Tag: libraries

Librarian Panel Advocates Naïve Changes to Copyright Law

In April 1787, as James Madison was limbering up his philosophical muscles ahead of the Constitutional Convention, Thomas Jefferson shipped him several crates from Paris filled with books comprising what one might call the Enlightenment in a Box. I mention this footnote of American history only to observe that every book Madison received—indeed every book that ever influenced an American Framer—is in the public domain, and, thanks to the digital age, more widely and affordably available than at any point in the history of Western civilization. Additionally, millions of works produced between 1789 and the Copyright Act of 1909 are likewise in the public domain and, if these have survived in some form, they are also likely available in various digital archives. And the list goes on.

Yet despite this extraordinary age of access—an era some would reasonably compare to the proliferation of the press—ignorance is in no short supply in the democratic world. Indeed, a highly creative form of ignorance—the conspiracy theory—seems to be galloping without rest along the “information superhighway,” and it remains to be seen whether Hell follows with its multitude of riders. All of which is to affirm what should be obvious even to a casual observer:  that more access to information is not the antidote to misinformation.

Nevertheless, on March 24, Public Knowledge hosted an online event that was ostensibly aimed at combatting both misinformation and injustice. And not at all surprising, the substance of the panel discussion alleged that the bugbear preventing the misinformed from becoming the informed is copyright law. Not so subtly titled Burying Information – Big Tech & Access to Information, one promotional tweet about the event read:

This powerhouse panel will discuss fighting #misinformation w/information through tools like #CDL, & how technologist (sic) can create inclusive, empowering tools to provide access to information for disadvantaged & marginalized communities.

The powerhouse included Brewster Kahle, founder of the Internet Archive; Michelle Wu, author of a concept called Controlled Digital Lending (CDL), Heather Joseph, Executive Director at SPARC;[1] and moderator Amanda Levandowski, professor at Georgetown Law Center.

The discussion led off with brief remarks by Senator Ron Wyden, who expressed his love for libraries, his belief that more good information is the cure for disinformation, and his view that copyright needs to change in order to provide equitable access for all Americans to the aforementioned good information. It was probably not a coincidence that the event was held on the one-year anniversary of the Internet Archive launching what it called the National Emergency Library (NEL), for which it is now being sued by four major publishers.

Controlled Digital Lending

CDL, the central topic of the conversation, is a legal theory (emphasis on theory) asserting that libraries should be allowed to scan the physical books they own and then loan digital copies, one consumer at a time, per each physical copy they have in their collections. So, if a library has four physical copies of a book, it can loan up to four at a time in any combination (e.g. four digital or one digital and three physical, and so on).

The two main rationales presented for CDL are, first, that digitizing a physical collection preserves the collection and makes it accessible in an emergency—Wu conceived the idea when the library where she worked was flooded—and second, at least according to the panel, the cost of licensing eBooks from publishers is too high and, therefore, makes poor use of libraries’ limited resources. The “publishers won’t sell eBooks, but will only license them,” the panel unanimously complains, and further asserted that the unreasonably high cost of licensing results in a reduction of diversity in material and limited access for the most vulnerable members of society.

If the preservation argument for digitizing a collection sounds reasonable, it is. And that’s why Section 108 of the copyright law already provides a carveout for libraries to digitize books for preservation purposes. So, if libraries are not doing this, it isn’t because the law prohibits it. Relatedly, digitizing books costs money, and to my knowledge, there is one major enterprise in the business of digitizing books for libraries. It’s called the Internet Archive. Just sayin’.

As for the argument that CDL is a necessary workaround to the publishers’ “extortionate” eBook licensing regimes, this complaint rings a little hollow, and I would love to see hard data to support that claim. I access a mid-size library system that loans eBooks and filmed entertainment though third-party licensing vendors, and the system itself does not appear to be failing or suffering more than the usual ups and downs experienced by libraries.

But more telling perhaps is that the overall tone of the panel conveyed a resentment toward licensing eBooks at any price. Indeed, the group was unanimous in describing the codification of CDL into law as a “first step” toward more substantial, and ongoing, amendment to copyright. Or if Brewster Kahle had his way, the abrogation of copyright altogether. He is an anti-copyright ideologue, who alleged during the event that the lawsuit publishers filed against the Internet Archive was an effort to kill the concept of CDL in the proverbial cradle, but he left out the fact that what triggered the litigation was IA’s decision to make 1.3 million books available without controls of any kind.

