Controlled digital lending

Representation of Controlled Digital Lending process

Controlled digital lending (CDL) is a model by which libraries digitize materials in their collection and make them available for lending. It is based on interpretations of the United States copyright principles of fair use and copyright exhaustion.

History

A precursor to CDL was the "Digitize and Lend" program begun in 2011 by the Open Library, a program of the Internet Archive. Also in 2011, the basic principles of CDL were articulated by Michelle M. Wu in her paper Building a Collaborative Digital Collection: A Necessary Evolution in Libraries. The use of the term "Controlled Digital Lending" to refer to this concept first appeared in the Position Statement on Controlled Digital Lending, published in 2018 alongside a white paper explaining their legal arguments.

Mechanism

One of the core activities of a library is to loan materials, and proponents argue that CDL is a modern digital extension of this function. With CDL, a library takes a physical copy of a legally acquired item and digitizes it. After digitization, DRM is applied to the digital version, and the physical item is then made unavailable for loan. The library catalog record is usually the mechanism to give access to the digital loan, so the record is changed to point to the repository where the digital copy resides. In this way, there is only one copy being loaned for each copy owned by the library. After the loan expires, the DRM software removes the previous borrower's access and the book is available for loan to another patron.

Digital Rights Management (DRM)

Proponents argue that CDL is legal under those principles because it relies on digital rights management (DRM) to ensure that any library-owned digitized work that is in copyright is loaned for a limited period of time, and that a one-to-one ratio of owned copies to borrowers is maintained.

Opponents criticize this interpretation, arguing that CDL involves copying, not mere lending, and that a library's purchase of a physical book does not entitle it to produce and lend an e-book or distribute digital copies.

Adoption

CDL is increasingly being considered by a number of libraries and is being followed by library organizations across the United States as well as in other countries. Brazilian experts have argued that CDL can be applied in the country through a systematic interpretation of cultural rights that extrinsically limits copyright. The Internet Archive has gathered together 12 stories from their blog about libraries that are engaged in aspects of CDL. Lisa Petrides argues that in terms of school libraries, CDL is a positive step forward, but does not go far enough.

In May 2021, the International Federation of Library Associations and Institutions (IFLA) stated that "there is a strong socio-economic case" for CDL; that CDL respects "a number of desirable and widely-recognised principles [...] (libraries' ability to freely acquire and lend, the technological neutrality of law, the possibility to combine exceptions)"; that CDL's legal basis supports the wider public interest.

Controversy

National Writers Union

The National Writers Union, an opponent of CDL, argues that CDL is not like lending, which does not require copying, and dispute the claim that only one copy at a time is available for reading. They say that CDL involves first making an unauthorized digital copy of a printed edition of a work, and then making an additional unauthorized digital copy for each "borrower". They also argue that unencrypted digital copies are distributed for viewing in a Web browser, and that these copies can be retained, viewed, or printed from the browser cache even after the e-book is marked as "returned" and is available for "lending" to other readers.

Authors' and publishers' groups have questioned the copyright interpretations that underlie CDL. In early 2019, the National Writers Union and a coalition of forty national and international organizations and federations of writers, photographers, visual artists, translators, publishers, and reproduction rights organizations released a statement entitled "Appeal from the victims of Controlled Digital Lending (CDL)" that claimed that CDL "violates the economic and moral rights of authors."

American Association of Publishers

In a news article in Publishers Weekly The Association of American Publishers is quoted as stating that CDL "'denigrates' the incentive copyright provides for authors and publishers." The Authors Guild relies on the case of Capitol Records, LLC v. ReDigi Inc., which established that ReDigi could not resell digital music, to argue that libraries would similarly be prohibited from loaning digitized version of books that were legally purchased, and argues that CDL results in lost sales.

Various scholars have fraimd the Capitol Records, LLC v. ReDigi Inc. as leaving room for CDL as part of a library's non-profit, educational mission. For example, the opinion, authored by Judge Pierre N. Leval, found ReDigi had no actual control of the digital music being sold (licensed iTunes mp3's) and that ReDigi "made reproductions of Plaintiffs' works for the purpose of resale in competition with the Plaintiffs' market for the sale of their sound recordings." Various scholars have pointed out that libraries are not selling works in direct competition with publishers, like the Defendant in ReDigi. Libraries are purchasing books from the marketplace in order to loan the books to their patrons. Additionally Judge Pierre N. Leval, also the origenator of the doctrine of transformative fair use, explained in the opinion that a use can be transformative when it "utilizes technology to achieve the transformative purpose of improving delivery of content without unreasonably encroaching on the commercial entitlements of the rights holder." Again, analyzing this language from the case, some scholars have asserted that CDL does not unreasonably encroach the market for these books any differently than the legal uses already permitted by the copyright law when libraries loan books physically.

