OK Lisa, I will give it a try.  I want to stress, however, that this is a purely academic undertaking, for a couple of reasons.

First, I have never been a litigator and never presented a fair use argument before a court.  Also, I have no connection with the Internet Archive, so I am not familiar with their thinking on this topic, beyond the public statements we all see.

Second, there is no lawsuit in the offing, to the best of my knowledge.  In spite of multiple angry and bellicose denunciations from the usual groups, IA has been operating for 24 years without getting sued for copyright infringement.  Maybe this new strategy will change that, but surely a potential plaintiff would be deterred from bring suit in the midst of the current crisis.

As to the factors, here, briefly, are the arguments I would make.

The purpose of the use is socially beneficial, non-profit, and based on a policy endorsed by Congress and the courts in the doctrine of first sale.  The U.S. does not have a “public lending right,” which indicates strong support for frictionless library lending, and the emergency situation we are in makes this policy even more compelling. People who cannot leave their homes or go to the library need and deserve the greatest possible access to information, entertainment and opportunities to learn, especially since virtually all children are now being home-schooled.

The nature of the works involved is variable, of course, but the policy reasoning above indicates the need for widespread access to a diverse corpus of materials.

The permissible amount is always judged in relationship to the purpose, and in this case the strong social benefit can only be obtained by providing access to entire works.  Since section 108 of the copyright law allows libraries to make complete copies for users under certain conditions, the NEL is simply building on a well-established policy to respond to extraordinary circumstances.

The market for library lending is not a market that has ever been available to publishers.  That is the point about first sale and the lack of a public lending right.  And in this crisis situation, I would argue for a market failure, even in cases where digital licenses are available.  The licenses are too hit-or-miss, too complicated, and involve dealing with too many different entities.  It is ridiculous to expect ordinary citizens to navigate that landscape, which usually requires expert librarians and lawyers.  Indeed, this fact has been recognized by many publishers who have opened up access in various ways in or to reduce the market friction.  Representing NEL, I would argue that it is congruent with these other response to a well-recognized market failure.

This, of course, is just my “off the top of my head” stab at the outlines of an argument.  Two final reminders.  Fair use does not require a “win” on every factor; it is a “totality of circumstances” test, and, as I said, COVID is now one of those salient circumstances.  Second, by insisting that it is a library, IA might be able to assert the remission of statutory damages for a good faith belief in fair use for employees of non-profit libraries that is found in section 504 (c)2 of the copyright act.  In fact, this potential inability to get statutory damages might be one of the reasons IA has not been sued before.

Kevin L. Smith

Dean of Libraries

University of Kansas