More importantly, as Michelle Wu proclaimed, encoding CDL into law should be considered a step toward amending §109 of the copyright act to encompass “digital first sale,” which happens to be a market-devastating proposal for a lot more than books (see posts here and here). Suffice to say that encompassing “digital first sale” into the copyright law—a proposal which has been rejected by Congress and the USCO after about twenty years of advocacy, by the way—would thrash the market for authors of creative works, who have already seen revenues dry up due to multiple effects of digital technologies and industry practices.

More Information is Not the Antidote to Misinformation

I too love libraries. I agree with Heather Joseph’s comment that everyone who appreciates what these institutions do has a love my librarian story. But I got the sense from some of the rhetoric in the discussion that librarians may be feeling a bit ignored (i.e. less relevant) in the digital age; and if that is correct, the focus on copyright and the major book publishers is a misguided response. Some statistics indicate that reading among Americans has been trending downward for years.[2] One source tells us that Millennials read more than any other generation, but both they and the Boomers substantially prefer print books to eBooks.[3] So, what does that tell us about the urgent need for CDL? I don’t know either, but the point is that it is not sufficient to allude to a “problem” without evidence when seeking a legislative “fix.”

Meanwhile, anyone who says that reading materials overall are too expensive (and therefore copyright must change) is simply ignoring evidence. The cost of new book buying is roughly on par with the cost of new book buying in previous decades. And access to eBooks, used books, and borrowed books is clearly greater than the pre-digital age. I will also give credit to Internet Archive and its sister organizations for making older works in the public domain accessible. 

So, a mutual love of libraries is where my agreement with this panel ends—especially with regard to the underlying thesis that the disinformation crisis now rampaging through democratic societies like a (well, a pandemic) can be cured with greater access to reading material. No, it cannot. Speaking as a lifelong liberal elitist, that assumption is liberal elitist hogwash that has been soundly rejected by evidence, and which, ironically enough, belies a failure by this panel and its constituents to allow evidence to influence their own biases.

We must acknowledge that the plague of toxic misinformation in the United States (e.g. QAnon, antivax, stop-the-steal, etc.) almost exclusively infects the privileged. The folks who believe and spread some of the most Republic-shattering nonsense are generally upper middle-class white people with plenty of access and way too much time on their hands. Many even have college degrees, but a lot of them are the people I see in my community—like the contractor, who makes considerably more money than the average book author, but he neither spends that money on reading material nor spends his time seeking “good” information.

We should be careful about implying that there is a correlation between susceptibility to disinformation and economic precarity, or other imbalances of justice. And Senator Wyden should really think twice about whether he endorses that view without data to support it. Because I think the empirical evidence suggests that privilege plus internet are the two main ingredients for producing some dangerously ignorant people. After all, it was not cash-strapped families who had the time and money to travel to D.C. on a Wednesday to engage in a little insurrection tourism.

So, I hope the powerhouse panel does not literally believe that the folks who assaulted police officers with flag poles and bear spray (and more broadly those who endorse that conduct) would feel different if only they had better access to Aristotle and Voltaire. Because, as noted, they do have access. We all have greater access to the entire Western canon than we have had at any time in history. Yet, this access does not appear to be mitigating “the rise of authoritarianism,” as Sen. Wyden noted in his introduction. An adage about horses and water comes to mind.

The implication that one must be wealthy to afford access to books—or that the wealthy necessarily read—is a false generalization. It also happens to distract attention from the more pressing problem that the most economically disadvantaged households do not generally own the electronic devices needed to tap into the bounty of digital material the panel thinks should be more accessible.[4]

Yet, Kahle insists we must fulfill the “original” dream of the internet to foster a “new Library of Alexandria,” and he denounces copyright as the obstacle to achieving that end. It’s a bittersweet reference to say the least. In case he and the panel haven’t noticed, a cold civil war in America has already lit the library (metaphorically) on fire. Competing realities is the new reality. And that ain’t copyright’s fault.

The implication that copyright makes society ill-informed is not only contradicted by a litany of counterfactuals, but pursuing a legislative agenda based on this premise would only make the misinformation problem worse. For one thing, despite the disciplined use of the word information by this panel, and other adherents to their views, the copyright revisions they advocate would affect all works, a vast majority of which are not informative per se.[5]

Informative works, mainly nonfiction books, are written by a number of authors who do not make substantial returns on their enormous investments of labor and skill. For every Chernow who breaks through, there are hundreds of authors writing detailed histories that, despite their significance—some even win Pulitzer Prizes—do not easily compete with thrillers, tell-alls, or even literary fiction. Divest these historians and biographers of their copyrights, and they will not write these books at all. You don’t need to burn a library; you can simply starve the authors of the incentive to publish.

