More CDL News: A Response to the Publishers in the IA Case

As noted in a press release from Chris Freeland of the Internet Archive (IA), publishers recently filed a reply brief in their ongoing suit against the Internet Archive over the use of Controlled Digital Lending (CDL) in the Archive’s Books Collection. Mr. Freeland notes that Dave Hansen of the Author’s Alliance and Kyle Courtney of Harvard University have responded to that reply brief. This analysis of the publishers’ position, and the questionable legal rulings from the first round in the suit on which that position is based, is well-worth a read.

The authors note that while the IA is arguing that its use of CDL is fair use, the publishers are expanding the basis of suit to question CDL in its entirety:

It is “an attempt to undermine what libraries have done for centuries: lend the books that they already lawfully own. Ironically, the opposition calls CDL a made-up theory created by a “cadre of boosters,” but in actuality, it’s the publishers’ licensing system that is a modern, made-up invention. The works themselves are unchanged, but the nature of digital delivery allows publishers to charge people in new ways. There is nothing in the Copyright Act that states ebook licensing is, or should be, the default way for libraries to acquire and lend books.

Precisely. These are books. The IA has acquired them legally. Why shouldn’t they be able to lend them one person at a time? And here we see the real reason for the publishers’ stand: the drive to take away ownership of content and use licensing to monetize books in near perpetuity.

The authors convincingly demolish the idea that the IA is using CDL for profit:

As IA laid out in its opening brief, it has only received $5,561.41 from Better World Books in the relevant time frame.  That’s an infinitesimally small drop in the bucket compared to the costs that IA has borne to digitize and lend books for no monetary return from readers. . . . For anyone who has actually worked on such projects, it is clear that IA is not archiving or lending books for commercial purposes. The idea that there is money to be made in doing so is laughable. Instead, it is providing access to knowledge and cultural heritage.

My small library got a grant to digitize four works and make them available through the through the Digital Public Library of America. Yes, they were high-quality PDFs, and we outsourced, but they were $425 apiece. CDL is NOT a money-maker. If a library engages in it, money isn’t the reason. CDL would be beyond the means of nearly every library, and the removal of half a million titles (so far) in the IA’s collection is a loss to anyone without the wherewithal use a commercial service to license any book they want.

The authors effectively question whether or not the IA’s CDL is causing commercial harm:

That a library is loaning and controlling those copies is also a major distinguishing factor, because borrowing a book from a library (along with all the special privacy protections one receives) provides a vastly different reading environment than one in which vendors can scrape, process and sell data about your reading experience. Notably, the publishers did not engage with this argument. “IA refuses to pay the customary price and join the Publishers’ thriving market for authorized library ebooks…”

Their argument covers many nuances and should be read in full, but in fact, despite an assumption of commercial harm falsely made in the first hearing, the publishers have never proven that the IA’s non-commercial-use scans have cost them ebook sales. Again, the publishers’ game is revealed: the fair use of materials in libraries that has existed for over a century and benefitted readers (and authors and publishers) is now unacceptable when they have recourse to an unfairly priced way to control and limit reading.

The authors conclude that “CDL simply seeks to preserve the library’s long-established and vital mission to collect and lend books in an increasingly licensed-access digital world.” Just so. RF thanks the IA for taking on corporate giants in a fight for the rights of all libraries and library readers. We can hope for a different ruling than the first as this case progresses. But ultimately, it will be up to Congress to rebalance the horrible wrench away from promoting the “Progress of Science and useful Arts” that the publishers are using to the great detriment of the public..