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Member Alert on Controlled Digital Lending (CDL)

Controlled Digital Lending (CDL) is an effort to provide broader access to works held in libraries by creating a digital copy and then lending it out on terms that are ostensibly analogous to the ways that physical copies of books are lent from the library. The practice was initiated last year by the Internet Archive (IA) through its Open Libraries project. now appears to be incorporated as a separate entity from the Internet Archive, though IA continues to promote it.

Proponents of CDL assert that it is especially valuable to remedy limited availability of out-of-print or ‘orphan’* works that experience a surge in demand. However, in practice, the IA and libraries participating in CDL have not restricted their digitization or distribution of copies only to works that are either out of copyright, out of print, or ‘orphaned’. They have, in fact, also copied many works that are still covered by copyright protection, and are still in print and/or are available via electronic licensing arrangements from the copyright holders. IA does not deny this, but asserts that both the copying and the distribution are legal activities.

CDL intends to operate as a digital analogy to traditional print library lending. The library must first legitimately acquire a physical copy of a work. Then, in collaboration with the Internet Archive, a digital replica of the book is created. Subsequently, the digital copy may be ‘lent’ to patrons of the library on a one-at-a-time basis, and may only be lent when the physical copy is not in circulation. In other words, the argument goes, the library purchased one copy of the book, and in theory it may circulate that copy, one-at-a-time, to its patrons. Proponents argue that the digital copy – since it is subject to the same one-patron-at-a-time circulation limit – does not represent a violation of copyright and does not extend the library’s use of the work beyond what would have been allowed with the physical copy. CDL technology enables the library to ‘check out’ the book to a patron on a time-limited basis, and to check the book back into the system when the patron’s borrowing term is over. While the digital version is checked out, neither the physical copy, nor any additional digital copies may be checked out. Once a digital copy is returned, the library may lend either the physical copy or the digital copy, to the next patron who wants it. The technology also has a waiting list feature.

CDL is premised on an interpretation of limitations that exist within copyright law. A Position Statement is published here and we encourage members to read it. The main argument is that this is a ‘fair use’ of the works. ‘Fair use’ is a technical concept in copyright law that provides limited exceptions to a rights holder’s ability to restrict copying and distribution of portions of their work. There is a 4-factor analysis in law to determine fair use, and the CDL website presents a defense of the practice based on the 4-factors, concluding that the copying and distribution of works in this manner is likely to be judged a fair use by a court.

This week, the Association of American Publishers (AAP), posted a strong dissent from CDL’s interpretation of fair use. There are other organizations speaking out as well, but the AAP has a particularly detailed analysis of the flaws in IAs/CDL’s argument – you can find it here, and TAA again urges you to read it to inform yourself on the key issues and areas of disagreement. For this post, we won’t go into a detailed rebuttal of the IA/CDL argument, but suffice it to say that we do not believe a fair use argument can succeed that is premised on the copying and distribution of an entire protected work. In addition to the flawed fair use argument, CDL raises a host of questions about technical matters. Some opponents have asserted that the ‘one-at-a-time’ lending policy is not effectively executed, so that a copy may persist on the computer of a borrower even after they have ostensibly ‘returned’ the book to the library. To be clear, TAA does not believe CDL can be a legitimate distribution method whether or not the technology works as promised, but CDL fails even by its proponents’ own logic if the technology allows for copies to persist after the work has been lent out. Therefore, the question of how and whether the technology works properly is of some interest and should be investigated.

The Textbook & Academic Authors Association (TAA) is continuing to watch developments and considering further appropriate actions it may take.

*Orphan works refers to works still in copyright, but for which no current owner can be located.