Moreover, the librarians’ agenda to change copyright law is myopic, even to the extent that it betrays their unique role in the publishing/consumer ecosystem. They consistently fail to recognize that changes in the copyright statute apply to all categories of works and would be exploited by commercial interests that would not only harm creators, but could also degrade the relevance of libraries. “Digital first sale,” for example, would have made the business venture ReDigi a lot of money, creating an ersatz secondary market that would damage the primary market for music, but that kind of model would also limit or obviate the need for libraries to loan works.

If “digital first sale” were the law, libraries could spend their resources digitizing all the books they want and not hope to compete with a commercial venture that conducts P2P transactions in “used” eBooks. In that paradigm, publishers are harmed, authors are harmed, and libraries may be starved of revenue and/or constituents who need their services. There are many reasons why “digital first sale” has been consistently shot down over the years.

So, as I have proposed before, where librarians see new difficulties fulfilling their mission in the contemporary market, they should endeavor to be specific, and also account for factors that have nothing to do with copyright law. Library carveouts already exist in the statutes, and if adjustments to these exceptions can be proposed to serve a clear purpose for libraries alone, then let those arguments be made.

But in the meantime, the librarians (love them though I do) should resist the sweeping declarations that the fate of democracy (i.e. information) rests in their hands. In the futile effort to make more books available for people who won’t read them, let us not deprive the market of new books for those who will. And if Senator Wyden and his cohort are genuinely concerned about misinformation tearing apart democratic institutions, they can find much better projects than stripping American authors of their rights.

[1]  Scholarly Publishing and Academic Resources Coalition

[2] “On average, Americans aged 20 to 34 spend a mere 0.11 hours reading daily, which amounts to less than seven minutes per day.” https://www.statista.com/topics/3928/reading-habits-in-the-us/

[3] https://ebookfriendly.com/comparing-reading-habits-five-generations-infographic/

[4] “Roughly three-in-ten adults with household incomes below $30,000 a year (29%) don’t own a smartphone. More than four-in-ten don’t have home broadband services (44%) or a traditional computer (46%). And a majority of lower-income Americans are not tablet owners.” Pew Research Center.

[5] The libraries’ own data reveals that circulation of nonfiction works is roughly 46% nationally, and of that 82% are cookbooks. Library Research Service.

Does the Internet Archive Need the Copyright Rhetoric to Be Useful?

Photo by fotoduki

Recently, a tweet caught my eye on the #copyright thread—something about the late Congressman Sonny Bono and a new collection at the Internet Archive, which is the vast digital library founded by technologist and entrepreneur Brewster Kahle.  The tweet linked to a blog post by Kahle announcing that a collection of copyrighted works published between 1923 and 1941 had been “liberated” and is now available on what the Archive has named The Sonny Bono Memorial Collection.

The eponym is not an honor of course. It’s a posthumous snipe at Bono, who is credited (or blamed, depending on one’s point of view) for the Copyright Term Extension Act (CTEA) of 1998, which added 20 years to copyright protection, resulting in the current term of life of the author plus 70 years.  Kahle’s post is bulked out with a lot of standard rhetoric condemning the duration of copyright, repeating the misleading narrative that Mickey Mouse was a major reason for the CTEA, and imply rather obtusely that the original 14-year, single-renewal term of 1790 ought to still be the law of the land (because of course the world functions much as it did in the late 18th century).  All that noise aside, however, the new collection with the sarcastic name is made possible by what Kahle calls, “a little known, and perhaps never used, provision of US copyright law, Section 108h, which allows libraries to scan and make available materials published 1923 to 1941 if they are not being actively sold.”

Let me interject to say that the Internet Archive is impressively handy.  I’ve already found a number of intriguing sources for a research project I’m just beginning; so, what follows is not an indictment of this or any other library, whether physical or digital.  I love libraries. But the reason for highlighting Kahle’s derisive tone is that it seems that there’s a lot of unnecessary conflict being sown between contemporary librarians and copyright law. And the crux of Kahle’s own announcement about this new archive underscores just how unnecessary the conflict is. To begin, Section 108(h) of the Copyright Act is not quite so arcane as he implies.

