"However, Judge’s book likely falls under fair use, says Annemarie Bridy, professor of law at the University of Idaho. For one, Judge’s book is out of print, so the Internet Archive is not making revenue or taking revenue away from the author or publisher. Wasted is also a memoir, and copyright is stronger in creative works of fiction. And there is a strong public interest in the book, since Judge is a significant part of a newsworthy conversation.
“It’s not a slam dunk that it’s fair use,” says Bridy. “But the controlled digital lending model is careful enough about what they are doing to have a pretty good case that this book [falls under] fair use.”
Of course, the Internet Archive has a stronger case because it’s trying to uphold a public mission as a digital library, including promoting literacy and access to knowledge. “Copyright laws privilege libraries,” said Bridy. “Internet Archive is just trying to do something that’s consistent with its mission, but in a way that tries to respect copyright.”"