The Future of Libraries — CDL vs Copyright

'Tosin Adeoti
3 min readMar 20, 2023
(Photo Credit: CCAC North Library/Flickr)

In the age of the internet, the traditional notion of a library has undergone a significant transformation. Gone are the days of trekking to a physical location like I did and rifling through stacks of books to find the one you need. Now, with a few clicks of a mouse, you can access millions of books, articles, and other resources online. This new reality has presented both opportunities and challenges for publishers, authors, and librarians alike.

One of the most prominent players in the digital library space is the Internet Archive, a nonprofit organization that has been at the forefront of the movement to make knowledge freely accessible to all. Their flagship project, The Open Library, is an ambitious effort to digitize and catalog every book ever published. To date, they have scanned and uploaded over 20 million books, making them available to anyone with an internet connection.

But this perceived noble mission has not been without controversy. In 2020, four major publishing companies, including Penguin Randomhouse and HarperCollins, filed a lawsuit against the Internet Archive over its practice of Controlled Digital Lending (CDL). Under this system, the organization loans out digital copies of books in the same way that physical libraries loan out their physical copies. The idea is that only one digital copy of a book can be loaned out at a time, just like only one physical copy can be checked out at a time. The goal is to preserve the scarcity of the book and prevent it from being pirated or shared illegally. CDL is distinct from other ebook services such as OverDrive or Amazon’s Kindle library program, which offer ebooks that are officially licensed by publishers. In CDL, libraries are essentially loaning out digital copies of the physical books they purchase in the same way that they loan out physical copies. This helps to preserve the scarcity of the book and prevent it from being illegally shared or pirated.

However, the publishers argue that CDL is a violation of copyright law and deprives authors and publishers of their rightful royalties. They claim that the Internet Archive is essentially making unauthorized copies of their books and distributing them without permission. The lawsuit also alleges that the Internet Archive’s decision to temporarily waive its cap on how many people could borrow a book during the pandemic was a blatant violation of copyright law.

On the other hand, defenders of the Internet Archive argue that CDL is a legitimate way of making books available to the public and that it is not fundamentally different from the way physical libraries have operated for centuries. They claim that the publishers are simply trying to protect their own profits and maintain control over the distribution of knowledge.

The outcome of this lawsuit could have far-reaching consequences for copyright law and the future of digital libraries. If the publishers are successful in their lawsuit, it could set a precedent that would severely limit the ability of digital libraries to provide access to books and other materials. It could also have a chilling effect on other innovative approaches to knowledge sharing.

The legal position is more complicated, as it is dependent on one’s interpretation of precedent regarding US fair use regulations, which allow for the unauthorised use of copyrighted materials. Even though the publishers make a point of criticising “illegally scanned books,” this practise has been upheld by the courts. In 2014, a judge ruled that Google Books’ and HathiTrust’s huge digital preservation project — which involved scanning millions of books to create a database with complete searchable text — fell under fair use.

In response to the lawsuit, a group of eight current and former university librarians wrote a column defending the Internet Archive and its mission. They argue that the lawsuit is part of a broader effort by the publishing industry to maintain its stranglehold on the dissemination of knowledge and to prevent the development of new models of access.

At the heart of this debate is the question of who should have control over knowledge and how it is shared. Should it be the exclusive domain of publishing companies who put their time and resources on the line, or should it be freely available to all?

This copyright lawsuit might set a precedent, and the arguments on both sides will be put to the test today as hearing starts.

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