The statute was created as a specific carve-out for libraries, reflecting a compromise to attain passage of the term extension in 1998.  The exception allows a library to copy and make a work available during the last 20 years of its term of copyright protection, if copies of the work are not commercially available at a reasonable price. There are more conditions to the statute, but the underlying rationale is common-sensical enough. If these “Last 20” works are no longer available in the market—and high-priced, rare copies don’t count—then libraries are allowed to fulfill their mission by making the works available for the purposes of research and scholarship.  Meanwhile, the existence of the 108(h) exception, including proposals to amend it, actually rejects the attitude that Kahle and others sometimes adopt which ultimately pits authors against libraries.

New Scholarship on Section 108(h)

The challenges for a library wishing to apply 108(h) include research capabilities to learn the copyright status of works, and vagueness in the statute that can make proper analysis difficult. Enter Professor Elizabeth Townsend Gard, a copyright and history scholar at Tulane University. In collaboration with colleagues and students, she produced a 103-page paper, released this month, entitled Creating a Last Twenty (L20) Collection:  Implementing Section 108(h) in Libraries, Archives and Museums.

Gard’s paper offers two major contributions:  1) a comprehensive methodology for qualifying organizations to make effective use of the 108 exception in order to build what she calls “Last 20 Collections”; and 2) suggestions for possible revision of the statute in order to address what she sees as unnecessary gaps that leave organizations in limbo with regard to qualification and implementation. The heart of the paper is dedicated to methodology, in which she describes a taxonomic approach to identifying works, combining standard library cataloging systems with copyright data to yield the information required to know if a work is eligible for the 108(h) exception.  Given the amount of complexity involved, and the fact that I am neither a librarian nor an attorney, I cannot fairly comment on the system.

With regard to the statute, the US Copyright Office published its Model Statutory Language for revision of Section 108 in September of this year.  Gard commends some of the proposed changes and critiques others, making several recommendations that sound reasonable. For instance, she advocates better clarification of the extent to which the “used” market honestly represents “availability” of a particular work in fulfilling the purpose of 108(h). Some of her proposals may find critics at the USCO or among various stakeholders; but suffice to say, her work reads like a sensible foundation for compromise, which can be a rare find in contemporary discussions about copyright.

Making Section 108(h) Work is Not an Anti-Copyright Statement

Gard’s work represents a counterpoint, in my view, to many positions adopted by the ALA and related organizations, which have spent considerable energy aligning their interests with for-profit, technology companies in the hope of expanding—through litigation—the fair use exception and/or the first sale principle.  This approach seems both ideologically and pragmatically flawed, especially where the for-profit ventures clearly try to strain the underlying legal principles involved.

Libraries, archives, and museums, which exist for the primary purpose of advancing scholarship, deserve special consideration that is not accorded (and neither should it be) to for-profit ventures—or necessarily all non-profit ventures.  While the internet does create unprecedented opportunities for providing access to works that can lead to new areas of scholarship and new forms of creative expression, it also creates unprecedented incentive (i.e. crazy-big money) for various parties to try to blur the line between public-serving and private-interest ventures. Legitimate institutions of scholarship that ally themselves with this kind of vagueness are, in my view, working at cross-purposes with efforts like those of Professor Gard, whose proposals seek clearer guidelines for the types of institutions that deserve exceptions like Section 108(h).

To put this in context, there is nothing that necessarily bars a public-serving and privately-held platform like the Internet Archive (or Wikipedia) from becoming a monetized business venture, either independently or by selling all or some portion of its enterprise to a larger entity like Google.  Or if the Internet Archive were to earn revenue by selling its user data, this should run afoul of Section 108’s prohibition against using a “Last 20” collection to attain “indirect commercial advantage” for the archivist. I’m not saying the Internet Archive will do this, but if we keep in mind that indirect commercial advantage is the mechanism by which giant internet businesses make content “freely” available to the public, this awareness should inform any new statutory contours for an exception like 108(h).

Referring back to Brewster Kahle’s post, he quotes Carrie Russell, Director of ALA’s Program of Public Access to Information thus: “I’ve always said that the silver lining of the unfortunate Eldred v. Ashcroft decision was the response from people to do something, to actively begin to limit the power of the copyright monopoly through action that promoted open access and CC licensing.”  Eldred is the Supreme Court decision upholding the constitutionality of the CETA, and Russell’s statement here is frankly incomprehensible in a blog alluding to Gard’s efforts to make an existing, statutory limit on copyright work better.

