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Controlled Digital Lending: Legal Lending or Piracy?
By
Volume 45, Number 1 - January/February 2021

When the pandemic hit and libraries around the world shut down physical operations, the rush toward ebooks accelerated.

Many libraries already had a supply of ebooks avail able for loan, possibly through a subscription to OverDrive or the presence of purchased ebooks within their collection. This satisfied library book readers, but only to a point. Brewster Kahle, for one, thought more could be done. As the guiding light behind the Internet Archive (archive.org), Kahle decided to make digital versions of books held by the Archive available for lending. Called the National Emergency Library, it was scheduled to run from March 24, 2020, to June 30, 2020, but closed instead on June 16, 2020, due to pressure from a lawsuit filed by the Association of American Publishers (publishers.org/news/publishers-file-suit-against-internet-archive-for-systematic-mass- scanning-and-distribution-of-literary-works), representing four major publishers: Hachette Book Group, HarperCollins Publishers, John Wiley & Sons, and Penguin Random House.

The contretemps focused attention on the concept of controlled digital lending (CDL), with opinions on its applicability to the Internet Archive’s emergency library initiative running the gamut from totally fine to highly illegal. The views of librarians, publishers, and authors span all sides of the CDL issue.

INTERPRETING COPYRIGHT LAW

CDL has been controversial for several years; it didn’t start with the National Emergency Library. It’s an interpretation of copyright law, not the law itself, hence, the controversy. The origin can probably be traced back to the Open Library (openlibrary.org), also an Internet Archive project, with additional funding from the California State Library. Open Library is an open, editable library catalog, which is trying to build a webpage for every book ever published. Talk about stretch goals! It also allows for book borrowing.

The Controlled Digital Lending by Libraries site (controlleddigitallending.org), calls CDL “an emerging method that allows libraries to loan print books to digital patrons in a ‘lend like print’ fashion.” Lending digital titles in a similar fashion to how print materials circulate operates on the “owned-to- loaned” model, which stipulates that a library can only loan the exact number of copies that it owns, regardless of format. Borrowers should not be able to redistribute or copy the digitized version. The site addresses copyright by saying, “When CDL is appropriately tailored to reflect print book market conditions and controls are properly implemented, CDL may be permissible under existing copyright law. CDL is not in tended to act as a substitute for existing electronic licensing services offered by publishers. Indeed, one significant advantage of CDL is addressing the ‘Twentieth Century Problem’ of older books still under copyright but unlikely ever to be offered digitally by commercial services.”

  • Quoting the site, the objectives of Controlled Digital Lending by Libraries are to do the following:
  • better understand the legal framework underpinning CDL, communicate their support for CDL, and
  • build a community of expertise around the practice of CDL.

On the site is also the Position Statement on Controlled Digital Lending, which was last updated in September 2018. It is an extensive “good faith interpretation of U.S. copyright law for American libraries considering how to perform traditional lending functions using digital technology while preserving an appropriate balance between the public benefit of such lending and the protected interests of private rights holders” (controlleddigitallending.org/statement). Right up front it recommends that individual libraries seek legal advice before jumping into controlled digital lending. It also recognizes that there needs to be a balance between library lending and publisher concerns.

What it doesn’t offer is links to any news items about CDL after March 12, 2020. That was the day the U.S. announced it would suspend most travel from Europe, and shutdowns of libraries and educational institutions began, along with offices and retail outlets. The world went into full pandemic, lower-the-curve, fight-the-spread mode. And 2 weeks later, Kahle went into his Emergency Library mode.

At The Scholarly Kitchen, Karin Wulf, director of the Omohundro Institute of Early American History and Culture and professor of history at the College of William & Mary, covers the Emergency Library, explaining the rationales of both its proponents and detractors in an April 2, 2020, article (“The Internet Archive Chooses Readers”; scholarlykitchen.sspnet.org/2020/04/02/the-internet-archive-chooses-reader). She describes her personal experience in trying to borrow a book (it’s more than a bit laborious) and concludes, “The Internet Archive is not breaking the glass to save anyone but rather seems to be just … breaking glass. It is not meeting the moment of crisis; it is missing the moment to learn and to teach the interdependent production of humanity’s greatest work: collaborative knowledge.”

