Rob Pegoraro on CDL

In “The Paper-To-Pixels Workaround Activists Want To Use To Keep Libraries Online” in Forbes, Rob Pegoraro gives a useful overview of what Controlled Digital Lending (CDL) is, why librarians want to use it, and the pending lawsuit brought by publishers against the Internet Archive over CDL.

Reporting on a panel discussion about CDL, he concludes the following:

But CDL has yet to get a definitive verdict from courts, with the publishers’ lawsuit against the Internet Archive awaiting a hearing. In the panel, Kahle held out hope for this initiative’s possibilities: “We could build the Library of Alexandria version 2!”

But courts have a history of deciding that introducing a computer to a copyright argument, no matter the nuance of the situation, requires harsher restrictions. And a losing verdict in the Internet Archive’s case risks furthering a future Joseph warned of in the panel: “It’s no longer a library card, it’s increasingly a credit card.”

RF urges reading of the article, especially by those not familiar with CDL or the lawsuit. Mr. Pegoraro rightly notes, though he doesn’t say so explicitly, that the suit is all about CDL itself and not an unlimited use of CDL. The Internet Archive experimented with an expansion of CDL with its National Emergency Library last year, but dropped the Emergency Library over objections. The publishers nevertheless continue the suit. And a loss, as the passage above chillingly notes, would mean libraries could lose their only key to unlocking the license jail cell we are in.

“Copyright law,” as has often been noted, “seeks to find a balance between opposing interests.” In the digital realm, that balance seems out of whack. Libraries cannot share much content that publishers either do not or will not license. Why should we not be able to, using a tool that is all-but identical to how we share print books under Fair Use? If the IA loses, we can hope that federal legislators will realize that he balance in digital realm is tilted too far away from the public interest, certainly on orphan and “gray” titles. To these works, at least, shouldn’t libraries have the right to share as we do in print?