August 15, 2023

Our Statement on Hachette v. Internet Archive and Controlled Digital Lending of Materials

The latest development in the Hachette v. Internet Archive case dropped on Friday, and the Judge’s order dropped yesterday. The primary contested point between the Archive and Publishers was whether or not the Archive should be prohibited from using Controlled Digital Lending (CDL) to distribute copies of any books in print, or just those that are licensed by the publishers and available as e-books. Judge Koeltl’s decision confirms that the case should be limited to books available in an electronic format. 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.

A scanned book under CDL does not provide the same interactive experience as an e-book. CDL is primarily used for reference, preservation, or accessibility and may be useful in the following ways, among others:

  • To provide a DRM protected PDF or e-pub copy for students who cannot travel to the library to get a reserves book off the shelf (provided they sequester the physical book)
  • For the print-disabled who want larger print, or to utilize optical character recognition to listen to a book that is otherwise not available in audio format
  • For digital Interlibrary Loan, a common library practice that can provide limited full book access to patrons and which is currently restricted under most licensing regimes – but which has been permitted via photocopying for years

CDL does not replace licensed e-books. To quote our amicus brief, “CDL is a feature of ownership, not a substitute for licensing. It is not intended to replace or circumvent a library’s existing e-Book holdings, but it can serve as a powerful tool for bridging the gap between print and electronic resources for readers and researchers.”

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.

Librarians should be able to purchase and lend reasonably priced materials, and patrons should have a choice to borrow those materials in a variety of formats, including as scans for CDL. The public should be able to read out-of-print or fragile books, and researchers should be able to access the materials they need, even when they live far away from a physical collection.

Our collective efforts as libraries and librarians are particularly vital as the Archive is struck by yet another lawsuit that attacks educational digitization services, this time in the case of music collections. To quote our Engelberg Faculty Director Jason Schultz in the New York Times, “The permanence of library collections may become a thing of the past… If the platforms decide not to offer the e-books or publishers decide to pull them off the shelves, the reader loses out.”

A former Author’s Guild president recently stated “the truly dangerous people in this world are the true believers who want to impose their utopian vision on everyone else.” Call us dangerous, but we are true believers in the power of knowledge, and we want to keep that utopian vision alive. It is only through your support and solidarity that we can do just that. Join us.

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