use has nothing to do with it.

The argument that this is no different from lending temporarily to a friend seems to be much more reasonable. Especially since no money is changing hands.

The first-sale doctrine was also covered in the ruling. According to the letter of the law (17 USC § 109) it specifically only covers the distribution of existing authorized physical copies; it doesn't grant you permission to make a copy and lend that to a friend.

The judge disagreed with that too. Companies have tried and failed to set up a streaming service backed by physical copies and they were struck down so this really didn’t have any chance either.

Thanks for pointing that out.

It makes me so sad -- it reminds me of Aereo, when the Supreme Court ruled against it in 2014 that it wasn't allowed to stream public broadcast TV over the internet, despite having a separate radio receiver for each viewer.

I can understand why Congress hasn't changed law to allow digital 1-for-1 reuse of previous physical/analog sources -- because there will be too much lobbying against it from corporations.

But it really seems like the Supreme Court had a chance to set new precedent in an area that hadn't been foreseen in law so really was undefined. And they chose corporations over consumers back in 2014, just like a federal judge did again now.

I can only imagine how much better if the Supreme Court had sided with consumers here. Congress could have overturned it through law, of course, but only in the face of massive voter dissatisfaction, and so I'm not sure they would have.

I don’t understand the reasoning there though. Like, I can get on board with sayibg fair-use is silly, but lending a book that I own —either digitally or physically— should be protected.

The concept of "owning" a book digitally is already on shaky ground, since most large publishers only sell licenses for accessing ebooks. You're not actually purchasing a copy in perpetuity like a physical book. Naturally these licenses are entirely on the publishers' terms.

In practice this means publishers can revoke access licenses for all sorts of arbitrary reasons, alter the content of ebooks already purchased, or plenty of other shady practices, with little recourse available to the reader.

Plus it means they can force libraries to keep paying repeated, marked-up licensing fees for the privilege of lending out ebooks. Much better deal for the publishers than the physical library lending model!

I don't blame IA for trying to find a way to liberate library lending from that racket.

> You're not actually purchasing a copy in perpetuity like a physical book.

I own the physical book. Why does the publisher have any further rights to tell me what I do with it?

publishers only sell licenses for accessing ebooks

That right there is the true root of the problem.

You can sell or lend the physical copy you own. You can’t make a copy and then loan that. Copyright is the right to control making copies.

You could sell or lend virtual copy if the platforms supported that. You are allowed to make a copy for backup purposes, and no one will ever know if you use that or even lend it. But if you make business of it, then they will notice and sue you.

It’s a subtle distinction but when you lend a physical book no copy is made.

The thing is IA wasn't lending the copy they purchased, they were lending a reproduction of the copy. The question here is if it was legal for them to make that copy which is where the fair use argument comes in. I wonder if they could buy ebooks and lend those instead of starting with a physical copy.

> I think what IA was doing, making sure they only lend out as many copies as they physically own,

Part of this points out that they weren’t even doing that; there was no process to ensure that the “partnered” library wasn’t simultaneously lending out their copy.

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