If publishers have their way, libraries’ digital options will see major cuts

In 2018 I co-wrote, with my colleague David Hansen, “A White Paper on Controlled Digital Lending (CDL) of Library Books.” 

To many, controlled digital lending might sound obscure and disconnected from their own lives, and to be honest, I can see why. After all, controlled digital lending is based on the finer points of well-established U.S. copyright law — loaning books to people — it’s not something a lot of library patrons pay attention to. Moreover, when it’s working seamlessly, it’s a bit like one of those apps that runs unobtrusively in the background of your computer’s operating system. Patrons only notice it when it slows or stops working.  

If a pending lawsuit by major American book publishers challenging its legal limits succeeds, controlled digital lending’s absence might be a lot more noticeable to a lot more people. It will be harder to borrow digital books and other materials from the growing number of libraries that practice controlled digital lending or some form of it. 

Combine that with other efforts by book publishers to curb access to digital content and there are troubling consequences for how an information-based society like ours continues to drive economic, social and political progress.

More than a decade ago, some libraries recognized they could legally adapt their traditional lending practices to meet the fast-growing capabilities and popularity of digital books. One of those libraries is the Internet Archive, whose ambition is to become a repository of a wide swath of literature, video, music, software programs, images and through its well-known Wayback Machine, every web page that ever appeared on the internet.

As part of that mission, the 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.

The lawsuit’s willful ignorance of long-established law meshes neatly with publishers’ longer and broader strategy to exert greater control over libraries through digital content. As digital books have emerged and become more popular with readers, publishers have, for the most part, licensed, not sold, e-books to libraries. Because of that, the publishers can put legal limits on how libraries use the books — for example, allowing only so many lends within a finite time period.

Indeed, nearly three years ago, Macmillan announced it would limit each library system to only one digital copy of new books within the first eight weeks of their release. At the time, the publishing house’s CEO claimed out loud for the first time what they had insinuated for years: that libraries were “cannibalizing” digital sales.

Let’s be very clear that there is no evidence that every library loan should be quantified as a “lost sale” for publishers.

Indeed, book sales, particularly print books, have soared in recent years, and the biggest publishing houses, including those that brought the suit against the Internet Archive, continue to enjoy strong and steady revenue flows.

Publishers’ efforts are steadily eroding the free access to books through libraries that so many people rely on. As Heather Joseph, executive director of SPARC, which advocates for more open and equitable education and research, observed last year, “You still need a card to get access to books, but it’s no longer a library card. It’s increasingly a credit card.” Swapping out the library card for a credit card has dangerous implications for the library’s mission to provide open, non-discriminatory and free access to a library’s collections to the public.

Controlled digital lending, and other practices like it, are a bulwark against that kind of erosion. Through digital lending, libraries and archives make it possible for millions of Americans to get access to books that they either can’t afford to buy themselves or aren’t available in any libraries near them. Digital distribution also helps people with disabilities overcome the physical barriers that keep many of them from going to a library. And when the COVID-19 pandemic closed libraries and kept people at home in 2020, digital lending turned out to be a benefit for many students, teachers, scholars and others to carry on with their learning. Often controlled digital lending was the only way they could access any materials at all.

Again, to most Americans, this debate over digital lending probably feels a bit abstract and maybe even boring. I get that. In fact, I only wish it were more boring, that there would be no challenge to libraries’ ability to call their own shots and serve their communities. But the stakes are too high to ignore. 

The continued and widespread access to our vast cultural record is what moves us forward personally and as a nation. We can’t afford to allow that to slip away. 

Kyle K. Courtney is a lawyer, librarian, Copyright Advisor at Harvard Library and the cofounder of the non-profit organization Library Futures.