Controlled Digital Lending Workflows at the TCC Library : Intro

'“But didn’t the Second Circuit say CDL is illegal?” No.

The Second Circuit affirmed a judgment against the Internet Archive’s particular program, focusing on a subset of books for which the publishers had active e‑book licensing markets and on the Archive’s implementation choices. That opinion is a problem, and I’ve written at length about its loose talk on market harm and its blinkered view of library missions, but it didn’t hold that every controlled scan of every owned print book is per se unlawful in every context. The decision asked and answered a specific question about a specific factual record; it didn’t erase first sale or fair use or the ability of libraries to design systems that keep market effect aligned with physical lending.' 

-"Controlled Digital Lending Is Still Not Dead; It Just Got a New Job: Saving Interlibrary Loan from Tariff Chaos" Copyright fight club

While this judgment does not impact the majority of books lent via CDL by the Archive, the case continues to hold significant relevance for libraries that are considering using or currently using CDL.

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We are often asked by libraries if CDL is now illegal due to the ongoing case. The short answer is: Definitely not. CDL is alive and well in the library community. I look forward to continuing to work with the National Information Standards Organization (NISO) to release our standards for CDL, which include guidelines for commercial services that wish to build CDL systems. The CDL Implementers Group regularly welcomes over 100 library workers. We look forward to supporting the Archive in continuing to push the digital lending envelope as well and hope our community members will do the same.

CDL remains a safe and accepted digital mode of access as practiced by libraries while lending in a limited scope to their patrons in conjunction with other lending programs. The more open approach practiced by the Archive is contested by publishers, but still protected, and should not affect or alter a library’s desire to implement or continue a CDL system, collaboratively or with partners including Open Libraries.

Library Futures

In a short written opinion made public yesterday, Koeltl sided with the Internet Archive in a final dispute, limiting the scope of the permanent injunction to cover only the plaintiffs’ print books that also have electronic editions available.

Publishers Weekly

"Does this ruling have implications for libraries that provide digitized copies of materials to scholars and patrons, such as through interlibrary loan?

Libraries can continue to provide digitized copies of materials to scholars and other patrons in a manner consistent with the document supply provisions of 17 U.S.C. 108(d) and (e). Libraries also will be able to continue their existing programs for providing access to digitized copies of orphan works and other out-of-commerce titles. The ruling only concerns the lending of titles that are available through commercial eBook licensing platforms such as OverDrive. 

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This ruling applies to a narrow set of facts, and at this point, it is only the ruling of a trial court. The decision of the Second Circuit on appeal will have significantly more precedential weight, but it too likely will address only the narrow issue of library copying and lending in direct competition with the titles available through commercial eBook licensing channels." - Choice360

What is most troubling in this decision is its lack of consideration of the fact that the Internet Archive is a library, and the existing rights extended therein, which is a core distinguishing feature of this case. Conducting circulation of content for library purposes to library patrons is one of the foundational aspects of any library. One could remove the “e” from “ebooks” and the same notional harms to publishers argued by the Plaintiffs in this case would still exist. People can and do argue that libraries harm publishers’ sales and profits, because as was quoted in the ruling “It is hard to compete with free”. Yet that is what libraries do, they acquire content and distribute it to patrons free of charge. And conceivably there exists a library patron that might have turned to a bookstore to purchase the item, resulting in this scenario to a lost sale for the publisher. Avoiding the question of what a library is and does as irrelevant in this case seems to me to entirely miss the point. Whether that reader is provisioned with a print book or a digital copy is a matter of form, not function, so long as the publisher is compensated for that sale, which in either case it has been. The Internet Archive is aggressively seeking to extend this argument and will push it up the Appeals Court ladder as far as they can to advance their aims. I am not certain, however, that the court system, as it is currently populated, will be receptive to the IA’s arguments.

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Regardless of the outcome of this case on appeal, there remains a strong case there are legitimate uses of controlled digital lending that libraries are well within their rights to pursue. The best example of this is its application for accessibility purposes, when remediation usually involving digitization and secure distribution. This is a well-protected service that libraries can provide in alignment with Section 108 of the Copyright Act, with the Marrakesh Treaty, and as supported by case law, specifically, both in Sony v. Universal City Studios and Authors Guild v. HathiTrust. The decision last Friday also highlighted accessibility as a permissible application of library scanning and CDL. Other applications, such as for special collection materials, likely will remain within the purview of libraries, but these will be edge-case applications. The ruling even went so far as to acknowledge that not all of the actions of Internet Archive resulting from their digitization, such as indexing or display of snippets, are infringing activities and that therefore all of the digital scans might not need to be destroyed.' - Scholarly Kitchen

'Juliya M. Ziskina, who wrote a brief backing the Internet Archive for a pair of library groups, read the decision as “pretty specific to the controlled digital lending of the Internet Archive.” Others saw broader legal impact, and even Ziskina said it would likely have “a chilling effect” on libraries...

