CDL Suit Moving Into Summary Judgement Phase

As reported today by Andrew Albanese in Publishers Weekly, the judge in the AAP/Publishers lawsuit against the Internet Archive (IA) has agreed to hear summary judgement motions. Based on these motions, the court can decide the outcome of the case without going to trial.

As Albanese points out, attorneys for the IA argue that Controlled Digital Lending (CDL) is covered under fair use. A library takes a print book it owns, create a digital copy, archives the print copy, and circulates the digital copy as if it were print under copyright. The own-to-loan ratio of 1-1 remains the same. The digital copy is protected to prevent unauthorized duplication and it is loaded for a limited time, hence the “controlled” aspect of the lending.

They argue that “To the extent that the feared market harms are the very same ones that would flow from handing a particular copy to a library patron, or mailing it to them, rather than lending that copy digitally, those harms are not ones that copyright takes into account. Every copy Internet Archive lends out was bought from the publishers, and it is not fair to demand that libraries pay again to lend the copy they already own.”

They continue to say that libraries must be given the ability to implement CDL legally and the case is of landmark importance because it “will shape how libraries continue to serve the public interest in the digital age.”

Attorneys for the AAP/Publishers counter that the IA is not a library but rather a “massive copyright infringement enterprise.” They further contend, as Albanese explains, that CDL “has no basis in law” and that "the creation of an e-book from a print book falls under the author’s exclusive right to create derivative works.”

This first point is dubious. Calling names doesn’t make a legal argument. On what basis is the IA not a library? It has collected and owns print books that it has digitized, and it is lending those titles without profit. How is that not a library? Were the Institutional and Social Libraries of the 1800’s not libraries? Is my ebook collection somehow more a library than the IA because I have had to license (generally at exorbitant rates when compared to print) titles rather than digitize print? If I digitized print books as a public library, would the digitization somehow make those titles “non-library”? If name calling is the best that these folks can do, we could hope for a summary judgement against them. A trial seems a more likely outcome.

This second point is correct to the extent that CDL has not been legally settled previously, though misleading if it aims to suggest that strong arguments for its legal basis have not been posited. Of course, this is precisely what this lawsuit is about. It isn’t at bottom about the IA’s Open Library. It is about CDL, and CDL itself at stake. Libraries all over the country have a stake in the outcome. Even as we work on laws to make licensing terms more fair, we have to hope that this second prong of our (very much uncoordinated) efforts is validated. Our ability to share millions of works that the publishers will never digitize (since they won’t make money) fairly and sustainably hangs in the balance.