Despite recent litigation, the practice of controlled digital lending (CDL) continues — and is likely here to stay, according to experts recently gathered for a webinar hosted by SPARC.
“CDL is not dead. It’s been around for a long time. It’s ingrained into a lot of libraries as a means of considering access differently,” said Kyle K. Courtney, a lawyer, librarian, and director of copyright and information policy at Harvard University. “It’s another viable solution for collections that are rare, local, and have little zero market harm, but have high value to communities.”
Courtney was part of an online panel Oct. 3 discussing the impact of the Hachette v. Internet Archive case in which publishers challenged CDL. Many libraries allow users to check out a digital copy of a physical book that the library owns, one user at a time, through CDL.
Earlier this year, the Southern District of New York issued a judgment in favor of the four large publishers, but one important aspect of the order sided with the Internet Archive regarding the reach of the decision. The original claim sought to have the Archive remove 127 ebooks from CDL. During negotiations, the publishers asked for the judgment to extend to all books in IA’s digital loaning library. However, the judge said the case did not concern copyrighted works that are not yet in electronic form. Although the Archive lost the case, Courtney said, this limitation in the injunction’s scope did some “damage control,” which was encouraging.
In September, the Internet Archive filed an appeal in the matter.
“We are certainly disappointed in the outcome of the lawsuit, but we are fighting on for CDL,” said Chris Freeland, director of library services at the Internet Archive. “Libraries have to be able to own our collections and use our physical materials in the digital age. While we’re fighting this battle in court, we know that libraries all over the U.S. and all over the world are watching and considering what it means for their practice.”
Courtney said the core of CDL is about making collections available to the widest audience possible, library patrons, in furtherance of research, scholarship, and general learning literacy. “The vast majority of books have not made the jump to digital,” he said. “These are on our shelves and if no one else is going to digitize them to make them available, then it’s up to us to do that.”
The concept of libraries maximizing their collections and providing digital access can be traced back 2011, explained webinar panelist Sandra Aya Enimil, lawyer, librarian, and program director for scholarly communication and information policy at Yale University Library. In 2018, Courtney and Dave Hansen published a white paper laying out the case for controlled digital lending, she continued.
The First Sale Doctrine, section 109 of U.S. copyright law, enables libraries to operate by allowing them to acquire, loan, or otherwise dispose of materials in its collections. Fair use, section 107 of U.S. copyright law, is a four part analysis in U.S. copyright law which considers the purpose, nature, amount, and possible market harms of using copyrighted content. CDL relies on section 109 and section 107, to mimic the library lending practice in a digital sphere, Enimil said. By lending out one item at a time that the library legally owns, CDL allows libraries to treat digital patrons in the same manner as physical patrons. Also, many of the items made available through CDL are out of print or orphaned books that are unlikely to cause market harms , she added.
The Boston Library Consortium has partnered with Project ReShare to accelerate the development of CDL as a mechanism for interlibrary loan over the last two years. Charlie Barlow, executive director of the Boston Library Consortium, spoke at the webinar about the effort and the Statement on Using Controlled Digital Lending as a Mechanism for Interlibrary Loan, which has been endorsed by 40 libraries and consortia. In promoting wide scale adoption through engagement with library consortia and vendors, Barlow said a tool kit with resources for implementation and a national convening to discuss future strategies are being planned as part of an IMLS-funded project.
An audience poll during the recent SPARC webinar underlined the continued momentum behind CDL. Of the respondents who knew what the status of CDL was at their institution, 70% either had an active CDL program or were discussing creating one. Limited resources was the larger of the two barriers for those not pursuing CDL, 20% among those polled, with legal concerns as the primary barrier for 10%.
-Cross posted by SPARC and Internet Archive