She said “it’s important to keep perspective,” pointing to Second Circuit copyright fair use victories in cases involving Google Books and HathiTrust. She, and others, also noted that the case was bound for the Second Circuit regardless of how the district court ruled.'

- Bloomberg Law

'“This ruling is disappointing, and it should be overturned on appeal.

“Securing the future of libraries, and ensuring that consumers’ and readers’ rights are not forgotten in the digital age, is about more than just one court case. In area after area, companies, like the publishers who sued Internet Archive, are using the transition to digital media and technologies to take away long-established consumer rights to repair, lend, and resell the things they own.

“When the publishers sued the Internet Archive, they argued among other things that CDL interferes with the market for ebooks. But there is no real market for ebooks because publishers won’t sell ebooks to libraries at any price – instead, they license them, under highly restrictive terms, for limited times, at costs that are much higher than it costs to buy paper books.'

- Public Knowledge 

'It is further important to note that copyright protects a work, not a format. As we wrote in our amicus brief, “To be clear: CDL does not replace licensed eBook lending.” There are many reasons why a library might digitize a book for CDL rather than purchase a licensed ebook: the ebook is not available, they wish to facilitate research or reference purposes for an out of print edition or particular individual’s copy, access for the print disabled, or they face a lack of availability from publishers. As Wu said on our liveblog, “In CDL, the library paid for the copy that it’s using. It’s just changed the format and honors an own to loan ratio.” Because the materials are sequestered in a traditional CDL system and the content is not changed or duplicated, the digitization is simply a shift in format, which is crucial to preservation and the functioning of digitallibraries.'

-Library Futures 

"At an online press conference ahead of oral arguments, Lila Bailey, senior policy counsel for the Internet Archive, alluded to a potentially extended legal battle, defending CDL as the latest in “a long history of innovations” developed by librarians. “In the past, publishers stood against microfilm and photocopiers, crying harm. They said they would be harmed by interlibrary loan. They lobbied for decades against libraries being allowed to provide access for the blind and print-disabled. They were wrong. It took years, but eventually the law affirmed each of these things.”"

- Publishers Weekly

'In a sliver of good news for the Internet Archive, Koeltl held that their petition to have statutory damages remitted per section 504 of the Copyright Act was "relevant" and said its lawyers could renew the argument in connection with any final judgment in the case. Section 504, which deals with damages, offers some relief where the infringer is a “nonprofit educational institution, library, or archives,” and the infringers “believed and had reasonable grounds for believing” that its use of the work was fair use.

And Koeltl also acknowledged that the Internet Archive is of course still free to lend books in its collection that are in the public domain, and free to use works still covered by copyright in "a manner consistent with the uses deemed to be fair in Google Books and HathiTrust," such as indexing, snippet view, and full access for the print disabled. That line suggests the publishers will likely not prevail in asking for the infringing scans to be destroyed, as the initial complaint had asked for, as it acknowledges there are legal uses for the IA's in-copyright scans.

But with a permanent injunction now in the offing, the ruling stands as an unequivocal, potentially fatal blow to the practice of controlled digital lending, which Internet Archive officials appeared to acknowledge in a statement on Friday afternoon.

"This decision impacts libraries across the US who rely on controlled digital lending to connect their patrons with books online," the Internet Archive statement reads. "It hurts authors by saying that unfair licensing models are the only way their books can be read online. And it holds back access to information in the digital age, harming all readers, everywhere."

Of course, there is also the appeal process, which Internet Archive officials vowed to pursue.

“Libraries are more than the customer service departments for corporate database products. For democracy to thrive at global scale, libraries must be able to sustain their historic role in society—owning, preserving, and lending books," said Internet Archive founder Brewster Kahle. "This ruling is a blow for libraries, readers, and authors and we plan to appeal it.”' - Publishers Weekly

"Let’s hope the higher courts have a deeper understanding of what is at stake here."

-Walled Culture 

"Publishers are not archivists, they’re not librarians, and they shouldn’t be in control of cultural posterity." 

- Popula 

"The other distinctions are meaningless as well. No, IA is not building devices for people to buy, but in many ways IA’s position here should be seen as stronger than Sony’s because Sony actually was a commercial operation, and IA is literally acting as a library, increasing the convenience for its patrons, and doing so in a manner that is identical to lending out physical books. Sony created a machine, Betamax, that copied TV shows and allowed those who bought those machines to watch the show at a more convenient time. IA created a machine that copies books, and allows library patrons to access those books in a more convenient way.

Also, the Betamax (and VCR) were just as “available to the general public” as the Internet Archive is. The idea that they are substantially different is just… weird. And strikes me as pretty clearly wrong.