Kahle himself seems unclear about the difference between the nuance in Gard’s work and his own desire to evangelize the bad-manners approach to copyright typically employed by Silicon Valley corporations. He writes, “Now it is the chance for libraries and citizens who have been reticent to scan works beyond 1923, to push forward to 1941, and the Internet Archive will host them.” That makes it sound as though Gard’s work just opened the flood-gates and that anyone should feel free to upload anything to the Internet Archive as if it were YouTube. Does this mean the Internet Archive will then do the 108 analysis before hosting, or that they’ll just duck behind the safe harbor of the DMCA?   Either you’re an entity that responsibly qualifies for the 108 exception, or you’re an ideologue eager to stick it to rights holders.  You can’t be both.

Professor Gard’s work strongly highlights the fact that carve-outs for libraries already exist in the copyright law; and where these statutes may not function as intended, they can be amended through good-faith collaboration with the USCO, stakeholders, and Congress.  To achieve this collaboration, however, the librarians and archivists would do well to tone down some of the rhetoric implying that the interests of preservation and research are incompatible with the interests of authors. It is plainly absurd for librarians and authors to be at odds, even in the digital age.

ReDigi, Fair Use, and Libraries

Photo by author.

In my last post, I opined that the fair use interests of librarians and educators are not necessarily aligned with for-profit business ventures seeking to exploit creative works in ways that can harm authors.  For instance, in the case of Capitol Records v ReDigi, now on appeal at the Second Circuit,  Jonathan Band filed an amicus brief on behalf of the American Library Association, the Association of College and Research Libraries, the Association of Research Libraries, and the Internet Archive in favor of a reversal of the district court opinion, which held that ReDigi is infringing.

To the casual observer, ReDigi is a service that acts as a middle-man to broker the sale of “used” MP3 files.  The idea is that, when you decide you’ve listened to your iTunes-purchased copy of Meat Loaf’s “Bat Out of Hell”* for the last time and think somebody else might want it,  you can sell the MP3 files via ReDigi as “used” items for a portion of the original price, with a cut going to ReDigi.  From a legal standpoint, however, ReDigi is a somewhat complex, computer-to-computer model hoping to avail itself of a copyright limitation written for a purely physical world.

To the best of my knowledge, the ReDigi model has changed a couple of times, but the way the system works is that the MP3 files being offered for sale are removed from the seller’s devices and copied onto the ReDigi server from which the seller alone may still listen to the tracks until they are purchased by someone else.  Upon sale, the files are removed from the server and copied again onto a device belonging to the purchaser. Naturally, this sounds attractive to many consumers, and ReDigi seems to have made an effort to ensure, to the best of its ability, that only one owner at a time has the files.  But that doesn’t necessarily make the service legal, or even a good idea in the market.

The district court held that ReDigi infringes the plaintiff’s rights of reproduction and distribution. ReDigi’s defenses that it is non-infringing were based on the first sale doctrine and fair use; and it is with regard to the fair use defense that the libraries apparently see a common interest.

Band’s amicus brief argues that a finding of fair use in ReDigi would set a precedent that furthers the interest of libraries to develop new models for digital-age lending and other services. And this is where I personally see a necessary distinction between the interests of libraries—which sometimes receive specific carve-outs in copyright law—and avoiding the particular harms caused by a ReDigi model, which could very easily be an Amazon-scale service overnight.

Digital First Sale Creates an Artificially Deflated Market

The first sale doctrine (Section 109(a) of the copyright law) is the reason you are allowed to sell your individual copies of books, CDs, DVDs, etc. as used items without infringing the copyright interest of the authors.  Its predicate is a case from 1908, long before anyone could possibly imagine “owning” entertainment media in the form of data that is not exclusively bound by a physical object like paper or a disk.   ReDigi argued that the first sale doctrine makes its business non-infringing, but the court disagreed on statutory grounds—namely that the language “plainly applies to the lawful owner’s ‘particular’ phonorecord, a phonorecord that by definition cannot be uploaded and sold on ReDigi’s website.”

As a technical matter, ReDigi has to make a copy of the files from the “seller’s” computer to ReDigi’s server. That copy is already an infringement of the rights holders’ exclusive right of reproduction, and that copying is not protected by first sale doctrine.  But even if one wishes to argue that this is a mere technicality, there is still ample reason not to apply first sale doctrine in a purely digital market.

