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Dylan16807 | on: #41452442
They don't have to pass the test, but they still fail it.

Please look at what I'm actually saying instead of snapping off replies that don't address my point. (And yes I edited in another couple sentences but the part about libraries not copying was in the original version of both those posts.)

tptacek | parent
They can't "fail" it; the test simply doesn't apply to them. "Fair uses" governs the legitimate creation of unauthorized derived works. Lending a physical book does not create a derived work.

(You're fine editing; I edited too, just for clarity).

Dylan16807 | root | parent
You can still apply the elements of the test to them, and they fail every element.

Let me try making my post a list of bullet points.

* Libraries are allowed because technically it's not copying, and otherwise would be very illegal. Agree or disagree?

* Controlled digital lending is only copying on a technical level, not in the traditional sense where more than one copy can be accessed simultaneously. Agree or disagree?

* If CDL could somehow remove that technicality and do pure digital transfers, it would be fine. Agree or disagree?

* A better version of copyright would ignore that technicality. Agree or disagree?

tptacek | root | parent
Copying has a specific definition under the law. Physical lending of books does not come close to meeting it. Applying any of the fair use tests to physical book lending thus does not make any sense. It's like applying the Central Hudson Test to my cooking of a grilled cheese sandwich: it's lawful, the government has minimal interest in regulating it, none of that matters because my sandwich isn't expressive.

If your whole point is that we could tear down all of copyright law and replace it with a system that allowed IA CDL, then, sure. We could do a lot of things. I'm not really here for that argument (because there just isn't enough to nerd out about in it, not because I have any problem with the exercise).

But as for the law as has existed in the United States for the last 50-odd years, I'm reminded of the words of a young Baltimore entrepreneur, who infamously said "you want it to be one way --- but it's the other way".

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