The judge infers that Fair Use cannot be applied if a reasonable licensed version of the material is available. This is what is fascinating, because on one hand this plays into the industries hands. The Big 6, Hollywood, and all the legacy content producers see digital as a perfect opportunity to get rid of First Sale and cut the rug out from under libraries completely. They don't like us and how we cut into their profits. Many librarians and academics are puzzled as to the Big 6 attitude to libraries right now. I believe they are biding their time until the death of Fair Use when they can quietly surprise us by calling the relationship off. "It's not you. It's me. I am ready to move on." Libraries will be every bit as surprised as the jilted suitor. They should not be, because Publishers are fighting for their lives here, and if it is a toss up between us and them they will choose self preservation.
This fits perfectly with the overall message Mike Shatzkin makes here. The post is worth reading in its entirety as he very nicely sums up the battle waging between some of the power players over ebooks. It is critical to recognize from his post that publisher's saw the value of direct sales 6 years ago, as it would increase their profits- and their control. It's all about profit and survival.
Which brings me back to the lawsuit against GSU. As I suggested above, the "license" component plays into the hands of those who would like First Sale to go away and see Fair Use limited even more. But her argument also has one ray of hope for us. The stipulation that licenses must be reasonable. "Reasonable" is a flexible term. Hollywood thinks of reasonable as thousands of dollars for one film license- libraries will go under in this type of licensing. But it seems that the judge connects reasonable to dollar amounts and use that fits library budgets.
This is critical because the judge has opened up a new line of attack for libraries. Even in the licensing model, we now have room to question the arbitrary prices publishers and content vendors place on their licenses. At least for a few years...