![]() ![]() IA is probably best known for its Wayback Machine, which allows you to view old versions of websites and laugh at what passed for user interface design in the late 90s. This all changed in June 2020, when four of the largest book publishers (Hachette, HarperCollins, John Wiley & Sons, and Penguin Random House) filed a copyright infringement lawsuit in the Southern District of New York against Internet Archive (IA). Historically, copyright owners haven’t pursued infringement actions against the relatively few libraries that have implemented some form of CDL, leaving the model legally untested in court. Internet Archive’s “Open Library” Project CDL opponents counter that a library’s purchase of a physical book doesn’t legally entitle it to produce and distribute digital copies of those books. Still, advocates of CDL maintain that so long as libraries only scan and lend books they own, ensure a one-to-one owned-to-loaned ratio, and employ digital rights management tools, the practice qualifies as fair use under existing copyright law. It doesn’t apply to the reproduction right. However, the first sale doctrine only provides an exception to a copyright owner’s distribution right. Physical books that have been lawfully acquired are subject to the Copyright Act’s “ first sale doctrine,” which means that any particular copy of a physical book may be sold, given away, or loaned out without permission from the copyright owner. The reproduction aspect inherent in CDL also highlights an important legal distinction between digital works and traditional print works. Books are copied when they’re scanned and converted into electronic files in the first instance, and at least one additional copy is made when the file is accessed or stored on a patron’s computer or e-book reader. ![]() It’s just the nature of the digital format. If libraries could lend electronic works without copying them, they surely would, but they can’t. Despite its name, controlled digital lending doesn’t merely involve lending, but copying as well. In practice, one key aspect of CDL leaves it vulnerable to legal attack. The theory behind CDL is that by maintaining a consistent “owned-to-loaned” ratio between physical books and digital copies, libraries can meet the needs of twenty-first-century patrons without violating existing copyright law. Once the loan period expires, the electronic book is “returned” to the library and becomes inaccessible to the person who checked it out. When the electronic version is “checked out,” the physical copy is taken out of circulation. As the publishers’ lawsuit now proceeds to the damages phase-and the inevitable appeal- libraries have been forced to rethink the practice of “controlled digital lending.” What is Controlled Digital Lending?Ĭontrolled digital lending (CDL) is a model by which libraries scan physical copies of books they’ve legally acquired and then make the resulting digital versions available for borrowing. The court’s opinion (read here) was as quick as it was decisive, coming just four days after the parties argued cross-motions for summary judgment in the case. ![]() book publishers, rejecting the Internet Archive’s argument that its practice of scanning and lending digital copies of books qualifies as fair use under the Copyright Act. The future of “controlled digital lending” is in doubt after a court rules that the Internet Archive’s online library is not protected by fair use.Ī New York federal judge has ruled in favor of four leading U.S. ![]()
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