I'm reblogging this from myself because I realized that, actually, I have Opinions and I want to express them. I'm an academic librarian, for context.
I saw the 2020 Internet Archive post about their "Emergency Library" and my immediate response was, "But isn't that a huge violation of copyright? I hope they know what they're doing." Spoiler alert: I do not think they knew what they were doing. I think they fucked around and are now finding out.
The thing which makes me the most mad about this (up to and including the potential loss of everything in their archive) is the fact that this whole court case--this court case which is really and truly the Internet Archive's fault, not an overreach on the publishers' side--has made it so, so much harder to ever even potentially get legal sanction for actual controlled digital lending.
What the Internet Archive was doing Was. Not. Controlled Digital Lending (CDL). Actual CDL is when a library takes a book out of circulation, scans it, and then makes the scan available to one person at a time while the physical copy remains non-circulating. One copy of each book to one patron at one time--that's why it's called "controlled".
CDL is most often done for materials which don't have an ebook version.* For instance, the library I worked at in 2020 used CDL to make certain course reserve textbooks available to students remotely.
Librarians are and were aware that while they consider this a Fair Use exception to copyright, CDL occupies a legal gray area.** The case for fair use rests on the arguments that such use is not (or is very minimally) impeding the market because 1) the library is not loaning out more copies than they have already paid for (just doing it in a different medium) and 2) in most cases, there is no competing product from the publisher (the libraries aren't using CDL to replace available ebooks and therefore aren't causing market harm to the publisher). This use is also argued to be parallel to making digital copies of print books to allow visually impaired readers to access them,*** which is a legally established fair use case.
So libraries (some libraries) were cautiously forging ahead with CDL, hoping that if it was ever challenged, it would be found to be fair use, and that maybe it would make the digital lending/ebook landscape just a little bit less broken, and in the meantime knowing that we were making materials more accessible to our patrons.
And then along comes the Internet Archive with their "Emergency Library" where they just make every scanned book they have available to use with no restrictions. No limits to one user per physical book at a time. No considerations based on whether or not a publisher's ebook version is available. And they called that "Controlled Digital Lending".
And in doing so they have potentially harmed actual controlled digital lending for all libraries in the US.
Now every publisher who hears "controlled digital lending" is going to think of the Internet Archive's abuse of the term. Now there's legal precedent that a thing called "controlled digital lending" is a violation of copyright (even though the substance of what's meant is different). Now CDL is forever associated with actual, clear copyright violation.
And that makes me mad because this was all so preventable and is due entirely to the Internet Archive's choices.
*Partly for copyright reasons, but also because scanning a book is actually a lot of work, so buying an ebook is a lot easier. And even with how much libraries get charged for ebooks (if you weren't aware, it's often at least 3 times as much as the retail version, and we don't always even get to keep the license in perpetuity), scanning is so much work it can be more cost-effective to buy a publisher's ebook even leaving aside copyright issues.
**Almost all fair use is technically a legal gray area. Fair use is a defense against copyright infringement (that is, it is essentially permitted infringement), so any fair use case that hasn't been litigated is a sort of Schrodinger's fair use. We (general) act on the considered belief that the use is legally fair, but until and unless it's hashed out in court, no one can know for sure whether a certain use would be considered fair or illegal infringement.
***They're both forms of digitizing owned physical materials to provide access in an alternate format.
