Kyle Courtney on the Curtailing of Library Digital Lending

In an Op-Ed in The Hill, Kyle Courtney persuasively argues for the legality under existing copyright laws of Controlled Digital Lending and calls attention to publisher and lobbyist efforts to gut libraries’ ability to circulate digital materials. Here are a few highlights:

[T]he Internet Archive makes digital copies of physical books already in its collection and then lends them to patrons over the internet. Importantly, the Internet Archive lends each digital copy to only one patron at a time. When that person returns the book, it’s available to the next one who wants it. That’s the “controlled” part, and as most will recognize, it is exactly how libraries lend physical books.

It’s also perfectly legal. The law is already quite clear on this. Through the first sale and fair use doctrine of U.S. copyright law, Congress long ago gave libraries and archives the ability to lend books they purchase for their collections. Through fair use, they created a flexible right to amplify modern technological uses. Congress placed value on helping libraries carry out their mission of supplying community access to materials for research, scholarship and study. Without these legal superpowers, it’s hard to imagine how libraries and archives would operate.

Alleging “piracy” and suppression of their book sales, America’s biggest book publishers have sued the Internet Archive for its use of controlled digital lending. (Arguments for the case begin this summer.) Ostensibly, the publishers are asking the court to force the Internet Archive to shutter its digital lending and to destroy its entire collection of 1.4 million digital books. But it’s clear they’re also using this case as a battering ram against controlled digital lending in order to generate more licensing of their e-books.

Courtney does well to draw attention to the “publishers’ longer and broader strategy to exert greater control over libraries through digital content.” Indeed, the strategy has been embraced by more than just traditional book publishers, as the appeal to New York’s governor to veto that state’s library ebook bill suggests. Lobbyists representing content providers in movies, television, music, radio, and even advertising piled on even though nothing about the bill directly impacted those media. So what the reason? The answer is simple: streaming and licensing allow them to use advances in technology to bypass copyright/ownership by individuals as well as libraries. One might seem to be able to get content perpetually on a streaming platform, but it is illusory. One can rent or “buy” movies, for example, on Amazon. But one can never own the material. One can only license it. And access is only guaranteed by paying monthly or annual platform fees. This new business model must, it seems, be fought for even when not directly threatened. Who knows what might happen if publishers had to give libraries fair digital prices? It could, or so it seems at least in the media companies’ fevered nightmares, snowball and threaten the whole scheme.

Let’s not, however, lose sight of Courtney’s point about libraries. The AAP/publisher lawsuit against the Internet Archive the the spearpoint of a larger thrust to keep libraries paying usurious and unfair short-term license fees in order to share content digitally. Libraries’ mission is threatened in an increasingly digital world. It is high time to give codify libraries’ right, rewriting the grossly unfair DMCA. Are any federal legislators willing to benefit their most need constituents rather than just let the international mega-corps get richer and richer? Until then, thanks to the IA for fighting a battle library readers cannot afford to be lost.