Libraries built their lending case on owning, not licensing

A 2018 position statement stakes librarians' legal theory for scan-and-lend on first sale and fair use, later tested in court.

Site publication

September 18, 2026

The record

In 2018, six library-sector authors, Lila Bailey, Kyle K. Courtney, David Hansen, Mary Minow, Jason Schultz, and Michelle Wu, published a position statement on controlled digital lending, arguing that a library which owns a physical book may lend a single digital scan of it in the book's place, one reader at a time. The statement grounds that claim in two doctrines: the first sale doctrine, which it says exhausts a rights holder's control once an authorized copy changes hands, and fair use, citing libraries' socially beneficial purposes such as access and literacy. It sets conditions for the practice: a library must maintain an owned-to-loaned ratio, lend to one user at a time, limit each loan's duration, apply technical protection against copying, and use only works it lawfully owns rather than licenses. The statement has since drawn more than a hundred individual and institutional signatories, including the Internet Archive, Authors Alliance, and the Association of Research Libraries.

What the documents show

The statement itself is explicit that it announces a legal position rather than a settled rule, issued under its authors' own names rather than as a single association's formal policy. The signatories page names the organizations that have endorsed it, but neither document reports a court's independent assessment of the theory. That assessment came in 2023, when a federal court, ruling on the Internet Archive's implementation of controlled digital lending, found that the scanning and lending practice before it was not a fair use. The opinion addressed one library's application to specific books, not the statement's doctrine in the abstract, so its broader first-sale argument was not directly adjudicated.

Why it stays interesting

The statement is a clear, compact record of the argument libraries were making before a court weighed in, useful for measuring how a later ruling narrowed or left open the underlying theory. This is an editorial note: a position statement and a court opinion answer different questions, one states what a sector believes the law should be read to permit, the other what a specific court found the law to require in a specific case, and conflating the two risks treating an advocacy document as adjudicated law, or a narrow ruling as a final word on a broader practice.

What to read next

The Hachette v. Internet Archive opinion shows how one court applied the fair-use factors to a library's scan-and-lend program built on this statement's premises. HathiTrust's founding record offers a comparison point: a library-built digital repository operating on a different legal footing than one-to-one lending.

• Which of the statement's five conditions did the 2023 ruling treat as decisive, and which did it not directly address?
• Does the statement distinguish owned works from licensed ones clearly enough to guide a library's own collection decisions?
• What would a court need to see differently to treat controlled digital lending as transformative?

The statement remains, as retrieved on 16 September 2026, an active position with a growing signatory list rather than a closed question, and the record of its claims is worth holding separately from any single court's later findings about one library's practice.

Sources & reading trail

The statement's own legal rationale (first sale, fair use) and its stated operating conditions for controlled digital lending.

Source published: Not established · Retrieved: 16 September 2026

Names the individual and institutional signatories, including the Internet Archive and the Association of Research Libraries.

Source published: Not established · Retrieved: 16 September 2026

The 2023 ruling that tested one library's implementation of the statement's theory and found it not a fair use.

Source published: 24 March 2023 · Retrieved: 16 September 2026

Reports, filings, records and studies establish the entry; the reading of why it stays interesting is Chapter Ledger editorial analysis. This retrospective draft does not imply the site published on the event date.

Continue reading

• A federal court found library ebook scanning was not fair use
• A nonprofit set out to build one web page for every book
• Research libraries pooled their scans into one shared repository
• Browse the complete the ledger archive

Published September 18, 2026, not on the date of the event described.