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.
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.
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 [1] in her paper Building a Collaborative Digital Collection: A Necessary Evolution in Libraries. [2] 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 [3] alongside a white paper explaining their legal arguments. [4]
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. [5]
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.
CDL is increasingly being considered by a number of libraries and is being followed by library organizations across the United States [6] as well as in other countries. [7] [8] Brazilian experts have argued that CDL can be applied in the country through a systematic interpretation of cultural rights that extrinsically limits copyright. [9] The Internet Archive has gathered together 12 stories from their blog about libraries that are engaged in aspects of CDL. [10] Lisa Petrides argues that in terms of school libraries, CDL is a positive step forward, but does not go far enough. [11]
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. [12]
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. [13]
Authors' and publishers' groups have questioned the copyright interpretations that underlie CDL. [14] 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)" [15] that claimed that CDL "violates the economic and moral rights of authors."
In a news article in Publishers Weekly [16] 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. [17]
Various scholars have framed 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. [18] [19] Libraries are purchasing books from the marketplace in order to loan the books to their patrons. Additionally Judge Pierre N. Leval, also the originator 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. [18] [20]
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. [21] 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. [22]
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 original 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.
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. [23]
Warez is a common computing and broader cultural term referring to pirated software that is distributed via the Internet. Warez is used most commonly as a noun, a plural form of ware, and is intended to be pronounced like the word wares. The circumvention of copy protection (cracking) is an essential step in generating warez, and based on this common mechanism, the software-focused definition has been extended to include other copyright-protected materials, including movies and games. The global array of warez groups has been referred to as "The Scene", deriving from its earlier description as "the warez scene". Distribution and trade of copyrighted works without payment of fees or royalties generally violates national and international copyright laws and agreements. The term warez covers supported as well as unsupported (abandonware) items, and legal prohibitions governing creation and distribution of warez cover both profit-driven and "enthusiast" generators and distributors of such items.
The Association of American Publishers (AAP) is the national trade association of the American book publishing industry. AAP lobbies for book, journal and education publishers in the United States. AAP members include most of the major commercial publishers in the United States, as well as smaller and nonprofit publishers, university presses, and scholarly societies.
Criticism of copyright, or anti-copyright sentiment, is a dissenting view of the current state of copyright law or copyright as a concept. Critics often discuss philosophical, economical, or social rationales of such laws and the laws' implementations, the benefits of which they claim do not justify the policy's costs to society. They advocate for changing the current system, though different groups have different ideas of what that change should be. Some call for remission of the policies to a previous state—copyright once covered few categories of things and had shorter term limits—or they may seek to expand concepts like fair use that allow permissionless copying. Others seek the abolition of copyright itself.
The Internet Archive is an American nonprofit organization founded in 1996 by Brewster Kahle that runs a digital library website, archive.org. It provides free access to collections of digitized materials including websites, software applications, music, audiovisual, and print materials. The Archive also advocates a free and open Internet. As of September 5, 2024, the Internet Archive held more than 42.1 million print materials, 13 million videos, 1.2 million software programs, 14 million audio files, 5 million images, 272,660 concerts, and over 866 billion web pages in its Wayback Machine. Its mission is committing to provide "universal access to all knowledge".
To publish is to make content available to the general public. While specific use of the term may vary among countries, it is usually applied to text, images, or other audio-visual content, including paper. Publication means the act of publishing, and also any copies issued for public distribution.
The National Library of New Zealand is charged with the obligation to "enrich the cultural and economic life of New Zealand and its interchanges with other nations". Under the Act, the library's duties include collecting, preserving and protecting New Zealand's documentary heritage, supporting other libraries in New Zealand, and collaborating with peer institutions abroad. The library headquarters is on the corner of Aitken and Molesworth Streets in Wellington, close to the New Zealand Parliament Buildings and the Court of Appeal.
The first-sale doctrine is an American legal concept that limits the rights of an intellectual property owner to control resale of products embodying its intellectual property. The doctrine enables the distribution chain of copyrighted products, library lending, giving, video rentals and secondary markets for copyrighted works. In trademark law, this same doctrine enables reselling of trademarked products after the trademark holder puts the products on the market. In the case of patented products, the doctrine allows resale of patented products without any control from the patent holder. The first sale doctrine does not apply to patented processes, which are instead governed by the patent exhaustion doctrine.
The Authors Guild is America's oldest and largest professional organization for writers and provides advocacy on issues of free expression and copyright protection. Since its founding in 1912 as the Authors League of America, it has counted among its board members notable authors of fiction, nonfiction, and poetry, including numerous winners of the Nobel and Pulitzer Prizes and National Book Awards. It has over 9,000 members, who receive free legal advice and guidance on contracts with publishers as well as insurance services and assistance with subsidiary licensing and royalties.