The District Court stated that if ReDigi seeks amendment  to the Copyright Act to satisfy its interpretation of first sale, that this is job of Congress and not the courts. On that subject, Congress has reviewed first sale doctrine as part of its comprehensive review of the Copyright Act. (In fact, I sat on a panel in 2014 hosted by the USPTO discussing this very issue.) And the Department of Commerce examined the subject of digital first sale and concluded that the principle did not apply to digital transmissions and that there is no evidence warranting any change to existing law.

I advocate against digital first sale for the simple reason that digital files cannot be “used” according to any rational definition of that term.  Since 1908, the distinction between the used, secondary market for these goods and the primary market has been clear, with the former posing no threat to the latter.  Even in cases in which used items appreciate in value (e.g. rare books), I would argue this will only ever apply to physical goods and not to raw data that may be endlessly copied from device to device. (A signed, first edition Yeats is worth a couple grand; an eBook containing the same written material is free.)

Because a “used” digital file is as pristine as a “new” digital file, a service operating at scale like a ReDigi (or an Amazon) would simply create a new primary (or alternative) market that artificially degrades pricing for digital-only works.  Regardless of the fact that some consumers feel that any price above zero is a “rip off,” the reality is that we pay comparatively low prices for the media we store today, and even lower prices for media we access through subscription or ad-funded models.  If anything, Congress should reaffirm that first sale applies solely to physically-bound, legally acquired, copies of works.

ReDigi’s Fair Use Argument and the Libraries’ Interests

Apparently unconcerned with the potential harms of a ReDigi model in the consumer market, the above-named library organization would like the appeals court to find that ReDigi’s service is a fair use under the first prong of the fair use test:  1) The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit purposes.

Initially, ReDigi sought to defend its position as a cloud service—that users have a fair use right to store their files in the cloud; and Capitol did not dispute this part of the argument.  But the fact that this storage was “incident to sale” of the works meant that ReDigi’s service falls “outside the ambit of fair use.”  The district court agreed.  Moreover, the court held that ReDigi’s use was not “transformative” because its service does not add anything to the works and that the commercial nature of the use tilted away from a finding of fair use.  The other three prongs of the fair use test do not favor ReDigi, particularly the fourth, given that their use can clearly cause market harm to the rights holders.

In his brief, Jonathan Band takes a curious position that the lower court failed to understand how ReDigi is protected by first sale doctrine and that a reversal of this reasoning would support a finding of fair use.  He writes …

“The district court overlooked the obvious fact that the use ReDigi sought to enable was analogous to one permitted by a central feature of the Copyright Act: the first sale right, codified at 17 U.S.C. § 109(a). The district court found that ReDigi’s uses did not fall within the scope of section 109(a) because the first sale doctrine is a limitation on the distribution right, not the reproduction right, and ReDigi’s service involves reproduction. However, the similarity between ReDigi’s service and conduct permitted under section 109(a) should have weighed in ReDigi’s favor under the first fair use factor.”

Going back to what first sale allows—namely that you are free to sell that “Bat Out of Hell” CD at a yard sale—fair use doesn’t enter the picture at all. Your right to sell your particular copy of a book or album is not a use of a copyrighted work that in any way implicates a fair use defense.  So, even if these petitioners could persuade the court that it is sufficient that ReDigi is “analogous” to the application of the first sale principle, it is hard to imagine how this favors a finding of fair use, which is supposedly the real interest among these librarians.

My read is that the argument Band presents seems over-broad—a hope that a finding of fair use in ReDigi will open a wider door for libraries to develop new means to fulfill their missions in a digital world.  In this sense, Band appeals to the Google Books case, in which Google Books prevailed on fair use analysis to the benefit of library interests. But without writing another thousand words, suffice to say that Google Books is nothing like ReDigi.  Google Books does not engage in commercial transactions, it does not make whole works available, and it provides services that are either “transformative” (e.g. full-text search) or fair use prima-facie (making works available to the print-disabled).

A finding of fair use in ReDigi may generically support the interests of libraries (or it may not), but it seems a high price to pay to allow a harmful, for-profit company to vitiate fundamental copyright protections. As implied, this paves the way for a massive organization like Amazon to decimate what remains of the primary market for sales of creative works.  I believe these matters should be viewed separately, with libraries and universities pursuing their own interests in context to copyright law rather than riding the coattails of predatory and opportunistic business ventures.

*Nothing personal, Meat Loaf. First album that came to mind.