LIBRARIANS IN SUPPORT OF CDL

Michele Wu, former law librarian at Georgetown University and one of the co-authors of the Position Statement, has been a leading proponent of the legality of CDL, with several articles espousing its legality:

  • Wu, Michelle M. (2016-09-12).”Collaborative Academic Library Digital Collections Post-Cambridge University Press, HathiTrust and Google Decisions on Fair Use.” Journal of Copyright in Education & Librarianship, v.1 (1). doi:10.17161/jcel.v1i1.5921.
  • Wu, Michelle M. (2019-02-04). “Revisiting Controlled Digital Lending Post-ReDigi”. First Monday, v. 24 (5). doi:10.2139/ssrn.3328897.
  • Wu, Michelle M. (2019-07-03). “Shared Collection Development, Digitization, and Owned Digital Collections.” Collection Management, v.44 (2–4): pp. 131–145. doi:10.108 0/01462679.2019.1566107; S2CID218574586.

In October 2020, Wu received the Internet Archive Hero Award for her activities in crafting “the legal theory behind Controlled Digital Lending (CDL) and [has dedicated] much of her career to showing libraries how to put the concept into practice” (blog.archive.org/2020/10/20/michelle-wu-receives-inter net-archive-hero-award-for-establishing-the-legal-basis-for- controlled-digital-lending). She was honored for her commitment to scholarship, influence on the next generation of librarians, and hard work.

Another initiative, called Project ReShare (projectreshare. org), announced on Oct. 26, 2020, that the Internet Archive and the Colorado-based consortium, Marmot Library Network, had joined the project. Project ReShare was founded in 2018 to be a “new and open approach to library resource sharing” and CDL is a vital component of this approach. A presentation by Kristina Rose (New York University) and Sebastian Hammer (Index Data) at the 2020 Charleston Conference (charlestonlibraryconference.com) was titled “Recognizing Opportunity: A Path Forward for Controlled Digital Lending.” In addition to backgrounding the audience on CDL, Rose and Hammer looked to a future of consortial CDL models that would pro mote collaboration and implement systems interoperability.

On May 22, 2020, Public Knowledge hosted a webinar titled “Controlled Digital Lending: Getting Books to Students During the Pandemic & Beyond,” moderated by Meredith Rose, policy counsel at Public Knowledge. The speakers were Cory Doctorow (author, Radicalized and Walkaway; special advisor to the EFF; visiting professor of practice in library science, UNC–Chapel Hill), Chris Freeland (director, OpenLibraries at the Internet Archive), Lisa Petrides (CEO and founder of Institute for the Study of Knowledge Management in Education [ISKME]), and Lisa Weaver (director, collections and program development, Hamilton Public Library). They discussed how technology can be used to ensure that students, educators, and others can continue to remotely access the collections they need during lockdown and beyond (publicknowledge.org/event/ controlled-digital-lending). Doctorow expressed his frustration when he commented that the pandemic would have been a great time for publishers and libraries to become allies instead of antagonists. That didn’t happen.

NATIONAL WRITERS UNION

But all is not rosy on the CDL front. In addition to the lawsuit filed by the publishers, another vocal opponent of CDL is the National Writers Union. Edward Hasbrook on April 16, 2020, asked “What Are They Doing With Our Books? (nwu.org/what-is-the-internet-archive-doing-with-our-books). In his view, the Internet Archive is involved in “book scanning and e-book bootlegging.” On the NWU’s website is its FAQ about CDL (nwu.org/book-division/cdl/faq). It pulls no punches, stating that “Controlled Digital Lending (CDL) is a label coined by the Internet Archive and some lawyers and librarians to describe a particular methodology of digital piracy (unlicensed copying and distribution) of books.”

In the FAQ’s section about why people should care about CDL, the NWU says, “CDL infringes authors’ and publishers’ copyrights and deprives them of revenues that they would earn if readers obtained their works though other, legitimate channels.” Those “other, legitimate channels” include legal library borrowing, it hastens to add. The NWU notes that libraries can lend only one copy of a physical book at a time, whereas CDL allows for multiple borrowers to access the same ebook at the same time. The FAQ goes on to explain how DCMA (Digital Millennium Copyright Act) takedowns work and notes that the Internet Archive has not published its policy about takedown requests.

The NWU’s objections to CDL predate by many years the Internet Archive’s establishment of the National Emergency Library. It has long been opposed to the scanning of in- copyright materials, even those the Archive views as orphan works, defining them as unauthorized copies. I recall attending the 2012 UC–Berkeley Conference on Orphan Works and Mass Digitization, where a member of the NWU engaged Kahle in a lengthy discussion about the illegality of the Archive’s scanning activities and the resulting loss of revenue to authors. Neither convinced the other.