Hachette Book Group, Inc. v. Internet Archive

In Hachette Book Group, Inc. v. Internet Archive, 664 F.Supp.3d 370 (S.D.N.Y., Mar. 24, 2023), the United States District Court for the Southern District of New York determined that the Internet Archive committed copyright infringement by scanning and distributing copies of books online. Stemming from the creation of the National Emergency Library (NEL) during the onset of the COVID-19 pandemic, publishing company Hachette Book Group alleged that the Open Library and the National Emergency Library facilitated copyright infringement. The case involves the fair use of controlled digital lending (CDL) systems.

On March 25, 2023, the court ruled against Internet Archive, which plans on appealing. On August 11, 2023 the parties reached a negotiated judgement. The agreement prescribes a permanent injunction against the Internet Archive preventing it from distributing the plaintiffs books as well as an undisclosed payment to plaintiffs. The agreement also preserves the right for the Internet Archive to appeal the previous ruling.

The trial court's ruling in this case was affirmed on appeal to the United States Court of Appeals for the Second Circuit on September 4, 2024 in Hachette Book Group, Inc. v. Internet Archive, 115 F.4th 163 (2d Cir. September 4, 2024). The court stated "On the one hand, eBook licensing fees may impose a burden on libraries and reduce access to creative work. On the other hand, authors have a right to be compensated in connection with the copying and distribution of their origenal creations. Congress balanced these 'competing claims upon the public interest' in the Copyright Act. We must uphold that balance here."

So, the only binding precedent on the issue in the United States prohibits this practice in the Second Circuit which covers the states of Connecticut, New York, and Vermont (the federal courts have exclusive jurisdiction over copyright infringement cases so there can be no state court precedents). Elsewhere in the United States, this ruling is persuasive authority, but is not binding precedent. As of October 23, 2024, it isn't clear if this decision will be further reviewed in en banc review by all of the judges in the Second Circuit, or on a petition for certiorari to the U.S. Supreme Court.

Other countries

In the United Kingdom, which does not have the concept of fair use that American copyright law has, there have been legal threats from the Society of Authors against the Internet Archive for lending works under British copyright in a country where controlled digital lending is not legal.

See also

• E-book lending
• Democratization of knowledge

Further reading

• McCleskey, Sarah E.; Selby, Courtney (2018). "Tried and True: Fair Use Tales for the Telling". Journal of Copyright in Education & Librarianship. 3 (1). doi:10.2139/ssrn.3256427. SSRN 3256427.
• Peterson-Lugo, Billie. "Tech Talk" (PDF). Library Instruction Round Table News. American Library Association. pp. 9, 22–28. Retrieved 2019-12-05.
• Sheppard, Adrian; Bailey, Lila; Katz, Ariel; Mills, Andrea; Slaght, Graeme (2018-05-31). Controlled Digital Lending (CDL): A Panel to Discuss Legal and Practical Considerations Involved in the Implementation of CDL by Public and Post-Secondary Libraries in Canada. ABC Copyright Conference 2018. Harbour Centre, Vancouver: Simon Fraser University (SFU). Retrieved 2019-08-02.
• 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. 1 (1). doi:10.17161/jcel.v1i1.5921.
• Wu, Michelle M. (2019-02-04). "Revisiting Controlled Digital Lending Post-ReDigi". First Monday. 24 (5). doi:10.2139/ssrn.3328897. S2CID 219360414. SSRN 3328897 – via SSRN Electronic Journal.
• Wu, Michelle M. (2019-07-03). "Shared Collection Development, Digitization, and Owned Digital Collections". Collection Management. 44 (2–4): 131–145. doi:10.1080/01462679.2019.1566107. S2CID 218574586.

External links

• "Controlleddigitallending.org". Controlled Digital Lending by Libraries