What is Controlled Digital Lending? The Origin Story

 The bulk of the reporting on the lawsuit between publishers (four of them, led by Hachette) and the Internet Archive's version of Controlled Digital Lending hits one of these points of view:

•  The publishers are evil, money-grubbing idiots going after the generous, saintly Internet Archive
•  The Internet Archive is evil, stealing from the poor publishers and even poorer writers

As is so often the case, it really is more compex than that. I will try to throw a bit of clarity into mix here, mainly by talking about some of the realities of library service in the 21st century, and the origins of controlled digital lending.

The Origins of CDL

Michelle M. Wu, a law librarian and law professor, wrote a piece for the Law Library Journal in 2011 explaining the dilemmas faced by law libraries and proposing a modest solution.

"Building a Collaborative Digital Collection: A Necessary Evolution in Libraries" LAW LIBRARY JOURNAL Vol. 103:4 [2011-34]) (online)

The solution is what became Controlled Digital Lending. The reasons she lays out are the key.

The main argument that Wu puts forth (and that I find convincing) is this: library users either want or actually need to be able to access materials remotely, which means in electronic formats over a network. Increasingly, materials that libraries wish to provide are available from publishers in those electronic formats. The catch, however, is that libraries are not able to own materials in electronic formats, but instead can only subscribe to access services. It is this lack of ownership that is the rub. If a library loses its digital subscription for some reason, such as no longer being able to afford it, it not only loses access to future materials, it loses access to all of the past materials that were included in that subscription. This puts libraries in the terrible position of having to decide between fulfilling their role as the reliable repository and archive of material in their subject area, or of serving the needs of library users. As Wu points out, libraries are already struggling to afford the materials that they feel they should be collecting, so purchasing these materials both in hard copy for archival purposes and also in digital form for user service is entirely beyond the pale.

What Wu suggests in her article is a variation on Inter-Library Loan, combined with a library collective purchasing plan. A cooperative group of law libraries would combine purchasing physical resources for those items that are rarely used but that should be available to the researchers who need them. This is not a revolutionary idea - library consortia have been making use of this kind of approach for a significant amount of time. The difference in Wu's plan is that as items are requested from the consortial holdings, they will be digitized and the digital format will be the one loaned. To stay within the intention of copyright law, in particular First Sale, Wu offers that the digital file will be loaned as a surrogate for the physical copy:

"Materials acquired would be digitized, and only the number of copies acquired in print for each subsequently digitized document would circulate at any given time. The print copy would be stored for archival purposes; only the digital copy would “circulate.”" Wu p.535

The physical resource would fulfill the need for an archival copy, and the digital resource would allow lending to any networked member of the cooperative group. Her solution assumes an effective digital rights management system that would make the loan a loan and not a pirate-able copy.

Wu carefully covers all of the potential legal objections, and points out the various areas of US copyright law that might be touched on with her proposal. Specific areas are First Sale, Fair Use, and the various exceptions to the copyright law that are applied to libraries. She defends the digitization as format-shifting, not unlike the format-shifting that is done for sound recordings as the technology for that medium has changed.

"It is the work itself that is copyrighted, not the form." Wu p. 541

She also addresses what would be an obvious objection of rights holders, that the digital copy is substituting for a purchase. The hard copy would be purchased by the consortium, and given her statement that these would primarily be low-use materials that many libraries would not themselves purchase, no harm would be done to the market which would be limited.

The argument that I find strongest is that of preservation: the US copyright law does allow libraries to make copies of works for the purposes of preservation if no equivalent copy is available for purchase. (Section 108 subsection c) Using the argument that the purpose of the library is to preserve as well as to make works available, Wu says:

"In cases where a digital version is available only for license, a library could argue that such a license is not equivalent to either the print copy or a digital copy they would make, because both of these items would be owned by the library and the licensed digital version would not." Wu p. 539

Context Counts

Controlled Digital Lending is the technology: the digitization of paper works and the lending of the digital copy using management software that prevents piracy of the digital file.  It is the context that makes Wu's proposal different to the implementation of controlled digital lending at the Internet Archive.

• Wu's proposal was for a consortium of law libraries serving their own users; the IA's implementation was open to anyone on the web
• Wu's proposal was for academic materials of low use; the IA's included popular works
• The works in Wu's proposal would have been selected with specific research purposes in mind; the IA's collection was an opportunistic group of books that they had often obtained as second-hand - therefore no research purpose could be argued. (Purpose is one of the Fair Use factors.)
• Wu's proposal argued for the need of libraries to preserve materials that otherwise would not be preserved; the Archive is indeed an archive, known for its preservation of web sites that otherwise would be lost. However, the popular books named in the lawsuit against the Archive are already "preserved" in thousands of libraries who have those physical books on their shelves - the preservation argument is not easily supplied. 

HathiTrust, which is a consortium of libraries that originally contributed to the Google Books project, is an example that follows Wu's approach. HathiTrust  stores digitized copies of books and follows the ruling related to Google Books that searching of in-copyright works is permitted, but not reading. HathiTrust developed its own controlled digital lending service as an emergency service for when a member library is temporarily closed due to a disaster. In that case, users from the member library can borrow digitized books held by the member library in hard copy.

Wu even suggests that libraries might share the burden of digitization by providing digitized copies to libraries that own the books in hard copy. This latter, though, was one of the things that got the Internet Archive in trouble because it became a "digital lending broker" for other libraries, adding their hard copy count to the Archive's lending "units" including some of books owned by the publishers in the lawsuit.

The Upshot

The argument presented by Wu is quite strong and is justified through her careful reading of copyright law, in particular as that law applies to libraries. The extension of her proposal to popular reading materials and to an unlimited user base changes everything. Libraries do have specific collections, identified users, and stated purposes that guide their acquisitions. Something I feel strongly about - that is absent from so many modern information activities - is that effective information use requires purposeful resource selection and organization. Any mass of stored resources is only as valuable as its organization and coherence. In some cases, a "less" that is well organized can be more informative than a "more" that may lack the key works in a subject area. It may be old-fashioned on my part, but I adhere to the concept of defined user goals and the deliberate collection of specific works in support of user learning. This is what I read in Wu's work but which I do not see in the Archive's activities.

I think Wu's context could be understood as falling within the confines of copyright law. I'm not sure that the Archive's case does. I do hope that this current lawsuit does not result in a rejection of digitization for lending for all libraries.