There’s another precedential oddity in the ruling. It relies pretty heavily on the somewhat terrible fair use ruling in the 2nd Circuit in the Warhol Foundation v. Goldsmith case. That case was so terrible that we (at the Copia Institute) weighed in with the Supreme Court to let them know how problematic it was, and the Supreme Court is still sitting on a decision in that case.

Which means the Supreme Court is soon to rule on it, and that could very much change or obliterate the case that Judge Koeltl leans on heavily for his ruling.

Here, Judge Koeltl repeatedly goes back to the Warhol well to make various arguments, especially around the question of the fourth fair use factor: the effect on the market. To me, this clearly weighs towards fair use, because it’s no different than a regular library. Libraries are allowed to buy (or receive donated) books and lend them out. That’s all the Open Library does here. So to argue there’s a negative impact on the market, the publishers rely on the fact that they’ve been able to twist and bend copyright law so much that they’ve created a new, extortionate market in ebook “licenses,” and then play all sorts of games to force people to buy the books rather than check them out of the library."

- TechDirt 

'Koeltl’s ruling—and the rationale behind it—raised red flags for some. Mike Masnick, who runs a tech-commentary site called TechDirt and also co-founded a digital think tank called the Copia Institute, wrote in a blog post that the judge’s reasoning is questionable on a number of levels. Koeltl’s ruling that the Archive isn’t engaged in noncommercial activity, Masnick wrote, is “just weird” since the Archive is clearly a nonprofit and doesn’t charge anything for the digital copies that it lends. Masnick also questioned Koeltl’s decision to throw out any comparison to the Sony and Betamax case. In many ways, Masnick wrote, the Archive’s position “should be seen as stronger than Sony’s, because Sony actually was a commercial operation, and [the Archive] is literally acting as a library, increasing the convenience for its patrons, and doing so in a manner that is identical to lending out physical books.”

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All this gets to the question at the heart of the Internet Archive case: What is a library? Should a nonprofit entity that makes copies of legally acquired books and then allows users to borrow them be considered a library, or does the term describe only a small group of specific physical entities that cut deals directly with book publishers? And is the lawsuit against the Archive a valid defense against copyright infringement, or part of a broader attack on libraries and digital lending? For Masnick, the answer is clear; he titled his post “Publishers Get One Step Closer to Killing Libraries.” Hyperbole? Perhaps. But—like Amazon deleting copies of Orwell’s Nineteen Eighty Four (yes, really) from users’ Kindles in 2009—the Archive case appears to be another example of copyright holders trying to remove rights in the digital sphere that we have become accustomed to in the physical world.' - CJR 

'Right now even the most retiring librarian will tell you that the ecosystem for books is out of balance, and CDL is one small attempt to level the playing field between those who produce and distribute books and those who steward them for many years after publication. A sensible compromise would be to permit the original, modest version of CDL while restricting multiple simultaneous circulations from one physical copy. With its PDF scans and broad focus, including on the long list of books that do not have digital surrogates, a library-based program for digitized books is not much of a threat to the modern, tailored ebook formats that readers prefer for recent works.' - The Atlantic 

'That’s significant, because for the past decade or so, many U.S. libraries have engaged in CDL, by which a limited number of digital copies, based on the number of physical copies a library possesses, are loaned out. Users lose access to these digital copies after a set period of time. The crux of the publishers’ complaint is that they want to charge libraries fees for ebooks, and they can’t do that if the Internet Archive is allowing those libraries to loan out its scanned copies for free. The ebook licenses that publishers sell to libraries, by contrast, have to be renewed after a fixed number of loans or a certain period of time, and they are highly profitable.

The IA, in response, contends that it is doing nothing more than what libraries have traditionally done, loaning out copies of books it has bought. The only difference is that the copies are digital, rather than physical. But with CDL, the IA does not loan out more digital or physical copies than the IA has purchased. The Internet Archive also argues that there’s no evidence this lending has affected the publishers’ profits, which the judge concluded was irrelevant to the underlying legal matter. “Libraries have been around for thousands of years; they are older than copyright law itself,” the Electronic Frontier Foundation, which is representing the IA, wrote in its brief. “Never in the history of the United States have libraries needed to obtain special permission or to pay license fees to lend the books they already own.”

If the ruling stands, the implications for libraries are disastrous. They will have to choose between purchasing licenses for ebooks from publishers for books they already carry every few years and expanding their collections. There should be a reasonable middle ground that is not publishers gouging libraries or giving away works for free en masse. If creating digital copies of books has “no transformative purpose,” it’s also true that ebook-licensing-fee renewals are little more than rent-seeking: The works themselves are unchanged, but the nature of digital delivery allows publishers to charge people in new ways.' - The Atlantic