OCEAN Experts Dive Into the Legal Battle Over the Future of Digital Lending

By Erin O’Donnell

In the continuing battle between publishers and libraries over access to information, the latest confrontation involves a digital stack of 127 books. The lawsuit over their fate presents a threat not only to controlled digital lending, but also to libraries themselves. In early May, the impact of the decision in Hachette v. Internet Archive was explored in a virtual session hosted by the Open Copyright Education Advisory Network (OCEAN).

“The Internet Archive Case Update and Discussion About Controlled Digital Lending,” the first OCEAN session held this Spring, featured Rina Elster Pantalony, director of copyright advisory services at Columbia University Libraries; Kyle Courtney, copyright adviser at Harvard University; Michelle Wu, a former associate dean of library services at the Georgetown University Law Center; and Pia Hunter, associate director for research and instruction at the University of Illinois College of Law.

The session focused on the March 24 ruling by a U.S. district court against the Internet Archive, which was found to have committed infringement by distributing scanned copies of books online.

The OCEAN session opened with a brief introduction to the history of controlled digital lending (CDL). The panelist Michelle Wu had, in fact, “crafted the legal theory behind Controlled Digital Lending and has dedicated much of her career to showing libraries how to put the concept into practice.” (Internet Archive Blog, Oct. 20, 2020).

Kyle Courtney, who wrote a white paper about the topic “before it was controversial,” explained that CDL allows an institution to circulate a digitized title in place of the “same legally acquired physical title in a controlled manner.” In other words, he said, “we own these books. We have not licensed them. We loan them digitally. We maintain the ‘own to loan’ ratio. We limit the time period and take appropriate steps to prevent downloading and redistribution.”

This description goes to the heart of the Hachette v. Internet Archive. The lawsuit is about 127 books that plaintiffs Hachette Book Group, HarperCollins Publishers LLC, John Wiley & Sons., Inc., and Penguin Random House LLC, claimed were digitally lent without permission. Kyle Courtney’s account of the case so far – the judge has denied the Internet Archive’s fair-use claim argument, and the two sides are working on a final order, which the Internet Archive will immediately appeal – made it clear that the battle will go on. A resolution, which could have a significant impact on libraries around the country, may be years in the making.

When the floor was opened up for questions – “Is CDL dead?” “What did [the panelists] agree with, disagree with, or shake [their] heads at?”

The panelists shared their knowledge and experience, citing the importance of previous court cases and clarifying that this one decision does not mean that CDL is dead. They also explained why this litigation is not about a case of true CDL, mentioned the possible errors in judgment by the court, and discussed the “donate” buttons on the Internet Archive’s website.

The panelists did emphasize, though, the chilling effect of this ruling on libraries and their mission to freely share knowledge was stressed. Pia Hunter cautioned that lawsuits like this one, which push libraries toward the costly practice of licensing materials instead of owning them, represent a “gradual erosion of a library’s ability to lend books for free.” It was a sobering reminder of why the open access movement is so vital to the mission of libraries.

At length, a crucial question arose: What should libraries do now about CDL? The panelists encouraged library staff members to carefully read the ruling, note the factors the court thought were important, meet with general counsel to discuss the consequent risks and proceed with caution.

For a spectator, the biggest takeaway might have been that libraries should not lose hope. The fight to protect CDL and the mission to provide free access to knowledge and cultural heritage will continue.

One more OCEAN session is coming up, and we encourage you to register. To encourage free discussion, all OCEAN sessions, including questions and answers in the chat, are neither recorded or saved.

Erin O’Donnell is the Outreach and Engagement Associate at the Council on Library and Information Resources (CLIR).