In his “What Are They Doing With Our Books” post, Hasbrook addresses the role of librarians in regards to CDL:

Librarians aren’t trying to harm authors. But they need to recognize that until they sit down (physically or virtually) with authors, they will have heard only one side of this debate. The voices of well-meaning librarians who consider themselves allies of authors, welcome though they are, are no substitute for giving impacted individuals–authors, in this case–a seat at the table to speak for ourselves when library policies that affect us are being considered. If we say, “Stop! You are hurting us,” it’s the height of condescension to respond by telling us that you know better than we do whether we are being harmed, or that what you are doing to us is really for our own good.

CDL AND FAIR USE

One defense of CDL lies in the legal doctrine of fair use. This is definitely open to debate—and has been debated in several places. In a spirited discussion on the Library Licensing discussion list during late May and early June 2020 (listserv.crl.edu/ wa.exe?A0=LIBLICENSE-L), Janice Pilch, copyright education librarian; liaison to departments of philosophy, religion and linguistics; and member of the library faculty, Rutgers University Libraries, New Brunswick, calls CDL “aspirational fair use” attempting to assert legitimacy where there is none, and at tempting to garner support from people paid or otherwise incentivized to endorse the Internet Archive so as to make the fair use claim seems legitimate.” She goes on to say that CDL is not really lending; it’s “temporary digital access” and a “tenuous abstract concept thought up by tech entrepreneurs and their supporters.” Library lending, in contrast, is based on legal licensing agreements. In her critique of CDL, she asserts that it’s neither lending nor controlled. As such, it qualifies as piracy.

In this same discussion thread, David Hansen, associate university librarian for research, collections, and scholarly communication, and lead copyright and information policy officer, Duke University Libraries, comments, “To be very clear to all, we don’t have a fair use case squarely on point that addresses controlled library lending of digitized books, so for now we are making analogies to other fair use cases and the principles they articulate. Fair use is a fact intensive inquiry, and so even then, how a court would treat IA’s [Internet Archive’s] implementation of CDL under fair use as compared to other implementations (e.g., how HathiTrust is providing access right now under ETAS) may differ.”

Striking an interesting balance is Ex Libris. It published, on Oct. 15, 2020, on its Developer Network page, an explanation of how librarians can use Alma Digital for CDL purposes (“Con trolled Digital Lending With Existing Tools in the Toolbox: Alma Digital”; developers.exlibrisgroup.com/blog/controlled-digital- lending-with-existing-tools-in-the-toolbox-alma-digital). It explicitly states that setting up access rights is a first step.

LAWFUL OR NOT?

In response to the publishers’ lawsuit, the Internet Archive initiated a campaign called Empowering Libraries (#empoweringlibraries), which defines digital book lending as part of “the right of libraries to own and lend digital books” (blog.archive. org/empoweringlibraries). Proclaiming that the role of libraries in a democratic society is threatened by the legal action, it couches the issue in terms of libraries’ mission to lend to marginalized groups and of digitized books as preserving cultural heritage. Essentially, it’s a very emotional appeal, appearing to claim that all libraries might lose all their rights regarding ebooks if the publishers prevail. This is a basic misreading of CDL.

The ultimate designation of CDL as either a lawful practice or an outright theft of copyrighted materials will be up to the courts. CDL is currently not codified, and emotions run high on both sides of the legality issue. Despite this, CDL will likely continue as a core function of the Internet Archive. How it affects CDL practices in libraries remains to be seen. Librarians will have to think long and hard about whether to institute a form of DCL at their institutions and if they should recommend CDL-based book borrowing from the Internet Archive. With guidance from the courts missing thus far, it’s up to individual libraries to establish policies.


Marydee Ojala is Editor-in-Chief of Online Searcher (the successor journal to ONLINE) and writes its business research column ("The Dollar Sign"). She has contributed feature articles and news stories to Information TodayEContentComputers in LibrariesIntranetsCyberSkeptic's Guide to the InternetBusiness Information Review, and Information Today's NewsBreaks. A long-time observer of the information industry, she speaks frequently at conferences, such as WebSearch University, Internet Librarian, Online Information (London, UK), Internet Librarian International, and national library meetings outside the U.S. She has adjunct faculty status at the School of Library and Information Science at IUPUI (Indiana University Purdue University Indianapolis). Her professional career began at BankAmerica Corporation, San Francisco, directing a worldwide program of research and information services. She established her independent information research business in 1987. Her undergraduate degree is from Brown University and her MLS was earned at the University of Pittsburgh.

 

Comments? Email the editor-in-chief: marydee@xmission.com

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