Open Library is an online project intended to create "one web page for every book ever published". Created by Aaron Swartz, Brewster Kahle, Alexis Rossi, Anand Chitipothu, and Rebecca Malamud, Open Library is a project of the Internet Archive, a nonprofit organization. It has been funded in part by grants from the California State Library and the Kahle/Austin Foundation. Open Library provides online digital copies in multiple formats, created from images of many public domain, out-of-print, and in-print books.
Google Books is a service from Google that searches the full text of books and magazines that Google has scanned, converted to text using optical character recognition (OCR), and stored in its digital database. Books are provided either by publishers and authors through the Google Books Partner Program, or by Google's library partners through the Library Project. Additionally, Google has partnered with a number of magazine publishers to digitize their archives.
The California Digital Library (CDL) was founded by the University of California in 1997. Under the leadership of then UC President Richard C. Atkinson, the CDL's original mission was to forge a better system for scholarly information management and improved support for teaching and research. In collaboration with the ten University of California Libraries and other partners, CDL assembled one of the world's largest digital research libraries. CDL facilitates the licensing of online materials and develops shared services used throughout the UC system. Building on the foundations of the Melvyl Catalog, CDL has developed one of the largest online library catalogs in the country and works in partnership with the UC campuses to bring the treasures of California's libraries, museums, and cultural heritage organizations to the world. CDL continues to explore how services such as digital curation, scholarly publishing, archiving and preservation support research throughout the information lifecycle.
A copyfraud is a false copyright claim by an individual or institution with respect to content that is in the public domain. Such claims are unlawful, at least under US and Australian copyright law, because material that is not copyrighted is free for all to use, modify and reproduce. Copyfraud also includes overreaching claims by publishers, museums and others, as where a legitimate copyright owner knowingly, or with constructive knowledge, claims rights beyond what the law allows.
HathiTrust Digital Library is a large-scale collaborative repository of digital content from research libraries including content digitized via Google Books and the Internet Archive digitization initiatives, as well as content digitized locally by libraries.
A digital library is an online database of digital objects that can include text, still images, audio, video, digital documents, or other digital media formats or a library accessible through the internet. Objects can consist of digitized content like print or photographs, as well as originally produced digital content like word processor files or social media posts. In addition to storing content, digital libraries provide means for organizing, searching, and retrieving the content contained in the collection. Digital libraries can vary immensely in size and scope, and can be maintained by individuals or organizations. The digital content may be stored locally, or accessed remotely via computer networks. These information retrieval systems are able to exchange information with each other through interoperability and sustainability.
Code and Other Laws of Cyberspace is a 1999 book by Lawrence Lessig on the structure and nature of regulation of the Internet.
Authors Guild v. Google 804 F.3d 202 was a copyright case heard in federal court for the Southern District of New York, and then the Second Circuit Court of Appeals between 2005 and 2015. It concerned fair use in copyright law and the transformation of printed copyrighted books into an online searchable database through scanning and digitization. It centered on the legality of the Google Book Search Library Partner project that had been launched in 2003.
Capitol Records, LLC v. ReDigi Inc., 934 F. Supp. 2d 640 , is a case from the United States District Court for the Southern District of New York concerning copyright infringement of digital music. In ReDigi, record label Capitol Records claimed copyright infringement against ReDigi, a service that allows resale of digital music tracks originally purchased from the iTunes Store. Capitol Records' motion for a preliminary injunction against ReDigi was denied, and oral arguments were given on October 5, 2012.
E-book lending or elending is a practice in which access to already-purchased downloads or online reads of e-books is made available on a time-limited basis to others. It works around the digital rights management built into online-store-published e-books by limiting access to a purchased e-book file to the borrower, resulting in loss of access to the file by the purchaser for the duration of the borrowing period.
The Boston Library Consortium (BLC) is a library consortium based in the Boston area with 26 member institutions across New England.
Hachette Book Group, Inc. v. Internet Archive, No. 20-cv-4160 (JGK), 664 F.Supp.3d 370, WL 2623787, is a case in which the United States District Court for the Southern District of New York determined that the Internet Archive, a registered library, committed copyright infringement by scanning and lending complete copies of books through controlled digital lending mechanisms. Stemming from the creation of the National Emergency Library (NEL) during the onset of the COVID-19 pandemic, publishing companies Hachette Book Group, Penguin Random House, HarperCollins, and Wiley alleged that the Internet Archive's Open Library and National Emergency Library facilitated copyright infringement. The case primarily concerns the fair use of controlled digital lending (CDL) of complete copies of certain books. The case does not concern the display of short passages, limited page views, search results, books out of copyright or out of print, or books without an ebook version currently for sale.
Controlled Digital Lending by Libraries
| Production | |
|---|---|
| Consumption | |
| By country | |
| Other |
|
| Related | |
