LF Amicus Brief Supporting CDL in Hachette Et. Al. v IA

Library Futures has filed an amicus brief (Friend of the Court) supporting the practice of Controlled Digital Lending in the HACHETTE ET. AL V INTERNET ARCHIVE lawsuit, in which the American Association of Publishers (AAP) and Hachette, Harper Collins, Wiley, and Penguin Random House are suing the Internet Archive (IA) over its Open Library’s use of Controlled Digital Lending (CDL).

That the publishers might think the relatively poor quality scans on the Open Library—especially problematic as a user experience on smart phones—are preventing libraries from licensing their (admittedly generally outrageously priced) commercial epubs is farcical. That they allege harm because readers turn to these scans instead of buying is laughable. They probably lose more in torrent site piracy in a day than they have lost legitimate reader sales in the decade the Open Library has been around. But suing they are, and harm they claim. And all libraries have a stake in CDL, hence the amicus brief.

You can read/download the brief here. Kyle Courtney and Juliya Ziskina are its authors. You can also see photo of the brief being hand delivered.

Every Library Institute (ELI) has joined in support. Read their nicely detailed explanation here.

ReadersFirst has also joined.

Here are some excerpts from the brief.

• “CDL uses technology to effectuate a library’s customary mission to acquire, preserve, and provide community access to books for library patrons. Simply put, CDL is a different way of utilizing the centuries-old method by which libraries have loaned the books on their shelves for the public to read.” Yes—the books are paid for, the authors and publishers have been paid already, and the digital scans are shared in one owned/one loaned under fair use with digital rights protection.

• “As technology evolves, libraries continually adapt their services to provide access in innovative ways to better serve their patrons. Each time libraries embrace access-expanding innovations, the courts have repeatedly acknowledged how these practices benefit the public despite publishers’ objections.” Yes—we need to serve where people expect us to be. The publishers are expanding their power under copyright in the digital realm to erode and overturn library’s long-standing right to serve the public. This is to ignore copyright’s dual aim of protecting authors AND advancing knowledge.

• “CDL involves the digitization of paper books, which results in inferior graphic quality and differing customization features. This makes it more likely that the book will be used out of necessity, or only briefly, rather than supplanting the market for the work. The low quality scans (in addition to the digital rights management protections) also make it less likely that downstream bootleggers will make copies of the work. The Plaintiffs claim that CDL serves the same function and purpose as their business. However, despite both disseminating the contents of books, their objectives are substantially different. As with traditional library lending, CDL primarily serves those who only need temporary access to a work or lack the means to purchase the work. Libraries have no profit goals and are motivated by education, the dissemination of knowledge, and preservation.”

CDL allows for fair sharing through Interlibrary Loan. It allows for preservation. It helps those marginalized by income to be informed readers. The existing licensing from these publishers (Harper Collins, it must be noted, is the fairest) directly prevents the first two of these three core functions, and greatly complicates the third. The publishers and the authors have been paid for the works under consideration. In short, as eloquently stated in the brief, “CDL is a feature of ownership, not a substitute for licensing. It is not intended to replace or circumvent a library’s existing eBook holdings, but it can serve as a powerful tool for bridging the gap between print and electronic resources for readers and researchers.”

Librarians must hope that the practice somehow emerges from this case as allowable.

Interestingly, the attorneys for the publishers did not consent to this amicus filing. Why? LF, ELI, and certainly RF members have years of experience in library digital content. We can discuss the practice and effects of licensing, the use of CDL, and the ways that libraries serve the public with true expertise. Shouldn’t the judge hear from library experts? It seems only fair.